Covid-19 pandemic delays start of 9/11 trial past 20th anniversary of attacks

The military judge overseeing the Sept. 11 case at Guantánamo Bay in Cuba delayed litigation deadlines again on Friday, postponing the start of the trial of the accused mastermind Khalid Sheikh Mohammed and four accused co-conspirators until after the 20th anniversary of the attacks next year.

The death penalty case, in its eighth year of pretrial proceedings, was already complicated by its remote location, procedural issues, legal challenges and the control of classified evidence by different elements of the U.S. government.

“The coronavirus COVID-19 pandemic has continued to worsen,” the judge, Col. Douglas K. Watkins of the Army, wrote in a two-page order that extended deadlines for another 30 days, for a total of 300 days of delay since the start of the pandemic.

Based on the timetable toward trial set by a previous judge, the selection of the military officers for the jury will now start on Nov. 7, 2021, at the earliest.

The pandemic has paralyzed much of the work of the court, whose participants commute from the mainland to the military commissions courtroom in Cuba for each session. The last hearing in the case was held in February by Judge W. Shane Cohen, who abruptly announced his retirement a month later and has taken a position as a deputy district attorney in Salt Lake County, Utah.

Hijackers seized control of four commercial aircraft on Sept. 11, 2001, and crashed them into the World Trade Center, the Pentagon and into a Pennsylvania field, killing 2,976 people. Mohammed, his nephew and three other men are accused of organizing the plot by training or selecting the hijackers or by assisting them to reach the United States with financing and travel arrangements.

So far, six judges have served on the case since the defendants were arraigned in 2012. Watkins, who is the chief military commissions judge and is based at Fort Hood, Texas, is now presiding after twice trying to replace Cohen.

In October, he assigned Lt. Col. Matthew N. McCall of the Air Force to preside, but prosecutors protested that McCall was unqualified to serve because he had served less than two years as a judge in the military’s court-martial system, a prerequisite for presiding at a military commission. A recent court filing showed that, after prosecutors protested, Watkins sought a written waiver of the requirement from the Deputy Secretary of Defense, David Norquist, who refused.

Earlier, a Marine judge with childhood ties to New York City, Col. Stephen F. Keane, got the assignment but recused himself within weeks after discovering “a significant personal connection to persons who were directly affected by the events of 9/11.”

The pandemic has forced cancellation of all hearings in the case, which recessed in the midst of the judge taking extensive testimony on the question of whether key interrogations of the prisoners at Guantánamo in 2007 are inadmissible at trial because they are tainted by CIA torture.

The pandemic has complicated other aspects of preparing for the joint conspiracy trial.

One of the accused, Ramzi Binalshibh, has not yet met his death-penalty lawyer, who was assigned to the case in April. The lawyer, David Bruck, has said in a court filing that, once he has met with Binalshibh, he would need 30 months to prepare for trial.

One option would be to drop Binalshibh from the case, and give him a separate trial later, something the first judge did for a time in 2014 before reversing himself because the prosecutors objected. Even so, the latest litigation order postpones the start of any version of the case until November at the earliest.