Most Pressing Question at Guantanamo: When Will it End?

'Quest for the perception of fairness' undermines hijacker trial.

A detainee walks across a recreation ground inside the U.S. military prison for 'enemy combatants' in Guantanamo Bay, Cuba, Oct. 27, 2009.
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GUANTANAMO BAY NAVAL STATION, Cuba—The hearings at Guantanamo Bay this week are going "painfully slow" in the words of one civilian observer, with what is usually a complicated legal process further bogged down by accusations of government wiretaps.

This isn't even the trial for the five men accused of planning and executing the Sept. 11 attacks. That will follow after the completion of these pre-trial hearings, designed to ensure the five men have been properly charged. But nobody knows when the trial will be.

The slog of Camp Justice proceedings leaves many observers wondering if they will ever witness the very outcome boasted by the facility's name.

"The pace of these proceedings, and the fact that it's taken 11 years to even begin them, is one of the most disturbing things about this case, especially for the victims' families," says Daphne Eviatar, senior counsel at the nonprofit group Human Rights First and an expert on the experiment at Guantanamo that forms this hybrid of military, intelligence, and legal influences.

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The nature of the driving forces behind this case makes this a complicated and slow process, she says. The hearings takes place on a remote military installation in Cuba, which defense attorneys have argued hampers legal logistics such as summoning witnesses and gathering evidence.

It would be easier to have the case in U.S. federal courts, Eviator adds. These courts have tried hundreds of terrorism cases since the Sept. 11 attacks with the same combination of a capital crime with national security implications.

Zacarias Moussaoui, a French citizen, pleaded guilty in federal court in 2005 to participating in the Sept. 11 attacks after years of denying his involvement. Ahmed Ghailani, a Tanzanian, was acquitted of capital charges in New York in 2010.

The Obama administration pushed for Khalid Sheikh Muhammad to be tried in a New York courtroom but abandoned those plans after security concerns from Mayor Michael Bloomberg and local police.

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"The government essentially put itself in the position of having to reinvent the wheel: creating a new court system with new rules and new laws, many of which are still uncertain and subject to Constitutional challenge," Eviatar says.

The judge in the case, Army Col. James Pohl, has no legal precedent on which to base his decisions, she says.

"All this means that every single issue—from what information the defense lawyers are allowed to obtain and what witnesses they call, to what sorts of charges are permissible against the defendants, to how the new high-security Guantanamo courtroom and meeting rooms operate—are open to question," Eviatar says.

Defense attorneys don't seem to spare any opportunity to ask these questions.

The live feed of the proceedings was cut off toward the end of the last set of hearings on January 28 by a government organization known as the Original Classifying Authority. Lawyers for the accused have spent much of this week tearing into questions over illegal monitoring of their clients, and the court is forced to oblige.

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"Part of why this is all taking so long is because the court is trying to hard to give the appearance of 'fairness,'" says Steve Vladeck, a law professor at American University who focuses on national security and constitutional law. A civilian court would never strain to do this, he says.

"The real reason why nothing is happening in these cases is because the court is bent over backward to make sure that no one can complain the trial is unfair," Vladeck says. "Put another way, the quest for the perception of fairness is increasingly undermining the ability of the commission to actually satisfy anyone."

The question facing court watchers remains: Will it ever end?

"I imagine so, yes. But I also imagine it will be years yet," says Deborah Pearlstein professor at Yeshiva University's Benjamin School of Law. "Even once the trial is over, there will be appeals through the commission appeals process and appeals to the federal courts here in the United States, up to and potentially including appeals to the U.S. Supreme Court."