The lawyers handling the 9/11 case still in pretrial hearings at Guantanamo Bay were arguing this week about how much information the government has to turn over to defense counsel about the secret CIA prisons where the men were held and tortured. How much to reveal and how to handle that evidence, which mostly remains classified at various levels of secrecy, has been the subject of countless hearings and thousands of pages of paper submitted in the case so far.
Earlier in the week, lawyers argued over whether it's possible for defense lawyers to effectively represent their clients in the military commissions system, where prison camp rules and government surveillance practices lead to regular violations of attorney-client confidentiality, an ethical requirement for attorneys representing a criminal defendant.
What's striking in the case against the five alleged plotters of the September 11 terrorist attacks is not only that more than 14 years after the worst terrorist attack ever against the United States, which killed nearly 3,000 people and spawned at least two wars, no one has been held accountable. Equally remarkable is that it's now been four years since the charges in this commission were filed, and the case so far has centered largely on the government's own misconduct. Although the 2001 attack on the World Trade Center and the Pentagon was a mass murder of astronomic proportions, all we've heard about so far in the case is how the government mistreated the accused and has repeatedly hampered their ability to get a fair trial. What happened to the victims of those attacks, and the ongoing suffering of their families and loved ones, seems to have no place in the Guantanamo courtroom.
There is no trial date set and lawyers involved have estimated the case won't get to trial before 2025. That's not surprising, given that just this week prosecutors were speaking of having to turn over tens of thousands of classified documents to the court about the CIA "black sites" and interrogations, along with summaries of their contents, so the judge can determine what the accused and their lawyers are allowed to see. Aware of the monumental task, prosecutor Clayton Trivett told the court on Thursday: "We hope to get the case done during the lives of living men."
Watching the procedural details getting worked out can get pretty boring, which is why you won't hear many news reports about it. But underlying this dragged-out ho-hum process is a critical fact: The government could have avoided putting itself on trial and instead focused on seeking accountability for the mass murder that took place simply by conceding its mistakes from the beginning and working out an accommodation in an experienced federal civilian court. That probably would have meant foregoing the death penalty, but the men convicted would most certainly have spent the rest of their lives in prison. As important, it would have demonstrated publicly exactly how the attacks came to take place, holding up for public scrutiny the monstrous tactics used and the barbaric indifference to the lives of innocent people, including many Muslims. It would have dealt a blow to not only the individuals involved, but to the entire organization of al Qaeda that supported them. And it would have demonstrated how a society that's committed its own bad acts can take responsibility for them, and still bring criminals to justice through a fair trial in a respected court of law.
Instead, because the U.S. government fought every step of the way against releasing information about CIA activities and interrogation tactics, and because it insisted on seeking the death penalty notwithstanding its own missteps, the U.S. government has made its own post-9/11 conduct the central issue of the case. The defendants, understandably eager to avoid concluding the case at all, are happy to take full advantage of that.
What we see happening at Guantanamo, then, is a spectacle of tragic proportions. To be sure, it often seems comic, given the frequent outbursts of the accused, the Keystone Cops tactics of the various branches of government, and the bewildered look on the judge's face when he's repeatedly faced with novel issues that the newly-created military commissions are wholly unprepared to resolve. But viewed with some perspective, it's not very funny at all.
The government could still salvage this mess by transferring the case to a civilian court if it could only concede that years ago, it took the wrong path. The tragedy is that the United States still seems not to have learned that lesson.