By Larry Shaughnessy
The Obama administration's struggle over how to handle the prisoners and prison at Guantanamo Bay, Cuba, enters a new chapter Saturday when a military judge there will convene an arraignment for Khalid Sheikh Mohammed and four other men for their alleged roles in the September 11 terrorist attacks.
It could be a routine military commission hearing, with charges being read and pleas being entered, or it could be the latest act of a legal and political free-for-all.
"I've had conversations with other people who believe the circus is going to begin with the first appearance," said Rear Adm. Donald Guter, who once served as the Navy's top lawyer.
"One of the most important things that's going to happen at arraignment is the scheduling of the trial and the scheduling of the motions hearings, and I'm sure there will be many," according to Neal Puckett, a lawyer and retired Marine colonel who has spent most of his career in military courtrooms.
Technically, once the five are arraigned, the court has met the constitutional requirement for a speedy trial.
"The reality of course is that no one at Gitmo is getting a speedy trail. The rules are written as such to run the clock from the time that the charges are actually preferred or sworn, and of course that process has sort of started and stopped and started and stopped several times," Puckett said.
Mohammed was brought to Guantanamo Bay in 2006 after being held by the CIA but was not brought to trial until June 2008, when the five suspects first appeared before a military commission on the charges against them.
Under that commission, Mohammed tried to plead guilty. But while the judge was considering the plea, the process stopped. "The original set of rules and laws that were set down under the Bush administration for the trial by military commission were basically struck down by the Supreme Court, so they had to start over and basically put together a new framework, a new regime," Puckett said.
The Obama administration decided in 2009 that the new framework would be the existing federal criminal courts, helping to keep President Obama's campaign promise to close Gitmo. But near instantaneous and impassioned objections from Congress and New York officials, among others, led to that idea being shelved.
Now, the suspects face charges under a reconfigured military commissions system.
Mohammed is expected to appear in court with Walid bin Attash, Ramzi Bin al-Shibh, Mustafa Ahmed al-Hawsawi and Ammar al-Baluchi.
The five are charged with terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury and destruction of property in violation of the law of war.
They face the death penalty if convicted of the most serious charges.
But opponents of the military commissions for these cases say the suspects could benefit from not having hearings in federal court.
"There's no precedence at all to rely on; this is sort of make it up as you go," Guter said. Since there's no precedence for many issues that will probably arise in the trial, any one of them could cause a conviction to be overturned on appeal. Had the trial been in federal court, those issues could have long since been settled.
Guter said he believes that ultimately, it's the victims and their families who could pay the price for the cases being heard by a military commission. "One of the things you want to see is closure and finality, and I think ... if you were in the federal system, you'd get to finality faster. This is a risky way to take care of these trials, these important trials."