Fordham Law

September 11th Conspirators Face Length Military Trial

Karen Greenberg on NY1, May 08, 2012

Media Source

It took ten-and-a-half years to get the accused September 11th conspirators into court, but Saturday’s arraignment hearing in Guantanamo Bay, Cuba made clear that a final resolution could be many more years away.

Defense attorneys in court on Saturday raised a number of issues of fairness.

In military court, unlike civilian court, there are tight restrictions on defense attorneys and more lenient rules on what’s admissible as evidence, like coerced witness statements.

Kenneth Roth, the executive director of Human Rights Watch, was among a handful of observers in the courtroom Saturday. He is a critic of military commissions, which he says are an untested system.

“Whenever you use an untried, brand-new, made-up system, there are many legal issues that that gives rise. And that takes time, and will give rise to delay,” he said.

"Part of it’s just defiance on the part of the defense, defendants and the defense attorneys. But part of it’s just the nature of the beast. We don’t know what a military commission is. We haven’t had them,” said Karen Greenberg, the director of the Fordham Law Center on National Security.

Adding to the trial’s complexity and length is that the men face the death penalty, which the military hasn’t administered in decades.

“Let’s say Khalid Sheikh Mohammed is convicted. Then there will be the phase of the trial, as in Article III courts or federal courts, where they determine whether or not he’ll get the death penalty. And that’s practically like having a second trial,” Greenberg said.

For all that time and trouble, Roth says the outcome will be still viewed as less legitimate.

“If the proceeding is seen as unfair, which is much more likely to be the case before the military commissions rather than federal court, this is going to be a gift to the terrorist recruiters. Because if these men are railroaded to their execution, that is going to generate outrage around the world,” he said.