The 13-hour arraignment of Khalid Sheikh Mohammed and four others was described as a circus by some observers

The 9/11 trial

May 12th 2012 | NEW YORK | from the print edition

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Correction to this article

FOR most New Yorkers, the September 11th attacks are never far away. A clear sky brings to mind that cloudless morning in 2001. An especially loud fire engine can still make the heart pound. On April 30th One World Trade Centre, the skyscraper being built where the twin towers once stood, became the tallest building in the city. The next day marked the first anniversary of the killing of Osama bin Laden. And on May 5th Khalid Sheikh Mohammed, the alleged mastermind behind the attacks, and four other alleged plotters, including bin Laden's former bodyguard, were arraigned in a military tribunal at the Guantánamo Bay naval base.

The 13-hour arraignment was described as a circus by some observers. The defendants, not surprisingly, would not recognise the court. They refused to wear the headsets needed to hear the proceedings in Arabic. They insisted on praying. One made a paper aeroplane. Another was brought to court in a restraint chair and later took off his shirt. Two reportedly leafed through a copy of The Economist . One of the defence lawyers wore a black hijab and suggested the other women in the court should also cover up. At one point, the judge wondered: "Why is this so hard?"

Many people wonder if justice can be found in a military court, especially one taking place in Guantánamo. Three years ago Eric Holder, the attorney-general, proposed to hold the trial in a federal court in New York, a short walk away from Ground Zero. Preet Bharara, US attorney for the southern district of New York, was ready to prosecute the case. Federal courts, after all, have tried more than 400 terrorism-related cases, most recently May 1st's conviction of a man for conspiring to set off bombs on the New York subway.

But Michael Bloomberg, New York's mayor, said the 9/11 trial would be too disruptive and costly. And Mr Holder lacked the necessary support on Capitol Hill. Congress outlawed the transfer of Guantánamo Bay detainees to the United States in 2010, in effect preventing any civilian trial from taking place. Last year Mr Holder abandoned his plan to hold the trial in Manhattan.

The defendants would probably have attempted to disrupt federal court proceedings, too. Colonel James Pohl, the trial judge, showed amazing patience at the arraignment's shenanigans, perhaps to illustrate the fairness of the military court. He is considered independent and experienced: he presided over the trials of the nine soldiers found guilty of abusing detainees in Abu Ghraib prison. Even if the judge and the lawyers on both sides do everything right, any verdict will almost certainly be appealed against. Reforms of the military tribunals have been put place, but are mainly untested. Still, "The gap between the two processes, military and civilian, is much smaller now," says Robert Chesney, a law professor at the University of Texas in Austin.

Many people hope that the present case could be this generation's version of the Nuremberg trials, which were designed to punish Nazis, to remind the world of their atrocities, and to set a standard for fairness. That does not look likely. For a start, the Nuremberg trials took place immediately after the end of the war, while the 9/11 trial will not begin for at least another year, by which time Mr Mohammed will have been in custody for a decade. Victor Hansen, a retired navy lawyer now with the National Institute of Military Justice, fears the proceedings are tainted before they have even properly begun.

Correction: The original version of this article suggested that Victor Hansen had tried cases in Guantánamo. In fact he went there as an observer. This was changed on May 10th 2012.

from the print edition | United States

Victor Cuvo, Attorney at Law

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