Will Khalid Sheikh Mohammed and other 9/11 terrorists ever be tried?

It looks like Khalid Sheikh Mohammed and his fellow terrorists may die of old age before they are ever tried, convicted and executed.

Each passing year without a trial compounds the anguish of the families of almost 3,000 victims. They expect and deserve justice, but are left wanting and disappointed by their government.

There is no good excuse.

The chief architect of the September 11 attacks has been in U.S. custody since he was captured while hiding out in Pakistan some 11 years ago. A key member of Usama bin Laden’s Al Qaeda organization, he is charged with war crimes and murder by an American military commission at the Guantanamo Bay detention camp. He is also exhibit A in proving the adage that the wheels of justice grind slowly. If at all. They need not.

[pullquote]

Early delays were understandable when the U.S. Supreme Court determined that the newly created military trial process was flawed and that greater protections were merited. But that impediment was removed by Congress in 2009 when it remedied the high court’s concerns. Since then the legal clock has been ticking away with scant progress.

Proof is not an obstacle for prosecutors, mind you. Mohammed not only confessed, but bragged about his heinous deeds. Beyond that, a mountain of evidence supports an astonishing 169 overt acts that led to mass murder that terrible day.

So overwhelming was the proof, Mohammed and his four co-defendants advised the commission’s trial judge they would all confess in open court and plead guilty. They would admit the details and depravity of their acts in order to proceed directly to sentencing.

Just when the pursuit of justice was nigh, the newly elected president, Barack Obama, and his Attorney General Eric Holder, inexplicably intervened. They decided, without regard to the families of victims, to drop the military case in favor of federal civilian court jurisdiction, effectively rescuing the defendants from their own imminent convictions.

The military charges were dismissed. It is hard to fathom how President Obama, a Harvard Law School graduate who never really practiced law, thought he somehow knew better than everyone else.

His legal hubris, of course, was short lived. The cacophony of public criticism and an act of Congress eventually forced Obama and Holder to reverse course, sending the entire legal process back to square one a year and a half later. A prodigious waste of valuable time and opportunity. At that point, the defendants reconsidered their guilty pleas and demanded a full blown trial.

And so, a case that was all but over except for the sentencing now drags on with no end in sight. The president’s imprudent, if not foolish, maneuver means that family members of nearly 3,000 victims must endure a heart-wrenching trial in a distant hope that justice will ever be served.

Then there is the financial impact to consider. Stopping the trial, only to start it all over again, is costing American taxpayers more than  $100 million dollars as the case bogs down in interminable procedural headaches, many of which seem apocryphal.

President Obama deepened the legal quagmire by using an executive order to unilaterally alter the Manual for Military Commissions which governs procedures.

All the while, the man who engineered the worst terrorist attack in history resides in relative luxury amid a flat screen TV, books, movies, and outdoor exercise facilities.

No wonder he routinely mocks America.

His defense attorneys have employed a shrewd, albeit transparent, strategy: delay for the sake of delay. They have filed a constant stream of motions challenging everything conceivable, including the authority of the military commission to prosecute. Forget that the Supreme Court has already sanctioned the process as legitimate and proper. It is an unconscionable defense tactic thinly veiled as vigorous advocacy.

Unfortunately, the presiding military judge continues to fall for it. By entertaining countless, time-consuming court hearings on sometimes frivolous motions, he is, perhaps unwittingly, helping defense counsel sandbag the trial and subvert justice.

The judge is like Charlie Brown poised for a kick. The defense team is Lucy holding the football, swiping it away at the last second.

Mohammed and his fellow confederates have been afforded all the due process necessary for a fair trial.

Their rights are virtually identical to U.S. military service personnel who are tried under court-martial proceedings governed by the Uniform Code of Military Justice which has withstood constitutional scrutiny for many decades. But the principle problem with the 9/11 terror trial is a conspicuous lack of urgency or timeliness.

The precept of a speedy trial, guaranteed by the 6th Amendment and incorporated into military law, has been ignored or abandoned. At what point will defense attorneys seek to dismiss all charges, claiming their clients’ right to a speedy trial and due process has been violated? Expect it.

It has been 13 years since the 9/11 attacks and more than a decade since Mohammed was captured. But his trial has yet to begin in earnest.

Compare this to the Nuremberg trials following the end of World War II. An International Military Tribunal was convened promptly within 6 months to prosecute Nazi war crimes involving mass murder. The most prominent trial ended 11 months later with both convictions and acquittals.

Nuremberg serves as a template for the trials of war criminals and terrorists. It represents a confluence of fairness and efficiency in rendering justice. But the tribunal in Guantanamo seems oblivious.

The banal, tiresome truth is that any system of justice dispensed by human beings is fallible. It will inevitably have its flaws and failings. But in the case of the 9/11 defendants, the imperfections of the criminal process and penology are glaring. It is not so much the fault of the system devised, but the people we trust to administer it.

The military commission has either overlooked or forgotten a bedrock maxim of American law: justice delayed is justice denied. 

As the late Chief Justice Warren Burger once noted, “inefficiency and delay will drain even a just judgment of its value.”

In the 11 years since Khalid Sheikh Mohammed was captured, America is no closer to bringing him to the dock to answer for the most atrocious act of mass murder on American soil in our nation’s history. Those in charge of the military tribunal do not seem to understand that justice must extend not only to the accused, but to victims as well. In this case, there are 2,973 deceased victims.

For the families who continue to mourn, the frustrating lack of progress in bringing these five accused murderers to account for their deeds 13 long years ago represents a painful perversion of justice. And an ugly stain on the memory of those who lost their lives September 11, 2001.