GUANTÁNAMO BAY, Cuba — It should be the trial of the century, but most Americans long ago stopped paying attention.
Two decades after the 9/11 attacks and nine years after war crimes charges were filed, the pretrial wrangling in the case against accused 9/11 mastermind Khalid Sheikh Mohammed and four other defendants resumed Tuesday after a long Covid shutdown. It marked KSM's first court appearance in more than a year. No trial date has been set, and none is anticipated any time soon.
Alka Pradhan, a civilian employee of the Defense Department who represents one of the five, called what's happening here a "farce." While other lawyers decline to go that far, nearly everyone seems to agree that the effort to bring these defendants to justice has gone badly off the rails.
"This failure is not on the people prosecuting, defending or the judges involved," said Kevin Powers, a national security expert at Boston College who once advised the Pentagon's office of military commissions on Guantánamo issues. "It's really the way the system was set up. And that's what really people have to understand: The system is set up to fail."
It was 15 years ago Monday that President George W. Bush announced the arrival of al Qaeda detainees at the Guantánamo prison, joining hundreds of other prisoners already held in this U.S. enclave. The reasons the wheels of justice are moving so slowly are many. It's a logistical nightmare to travel here. The military commissions system set up for this trial was created from scratch in the Obama administration, so every rule can be a point of contention — and hours of litigation. There has been frequent turnover of judges and lawyers.
But the biggest factor in why it's taking so long, defense lawyers and other experts say, is the secrecy. It took years for defense lawyers to get summaries of the classified evidence against their clients, and they say they still don't have everything they need, even though they all possess top-secret security clearances.
Inside the courtroom, journalists and family members must watch behind a wall of thick glass. The sound is piped in on a 40-second delay to guard against the defendants blurting out something classified, officials said. And what classified information might al Qaeda operatives possess?
Defense lawyers say there is one main reason so much here is shrouded in secrecy: The government is still trying to hide the details of what happened to the detainees who were held and tortured by the CIA in secret prisons before they were transferred to Guantánamo.
"Covering up torture is the reason that these men were brought to Guantánamo, and the continuing cover-up of torture is the reason that indefinite detention at Guantánamo still exists," said James Connell, a lawyer for Ammar al Baluchi, who, his lawyers say, was a model for the detainee who was tortured in one of the opening scenes of the film "Zero Dark Thirty."
"The cover-up of torture is also the reason that we are all gathered at Guantánamo for the 42nd hearing in the 9/11 military commission on the 15th anniversary of the transfer of these men to Guantánamo."
The prosecution has not granted interviews to the news media for years, longtime Guantánamo observers say, but said in a statement that it was committed to a fair proceeding. In court papers, prosecutors have blamed the defense for the delays, noting that defense lawyers have filed motion after motion challenging huge swaths of evidence.
"The goal of the United States has been to afford fairness in reaching just outcomes to these cases," the prosecution said. "Beyond that, the Department of Defense cannot speculate on matters related to the Commissions' timeline."
Experts say at the rate the case is proceeding, there could be another decade of procedural hearings.
"There's the possibility of having no trial at all," said Madeline Morris, a Duke law professor, who heads the Guantánamo Defense Clinic, which assists defense counsel for military commissions.
"What we've been doing is to have, in essence, no trial at all," Morris said. "It's not necessarily a foregone conclusion that there will be a trial."
Meanwhile, the New York Times estimates that it costs taxpayers around $13 million per prisoner per year to operate the detention facility here, on a rocky coastline in a part of Cuba that the U.S. has occupied since the end of the Spanish-American war.
There are just 39 prisoners now, down from a height of nearly 700.
And while the Biden administration has said it wants to close the facility, a $15 million expansion is underway, officials here said, including the construction of a new courtroom and workspaces.
To get here Saturday, more than a hundred people boarded a military charter at Joint Base Andrews in Maryland at the crack of dawn — prosecutors, defense attorneys, FBI agents, military officials, relatives of victims and journalists — after taking a rapid Covid test. It was a full day of travel, underscoring the logistical difficulty of getting in and out.
After a status conference Sunday, it became clear that even less may happen this week than expected. A senior lawyer on one of the legal teams is absent for unspecified personal reasons, and it's not clear that substantive arguments can proceed.
Bush opened the detention center in 2002 as he launched what he called a War on Terror, with the idea of keeping so-called enemy combatants there indefinitely. He filled it up, mixing low-level foot soldiers with terrorist masterminds, all held without charges being filed.
Amid worldwide condemnation, his administration ended up releasing more than 500 captives and granting the remaining prisoners access to lawyers. Many were sent back home or released to third countries without incident. About 17 percent have re-engaged in terrorism, according to the Office of the Director of National Intelligence. Two former Guantánamo detainees surfaced last month in key roles with the Taliban as they took control of Afghanistan.
As president, Barack Obama promised to close the prison, but failed, though he shrank the population further, to 41. Donald Trump pledged to "load it up" with new inmates, but never did.
Stung by revelations of torture, the CIA and the military long ago stopped holding enemy combatants for more than a few days. The U.S. instead has relied on allies to jail those captured on the battlefield. Critics say it has become easier to kill terror suspects with drone strikes than for America to capture and hold them.
Charges against many of the remaining inmates may not be possible, experts say, either because the evidence is too sensitive or the torture they experienced has tainted the case beyond repair.
Meanwhile, the 9/11 defendants await justice. A plan to try them in New York City during the Obama administration blew up amid widespread political opposition.
"I have no doubt whatsoever that KSM is guilty," said Terry McDermott, co-author of "The Hunt for KSM," the definitive account of how the U.S. tracked down Khalid Sheikh Mohammed.
"He's admitted it himself over and over again. So this should have been a very straightforward, open-and-shut case. If they had done this in the Southern District of New York, where they've done 200 terrorism trials, the guy would have been in jail or executed 10 years ago. But if you've been to Guantánamo, you've seen the situation. The whole thing is ridiculous."
