NEW YORK — Hours before dawn on March 1, 2003, the U.S. scored its most thrilling victory yet against the plotters of the Sept. 11 attacks — the capture of a disheveled Khalid Shaikh Mohammed, hauled away by intelligence agents from a hideout in Rawalpindi, Pakistan.
The global manhunt for al-Qaida’s No. 3 leader had taken 18 months. But America’s attempt to bring him to justice, in a legal sense, has taken much, much longer. Critics say it has become one of the war on terror’s greatest failures.
As Sunday’s 21st anniversary of the terror attacks approaches, Mohammed and four other men accused of 9/11-related crimes still sit in a U.S. detention center in Guantanamo Bay, their planned trials before a military tribunal endlessly postponed.
The latest setback came last month when pretrial hearings scheduled for early fall were canceled. The delay was one more in a string of disappointments for relatives of the nearly 3,000 victims of the attack. They’ve long hoped that a trial would bring closure and perhaps resolve unanswered questions.
“Now, I’m not sure what’s going to happen,” said Gordon Haberman, whose 25-year-old daughter Andrea died after a hijacked plane crashed into the the World Trade Center, a floor above her office.
He’s traveled to Guantanamo four times from his home in West Bend, Wisc., to watch the legal proceedings in person, only to leave frustrated.
“It’s important to me that America finally gets to the truth about what happened, how it was done,” said Haberman. “I personally want to see this go to trial.”
If convicted at trial, Mohammed could face the death penalty.
When asked about the case, James Connell, an attorney for one of Mohammed’s co-defendants — one accused of transferring money to 9/11 attackers — confirmed reports both sides are still “attempting to reach a pretrial agreement” that could still avoid a trial and result in lesser but still lengthy sentences.
David Kelley, a former U.S. attorney in New York who co-chaired the Justice Department’s nationwide investigation into the attacks, called the delays and failure to prosecute “an awful tragedy for the families of the victims.”
He called the effort to put Mohammed on trial before a military tribunal, rather than in the regular U.S. court system, “a tremendous failure” that was “as offensive to our Constitution as to our rule of law.”
“It’s a tremendous blemish on the country’s history,” he said.
The difficulty in holding a trial for Mohammed and other Guantanamo prisoners is partly rooted in what the U.S. did with him after his 2003 capture.
Mohammed and his co-defendants were initially held in secret prisons abroad. Hungry for information that might lead to the capture of other al-Qaida figures, CIA operatives subjected them to enhanced interrogation techniques that were tantamount to torture, human rights groups say. Mohammed was waterboarded — made to feel that he was drowning — 183 times.
A Senate investigation later concluded the interrogations didn’t lead to any valuable intelligence. But it has sparked endless pretrial litigation over whether FBI reports on their statements can be used against them — a process not subject to speedy trial rules used in civilian courts.
The torture allegations led to concerns that the U.S. might have ruined its chance to put Mohammed on trial in a civilian court.
But in 2009, President Barack Obama’s administration decided to try, announcing that Mohammed would be transferred to New York City and put on trial at a federal court in Manhattan.
“Failure is not an option,” Obama said.
But New York City balked at the cost of security and the move never came. Eventually, it was announced Mohammed would face a military tribunal. And then over a dozen years passed.
Kelley said talk of military tribunals two decades ago surprised many in the legal community who had been successfully prosecuting terrorism cases in the decade before. The concept of a tribunal, he said, “came out of the blue. Nobody knew it was coming.”
Then-Attorney General John Ashcroft was not in favor of tribunals and had been supportive of the Manhattan federal terrorism prosecutions, he said.
Now, Kelley said, with the passage of time it will be much more difficult to prosecute Mohammed in a tribunal, much less a courtroom. “Evidence goes stale, witness memories fail.”