9/11 Justice Never Tasted So Bitter

Why co-conspirator trial is a big fat zero

by , October 08, 2013

Quite frankly, I didn’t even want to use you guys, with your dip and velcro and all your gear bullshit. I wanted to drop a bomb. But people didn’t believe in this lead enough to drop a bomb. So they’re using you guys as canaries. And, in theory, if bin Laden isn’t there, you can sneak away and no one will be the wiser. But bin Laden is there. And you’re going to kill him for me. ~ "Maya," CIA operative, Zero Dark Thirty

The above quote catches perfectly what drew crowds to the film Zero Dark Thirty: it’s raw and masculine, aggressive, cold and sexy. This is the way Americans today like their revenge served up – Hollywood style, with a lot blood, grit, and hi-tech "bullshit." Watching "Zero" is like taking a careening horse-drawn hearse down a dirt path at night: the road to redemption or highway to hell, but we’re all along for the adrenaline rush. We know how it ends – number one killer Osama bin Laden is felled in a hail of bullets, our revenge in the form of a Navy Seal warrior and a porcelain-faced doll. Masculine and feminine, guts and grace. Closure, complete.

Revenge sizzles: Bin Laden raid in Zero Dark Thirty

Revenge sizzles: Bin Laden raid in Zero Dark Thirty

Justice fizzles: 9/11 co-conspirator trial at GITMO

Justice fizzles: 9/11 co-conspirator trial at GITMO

While many might have a different interpretation of the film’s message, and more so, its impact – particularly after the now infamous torture scenes, which frankly, leave one feeling inescapably dirty as though just the act of watching is in a way complicity in the act – the movie hit the target with just the right number of viewers (and critics) to make it a major establishment hit of 2012, a year after bin Laden was killed for real (though investigative journalist Seymour Hersh may have some quibble with that official story). Zero is now making the rounds at Red Boxes and on premium pay channels across the country. Simply put, we weren’t there when Osama’s compound in Abbottabad compound was raided – but Zero allows us fly on the wall access, hitchhiking on the shoulder of the huntress until the very moment her kill is cornered and cowering.

Catharsis.

Perhaps that’s what Americans required – to essentially know that bin Laden was dead, and to see the reenactment of his expiration in modern cinematic relief – in order to really "move on," whether the accounts were heavily stylized and skewed in the CIA’s favor or not.

Maybe that is why no one really seems to care that the remaining alleged masterminds behind the plot that killed nearly 3,000 people on 9/11 are being tried in military court right now. Or that the trial is a complete bungle and a perversity of the American legal and constitutional system. Heck, while they might know the name of the suspected "principle chief architect of 9/11," Khalid Sheikh Mohammad, as described by the prosecution, most Americans would be hard pressed to name the others on trial right now: Ahmad al-Hawsawi, Ramzi Binalshibh, Walid bin Attash, and Ali Abdul al-Aziz Ali. They are all charged with conspiracy, murder in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism, among other charges.

All the men have spent better part of the last decade at the Guantanamo Bay prison, the site of a recent detainee hunger strike that again, most Americans paid no attention to save for the niche press and activists (thank you, Carol Rosenberg, Jason Leopold, Kevin Gosztola and others who’ve been dedicated to covering the prison when no one else in the mainstream seems to care). Each of the 9/11 suspects spent time in secret military prisons or "black sites" run by the CIA before landing on the Cuban aisle between 2002 and 2006. They include al-Aziz Ali, who was listed as a CIA "ghost prisoner" by Human Rights Watch in 2005 – just the type of guy Maya’s goons were waterboarding and knocking around in Zero Dark Thirty.

While killing bin Laden closed the book on 9/11’s chief villain, the 9/11 co-conspirator trial, which was supposed to take place in federal court before the Obama Administration caved to pressure and brought it back to the Military Commissions, only serves now to prolong the residual agony. It has exposed America’s dark authoritarian impulses, as we learn more broadly about tactics used to "break" detainees and to keep them isolated, penitent and weak. Just as bad, the trial has highlighted the government’s brazen willingness to subvert the rule of law in its zeal to get the outcome it wants.

A "Kangaroo Court"

The conspirators may very well be the real deal – truly bad guys responsible for planning, financing and helping to execute the horrific attacks on New York and Washington on 9/11. But we may never know the entire truth, nor get to a final adjudication because the trial itself is riddled with so much dysfunction and delay that justice, if and when it comes, will be a mere shadow of what the people wanted in the first place. And it won’t feel particularly good. Why? For a couple reasons:

One, the defense attorneys assigned by the military itself say they are being spied on, their files and emails missing and/or ending up in the hands of the prosecution, their conversations listened to, their clients’ mail being confiscated and read by military officials. The defense attorneys are no longer using Pentagon computers because they fear their work is being tampered with and their every move online, traced. In short, there is no privacy or attorney-client privilege, no expectation of a "fair trial." The prosecution has all the advantage.

Two, key evidence against the men has been tainted because of the very real possibility that it was extracted through torture. When initially captured, each of the suspected co-conspirators were taken by the CIA to secret prisons where they were interrogated under "harsh" or "enhanced" techniques, including waterboarding. We know from multiple reports and investigations that those interrogations likely continued at GITMO. Such evidence should not be admissible, but because the government determines which evidence is classified and can be made available to the defense, there is no way of knowing how much of the government’s case rests on statements or accusations made under this kind of duress.

Chief Prosecutor Col. Morris Davis, who resigned in 2007 in part over the use of torture evidence, was one of several prosecutors over the last decade who left the post because they believed the process was rigged to ensure convictions.

"I could care less about fairness for Khalid Sheikh Mohammed, but I do care about my country and what we purport to stand for," Col. Davis, now retired from the military and a vocal critic of the military commissions and the prison system at Guantanamo, tells Antiwar.com.

"From the start, Guantanamo and the military commissions were predicated on avoiding the law – what for more than two hundred years was our strength – and what has transpired over the past dozen years is proof that departing from our principles was a fool’s errand."

A fool’s errand, in part, because, as Morris points out, only a handful of suspects related to 9/11 has been convicted in the time the tribunal has been in effect, with many of those convictions already overturned through appeal. The only major 9/11 conviction – Zararias Moussaoui, who was convicted as a coconspirator in 2006 – occurred in federal court.

Retired Lt. Col. Lorraine Barlett, who worked on the defense team at the U.S. Military Commissions defending detainee Ghassan al-Sharbi before her retirement last year, tells Antiwar.com:

"Even if convictions are obtained, the whole process was/is so riddled with error, unconstitutional tactics, and dubious evidence that no historical assessment will consider the proceedings anything more than a kangaroo court." 

Putting the torture evidence aside for a moment, there is no way a civilian court would have allowed the kind of peeping and snooping by the prosecution against the defense, she said in a recent email:

In my opinion, there is virtually no doubt that there would be serious ramification all around.  The defense would move to quash (exclude) any evidence wrongfully obtained as a direct or indirect result of such snooping.  It violates the attorney client privilege, not to mention traditional U.S. concepts that form the bedrock of our system – such activities most certainly should trigger application of exclusionary rule / fruit of the poisonous tree doctrine!  In addition, the government (Prosecutor) would be sanctioned for any acts of deliberate misconduct.  In the “good old days”, sometime the entire case could be thrown out for egregious misconduct.

The defense has been complaining for years that the Pentagon (i.e., the prosecution) has had access to all of their online activity and files stored on their computers because as government employees themselves, they are required to sign user agreements that authorize the DoD to "inspect and seize data" stored on the network, and "disclose or use" such information for "any US government-authorized purpose." The defense attorneys are still fighting for their own, separate, secure servers because even the possibility that their files are not private could violate their oath of confidentiality and responsibility to their clients.

This was exacerbated by concerns that the legal snail mail they were sending directly to their clients was being confiscated and read under new military rules. In addition, it was confirmed this year that monitoring devices were placed in the rooms used for attorney-client meetings. This surveillance outrage culminated bigtime when the audio feed during a portion of a hearing for the 9/11 co-conspirators in January was temporarily cut during talk about a supposed CIA "black site" in Poland. Presiding Judge James Pohl had no idea who was doing the apparent censoring – we know now it was probably the CIA.

More recently, it was revealed that "hundreds of thousands" of defense lawyers’ emails were turned over to the prosecution, ostensibly "by accident." This was reported days after a revelation that a huge trove of defense’s files had "disappeared" during an apparent computer network upgrade. As a result, Air Force Col. Karen Mayberry, Chief Defense Counsel for the Office of Military Commissions, has told her team to stop working on DOD computers altogether.

At a hearing last month. Mayberry told the judge that while some of the data was eventually restored, 57 of her investigatory files never resurfaced. She also told Pohl that the Pentagon had been monitoring her attorneys’ web browsing – in real time – and that some of the files that were restored had been modified mysteriously by a third party. In one case, "hidden files had been added to the folder in which the files were stored," according to a recap by GITMO critic and author Andy Worthington for Al Jazeera.

The judge subsequently dismissed a request by Mayberry to delay the trial until the privacy problems could be resolved. As a result, defense attorneys will write old-fashioned handwritten legal motions, and work at Starbucks (free Wi-Fi hotspot) Coffee shops, using external hard drives, personal emails and laptops (though I am told these personal devices are not allowed in certain government buildings).

Justice never tasted so bitter.

The military has made it nearly impossible for the mainstream media to want to cover this trial in Cuba. As a result, the over-all coverage has been sporadic, especially compared to what a trial of this import would have generated in the New York City media market if the trial had taken place there as initially planned.

But going back to Zero Dark Thirty. "You won’t see a more dazzling action sequence in your life," reviewer Al Alexander wrote about the bin Laden killing scene for The Patriot Ledger last January.

Where bin Laden’s killing by Navy Seals gave the audience "dazzling" justice, the legal trial for the actual architects of 9/11 is a great big dud. We have the US government itself to thank for that.

"I expect the show will go on, (the trial) will end exactly as it’s scripted, there will be a lot of back slapping and awards for the actors," said Col. Morris, "but in the long run history will judge this whole chapter as one where America’s light dimmed."

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