After years of delay, the mass murder and terrorism trial of five leading al-Qaeda figures will proceed – not in civilian court, as once promised by the president, but at the American naval base in Guantanamo Bay, Cuba, where Bush-era military tribunals are back in business at the now-notorious complex of prisons.
Facing execution if convicted is Khalid Sheikh Mohammed, long Osama bin Laden's operations chief and the self-proclaimed mastermind of the Sept 11, 2001, hijackings that destroyed New York's twin towers and damaged the Pentagon, killing nearly 3,000 people. Four other al-Qaeda operatives, all alleged co-conspirators in planning and recruiting for the attack, will also face trial.
A top Pentagon official signed off on resuming the death penalty trial Wednesday, a year after the Obama administration said it was resorting to improved military tribunals for the "high-value" al-Qaeda leaders.
The trial of the five will finally get under way on a disused military airfield, overlooking the Caribbean. It began originally on President George W. Bush's watch. But proceedings were halted by President Obama who, on taking office, vowed to close Guantanamo Bay's prisons within a year and shift terrorism trials to civilian courts which, he said, were fully capable of delivering justice.
Instead, faced with blocked funding in Congress and a defiant New York Mayor Michael Bloomberg, the president backed down, abandoning his plan to put KSM – as Mr. Mohammed is widely known – and his co-defendants on trial in Lower Manhattan. Instead, Guantanamo remains open and military commissions have resumed, albeit with somewhat tougher rules of evidence.
Rights groups long dismayed by President Obama's reversal on Guantanamo, objected to using military tribunals. It is "a real tragedy the trial will take place in an illegitimate system … that violates international law," added Andrea Prasow, senior counterterrorism counsel at Human Rights Watch and a former defence attorney in Guantanamo cases. Instead of deeply-flawed tribunals, she added, the families of the victims of the terror attacks "deserve to see real justice."
In a nation where the death penalty is common, the U.S. military hasn't executed anyone since 1961 and the last U.S. military firing squad was for a soldier convicted of desertion, in France, during the Second World War.
Mr. Mohammed was last seen publicly at his 2008 military trial appearance. He told the tribunal then that he wanted to plead guilty, and be executed like a martyr.
Only a unanimous vote by the panel of 12 military officers who serve as a equivalent of a jury, can impose the death sentence . It can only be carried out if the president then personally signs the order. The revised law on the commissions also allows for the president to "commute, remit, or suspend the sentence."
The Pentagon's announcement that the trial will proceed set a 30-day clock running, requiring the five defendants to be arraigned within a month. But even if they all opt to plead guilty – as they attempted to do in 2008 – it could be months before proceedings for a sentencing phase get under way.
Only a handful of military-commissions trials have been completed since terrorism suspects were first airlifted to Guantanamo in late 2001.
Canadian Omar Khadr pleaded guilty to murder, terrorism and spying at his 2010 war crimes trial in Guantanamo. Although several of those were capital crimes, the U.S. government provided pretrial assurances that military prosecutors wouldn't seek the death penalty. None of the handful of low-level al-Qaeda operatives convicted in Guantanamo to date have faced execution.
KSM was captured in Pakistan in 2003. He was water boarded 183 times during the course of years of interrogation, first at a CIA 'black site' somewhere in Europe and later, after his arrival in 2006, at Guantanamo. Confessions extracted using so-called "enhanced interrogation techniques" can no longer be introduced at trial, although corroborative evidence may be sufficient to win convictions.
Military prosecutors defend the commissions, claiming they will deliver justice. In a speech earlier this week to Harvard Law School, the chief prosecutor, General Mark Martins, said: "This has become a matter of the rule of law and of recognizing that at some point justice delayed really is justice denied."
The other four accused al-Qaeda are: Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi. All are expected to be tried jointly.