‘9/11 Five’ back in court after pandemic halted proceedings

The five men accused of helping the hijackers plot and carry out the September 11 terrorist attacks appeared in a military court in Guantanamo Bay, Cuba, on Tuesday.

It was the first time the men, known as the ‘9/11 Five’, have appeared in court since the coronavirus pandemic halted legal proceedings in February 2020.

Dressed in white, with a blue-striped Pashtun cap and a checkered blue scarf, Khalid Sheikh Mohammed, the purported mastermind behind the attacks that killed nearly 3,000 Americans, walked briskly into court holding a briefcase, surrounded by military guards wearing masks and face shields.

The diminutive Mr Mohammed uncovered his face, revealing a shock of dyed orange facial hair.

One by one, the other accused were escorted into the large, purpose-built courtroom at Camp Justice, a hilltop section of the sprawling naval base in Cuba.

After Mr Mohammed came Walid bin Attash, clad in a camouflage military jacket and red headscarf. Mr bin Attash is accused of training two of the hijackers in fighting techniques and researching flight times as well as what kind of weapons could be smuggled onto planes.

Mr bin Attash was followed by Ammar Al Baluchi, Mr Mohammed’s nephew. The tallest of the bunch, he wore a Sindhi cap, grey vest and black-rimmed glasses. He is accused of transferring money to the hijackers.

Mustafa Hawsawi, the frailest of the ageing defendants, hobbled in wearing a white thobe and white N95 mask, holding a Quran and prayer rug. Mr Hawsawi is accused of arranging travel for some of the hijackers as well as helping them with finances. He alleges he suffered rectal damage during CIA interrogations and sits on a specially padded medical chair at the back of the courtroom.

Last in was Ramzi bin Al Shibh, accused of running a cell in Hamburg, Germany, that sent several of the hijackers to the US. Mr Al Shibh also wore a camouflage military jacket and white headscarf.

All of the accused, except Mr Hawsawi, chose not to wear face masks during the proceedings, despite the judge’s request that the defence and prosecution teams wear them.

At the back of the courtroom, behind double-pane, soundproof glass, a handful of family members of the victims of the 9/11 attacks sat and watched the proceedings. The audio was broadcast to the gallery, which also accommodates journalists, on a 40-second delay, in case classified information is disclosed.

The case has been marred from the beginning by allegations of CIA torture that defence lawyers say renders much of the evidence inadmissible.

A revolving cast of judges, defence attorneys and prosecutors has further delayed proceedings, making it one of the longest legal proceedings in US history.

Tuesday was the first time Judge Matthew McCall, a US Air Force colonel, presided over the hearings.

Col McCall was first appointed in 2020 by then-chief trial judge Douglas Watkins, but shortly thereafter recused himself after the prosecution objected to his appointment on the grounds that he had not been a judge for more than two years, the minimum requirement to preside over a military commission.

Once Col McCall had passed the two-year mark as a judge, he was reappointed and officially took on the case on August 20 of this year.

He said he was chosen for the job because they wanted to avoid another judge retiring before the case even gets to trial.

“I think this case requires some patience because it’s a difficult case logistically and legally,” he told the court.

The day was supposed to be dedicated to the judge's voir dire - a quirk of the military commission that allows the defence and prosecution to question the judge on his qualifications.

Two hours into the first proceedings in more than 18 months, the trial once again ground to a halt when an appellate ruling from the US Court of Military Commissions Review, the presiding authority over the military commission, came through.

The ruling essentially reaffirmed Col McCall’s right to sit on the bench.

It also rejected an appeal by the defence to overturn a decision by Judge Watkins, who, as temporary judge, authorised the further destruction of a CIA black site where Mr Al Baluchi was reportedly held right before he was transferred to Guantanamo in 2006.

“One of the reasons why this is so important is that the temporary judge who replaced Judge McCall issued a very important order, finally authorising the destruction of a black site which we wanted preserved as evidence in the case,” said James Connell, counsel for Mr Al Baluchi.

The judge called the court to recess to allow the defence and prosecution a review of the ruling.