A Special Report: How a 5-minute phone call put 9/11 trial on hold for more than a year
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In August 2013, one of five men accused of helping carry out the September 2001 terrorist attacks met with his defense lawyers in the US detention center in Guantanamo Bay, Cuba.
Ramzi bin al Shibh, who military prosecutors say relayed money and messages to the 9/11 hijackers, asked his lawyers to send a message to his nephew in Yemen. After the meeting, the defense team's translator went to another part of the US Navy base, called Yemen from a landline and had a five-minute phone conversation with Bin al Shibh's brother.
Defense lawyers say the translator conveyed an innocuous message from Bin al Shibh in which he urged his nephew to study hard in school. But two years on, that five-minute phone call, which has not been previously reported, continues to hinder the course of justice in the military commissions set up to prosecute people held at Guantanamo Bay as enemy combatants in the US war on terror.
When they learned of the call in April 2014, US officials feared that Bin al Shibh might have conveyed a coded message to al Qaeda operatives in Yemen. The Federal Bureau of Investigation launched a botched effort to turn a member of Bin al Shibh's defense team into a confidential informant.
Outraged defense lawyers then waged legal war on the FBI and military prosecutors, halting the trial of all five 9/11 defendants. The trial has yet to resume.
Experts said the call and the legal trench warfare it sparked is the latest example of how president Barack Obama's effort to reform Guantanamo's military commissions - by appointing experienced death penalty defense lawyers and other legal changes - has failed. The changes, Obama said at the time, would restore legitimacy to the commissions and make them, alongside terrorism trials in civilian courts, sources of swift and sure justice.
Instead, the experts said, the reforms inadvertently spawned legal paralysis and court proceedings that sometimes veer into farce.
"By any measure, the commissions have been a failure," said David Cole, a Georgetown University law professor. "They've obtained almost no convictions other than a handful of guilty pleas, and many of the convictions have been overturned on appeal."
Nine years after president George W. Bush created the commissions and six years after Obama reformed them, only eight defendants have been fully prosecuted. Three verdicts have been overturned. Most of the 36 detainees whom the Obama administration said it would prosecute have not been charged. Fourteen years after the crime, the trial of the 9/11 defendants remains years away.
The death penalty defense lawyers appointed as part of Obama's reforms have blanketed military judges with pre-trial motions that challenge nearly every aspect of the 9/11 trial. A former defense team member who asked not to be identified called the proceedings a "fiasco."
"It's been in pre-trial motions for three years," this person said. "You've got four years at least of motions waiting to be heard."
US army general Mark Martins, a Harvard Law School graduate who was named chief prosecutor of the military commissions in 2011, defended the pace of the trials. In an interview and in public speeches, he argued that the military commissions are fair, lawful and protect the American public.
"Detention that is secure, humane and legitimate has assisted in protecting innocent peoples against al Qaeda," he said in a speech in September.
But administration officials who have worked on Guantanamo for years privately concede that the commissions have ground to a halt.
"It's a struggle," said one official, who asked not to be identified. "If you look at the history and where we are today, obviously it's a challenge."
BREACH OR NO BREACH?
The call to Yemen immediately sparked division in the Bin al Shibh defense team, according to two people familiar with the matter. The rift reflected longstanding confusion and disagreement over security procedures at the trials. Some team members thought that relaying a message by phone to Yemen, an al Qaeda stronghold, was a breach of Guantanamo's security protocols.
"We don't know what type of code could have been in the [message]," said one of the people with knowledge of the matter. "We don't know if he could have revealed some important information through it."
Before the 2001 attacks, Bin al Shibh, a native of Yemen, shared an apartment in Hamburg, Germany, with hijacker Mohammad Atta and applied to receive flight training in the United States. After repeatedly being denied a US visa, Bin al Shibh allegedly wired funds to plotters already inside the United States.
After he was captured in Pakistan in 2002, Bin al Shibh was held for four years at a US Central Intelligence Agency detention center, or "black site," before being moved to Guantanamo Bay. In 2008, military prosecutors charged Bin al Shibh with hijacking, terrorism and mass murder for his alleged role in the 9/11 attacks.
In a May 2009 announcement, Obama said he would reform, rather than abolish, the military commissions. Obama argued that rule changes, including barring statements made under harsh interrogation and making it more difficult to use hearsay as evidence, would make the commissions more credible.
Republicans welcomed the move. Legal experts predicted it would fail.
Eric Freedman, a Hofstra University law professor, said the reforms didn't remove one of the military commissions' core legal problems: Many of the terrorist activities with which some detainees were charged were civilian crimes, not war crimes. Under international law, military tribunals can try defendants only for war crimes.
