Relatives keep watch over ill-fated 9/11 trial

On a May morning more than two years ago, Rita Lasar and Debra Burlingame waited in silence as the lights dimmed in a movie theater on an Army base deep in Brooklyn, N.Y. The hundreds of seats in the Fort Hamilton theater are, on other occasions, filled with soldiers and their families watching blockbusters. But today, the nearly empty theater has been repurposed to show close family members of 9/11 victims the opening day of the long-awaited trial of the five men accused of masterminding the attacks that killed their loved ones.

Both Lasar and Burlingame lost adored brothers in the Sept. 11 attacks and had waited more than a decade to see the men accused of their murders face justice. Lasar’s brother, Avrame Zelmanowitz, died while waiting for paramedics to rescue his wheelchair-bound co-worker in the North Tower — he didn’t want to leave his friend alone. Burlingame’s brother, Charles Burlingame, was the captain of the American Airlines plane that was hijacked and crashed into the Pentagon that morning.

Though Khalid Sheikh Mohammed and the other four suspected plotters were captured just two years after the attacks, it had taken 10 years to get to this day, the arraignment under a military court slightly modified by the Obama administration to appear more credible to human rights critics. During that time, family members like Lasar and Burlingame had been on tenterhooks as politicians brawled over whether the accused plotters should be tried in a newly created military system, as enemy combatants, as President George W. Bush had wanted, or in the civilian court system, as terrorists, as President Barack Obama had requested. Their names were invoked at every turn by the politicians: Justice for the families, each side argued.

In June 2008, Mohammed, who was waterboarded 183 times while in CIA custody, was arraigned in military court and confessed to orchestrating the attacks. But Obama halted the accused attackers’ military trials as soon as he took office, and his attorney general, Eric Holder, began trying to sell the plan to move the trial to a federal courthouse in Manhattan. The president told dozens of family members in a meeting in the Roosevelt Room in February 2009 that any military commission conviction would most likely be overturned by the Supreme Court. He promised “swift and certain justice” in the civilian system. But the plan blew up, and even loyal Democrats abandoned the cause as political suicide.

Holder admitted defeat in the spring of 2011, thanks in part to the efforts of Burlingame, who led a vocal faction of 9/11 family members opposed to moving the trial away from Guantanamo Bay detention camp in Cuba. She co-founded a group called “Keep America Safe” with Vice President Dick Cheney’s daughter Liz to make her point that terrorists would walk free if they were allowed to be wrapped in the Bill of Rights in the softer civilian system.

Lasar, who led a smaller faction of 9/11 relatives who favored civilian trials, called “Sept. 11 Families for Peaceful Tomorrows,” was crushed that Holder was forced to fold to Congress and abandon his plan. She said she was worried that the men would be unfairly convicted in a kangaroo court. Leaving the 9/11 suspects’ legal fate in the hands of the military was supposed to produce faster and more assured convictions and executions — but it didn’t turn out that way. Today, on the 13th anniversary of the attacks, the perennially stalled trial is mired in lawyers’ pretrial squabbles and is likely years away from even jury selection.

The military trial’s unfolding chaos first became apparent that May day two years ago when 34 of the relatives were finally gathered in the Brooklyn theater for the arraignment. The gathered relatives could agree that they wanted to see justice, even if they disagreed on the forum for it. Lasar and Burlingame, for example, are on opposite sides of the ideological spectrum, but they share an intense passion for this trial. Burlingame, a former attorney who lives in upstate New York, was at this point a battle-hardened activist for military-style justice, having spent 10 years as a lightning rod in the national debate over the response to the attacks. Lasar, a committed antiwar activist, had a lower profile than Burlingame nationally but sensed that her outspoken criticism of the military commissions had made her a polarizing and somewhat unpopular figure among many of the 9/11 relatives. The chasm that separated both women’s politics didn’t change the fact that they were bound together by the tragedy they shared. “We’re family members, whether we want to be or not,” Lasar says of the group.

At 9:23 a.m., the giant screen lit up with a grainy scene beamed straight to Brooklyn from Guantanamo Bay, Cuba, via closed-circuit video. The video feed is on a 40-second delay so a special court officer has time to censor any part of the proceedings he believes are classified. When the court officer pushes the “censor” button, a red light next to him flashes on, and the video feed to Brooklyn and other remote viewing locations is abruptly shut off. (One Guantanamo defense attorney, James Harrington, told me this reminded him of “the light that flashes after goals in hockey games.”) Some relatives were also observing the trial in person in Cuba, from a small peanut gallery behind soundproof glass in Camp Justice. The military runs a lottery for relatives to go on closely chaperoned, small-group trips to Guantanamo to watch the proceedings. A few reporters and human rights advocates observe as well.

Khalid Sheikh Mohammed and his four accused co-conspirators — including one wheeled in on a restraint chair — refused to speak to the military judge, Army Col. James Pohl, when he asked if they understood the thousands of murder charge counts they faced. Pohl warned their defense attorneys that he would listen to all their complaints at a designated time in the trial, but he was quickly interrupted by a lawyer who wanted to cite a Supreme Court case to object to the entire existence of the trial. One accused attacker stood up and began praying out loud outside of the designated prayer time, delaying the proceedings for 20 minutes. The defendants’ translation headphones kept falling off, forcing the court to translate the proceedings into Arabic over a loudspeaker. The judge and attorneys yelled over the din of the translation in order to hear each other in English. At one point, defense attorney Cheryl Bormann suggested that women on the prosecution team were dressed immodestly and were offending her client’s religious sensibilities, causing some of the family members watching in Brooklyn to audibly protest. Two of the defendants leisurely leafed through a copy of the Economist, further enraging the watching family members.

Robert Reeg, a firefighter who was severely injured responding to Ground Zero and a friend of Burlingame’s, remembers feeling incredibly frustrated that Pohl didn’t come down harder on the defense’s antics as the hours passed in the theater. He decided that the pressure from human rights groups, who objected to the entire military commission system, had made Pohl hypersensitive to being perceived as too antagonistic to the defendants. Even Burlingame, who had fought so hard to keep these men in Cuba, said she felt a sinking feeling as the day dragged on.

“I just got a really bad feeling about what was going to happen,” Burlingame said of watching the arraignment. “The trial is going to take a very long time.”

And then, after a brief lunch break nearby where the family members chatted politely with each other, the defense team demanded something truly unbelievable. They asked for the entire 87-page indictment, a damning document accusing their clients of a host of ills, to be read out loud and translated simultaneously into Arabic. Defense attorneys don’t typically want the court reminded of the charges their clients face.

“In 12 years of being a judge, this is the first time I’ve heard counsel wanting them to be read,” Pohl said in disbelief. But he allowed it.

Relatives began trickling out of the theater, frustrated and angry. The last part of the charge sheet is simply the full names of all 2,976 victims, which the court officer read out loud. Two and a half hours later — when the last names had been read and the Cuban video feed had been cut — only Burlingame and Lasar remained in the theater, two lonely sentinels for justice. It was 10:30 at night.

The two women thought that day would never end, but more than two years later, the disorderly arraignment seems like an omen of the chaos that was to come. The court is still bogged down by lawyers’ spats and by one attorney’s estimate that it is at least two years away from the jury selection phase. The defense and prosecution have argued in motion after motion over whether Khalid Sheikh Mohammed should be allowed to wear a $39 camouflage vest, instead of his prison garb, to Camp Justice, for example, or over what hour in the morning guards should be allowed to wake him.

Mohammed was captured 10 years ago but has yet to even submit a plea of guilty or not guilty for the crimes the government has brought against him. Neither have the other four men. On one surreal day last year, Judge Pohl appeared to realize for the first time that offsite CIA operatives were able to push the “censor” button without his permission to cut off the video feed. He angrily ordered the agency to “unconnect whatever wires need to be unconnected” so that he again could have sole control over censorship. Meanwhile, federal courts have consistently slapped down the military commissions, limiting their powers and calling into question whether their convictions — assuming they’re ever reached — will stand up under appeal.

And yet for the people most affected by the crime at issue, those who lost a close family member on Sept. 11, this trial is all they have. It’s the closest thing to justice their government has offered them.

“Trials are about healing, justice is about healing and taking the venom out of something that otherwise people would just go out and exact justice on their own,” says Karen Greenberg, the director of the Center on National Security at Fordham University’s law school and a critic of the military commissions. “This country has not made good by these victims.”

What’s more baffling, given the country’s continuing preoccupation with 9/11, is that no one seems to care that much. Before the arraignment, media outlets pumped up the proceedings as the “trial of the century.” But the public has paid little attention to the slow-as-molasses trial since then. Even many family members have stopped watching and attendance at the base's movie theater has dropped off since the arraignment two years ago — more from frustration than disinterest. Burlingame hasn’t been back. She says she’s waiting for jury selection before she returns. “This stuff drags you back to a really dark place,” she says of the reason many relatives have stopped following the trial. Lasar has found herself the only one to show up to the base on several occasions, a spectral presence in the giant theater, keeping watch over a trial that was supposed to matter.

Lasar, an energetic 82-year-old, is technically retired, but her passion for the trial in Guantanamo is essentially a full-time job. She has kept track of every twist and turn of the proceedings, possesses an encyclopedic knowledge of the motions that have been filed, and closely follows all the unfolding dramas as they emerge — among them, whether an FBI informant infiltrated the defense team and the ongoing debate, now more than six years old, over the mental fitness of one of the defendants, Ramzi bin al-Shibh.

In addition to her support for a civilian trial, she’s well known among the other 9/11 family members for not wanting any of the accused terrorists to be executed, because of her personal opposition to capital punishment. During breaks in the proceedings at Fort Hamilton, Lasar tries to make polite conversation with relatives who feel very differently. “I’m not well loved,” she says, unperturbed. “But I’m not hated to my face.” (Reeg, the firefighter, says that some conversations at Fort Hamilton can become “divisive” and heated but that, for the most part, everyone remains cordial.)

On the few occasions when Lasar hasn’t watched the trial from Fort Hamilton’s movie theater or in person at Camp Justice in Guantanamo, the octogenarian sits in front of her computer in the spare bedroom of the East Village apartment that she shares with her cat, Moxie, refreshing the Twitter feed of Carol Rosenberg, a Miami Herald journalist who’s been covering Guantanamo’s prison and military commissions since 2002.

As frustrating and disappointing as the trial can be, it also carries a strange fascination for her. “It’s as interesting as Shakespeare is,” Lasar says.

As the military tribunal has dragged on, circuslike, in Cuba, the Obama administration has moved several terrorist suspects through federal court.

Last March, a federal jury in New York quietly convicted Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, of terrorism within a year of his arrest. The contrast between the inefficacy of the Guantanamo commissions and the federal courts has not been lost on some of the family members who were most ardently opposed to the federal system.

“The judges in federal courts are much stricter than Judge Pohl,” Burlingame says, citing Judge Leonie Brinkema, who presided in the case of the 20th hijacker,  Zacarias Moussaoui. “She was very tough on the attorneys. She had Moussaoui behaved. The minute he misbehaved in court, she said, 'Stop it, or you’re out of here.'”

But despite Burlingame’s admiration for the way federal judges have handled terror cases, she still believes that approach would not work for Mohammed or any of the other high-value detainees. Because they were in CIA black site custody and captured “on the battlefield,” their cases contain more classified information and should be subject to the military censorship Guantanamo can provide, she says.

Burlingame and other family members who support the military tribunal blame the defendants’ attorneys for slowing down the process by filing hundreds of what they believe are frivolous motions. Burlingame says she’s “disgusted” by their tactics.

Jim Harrington, who defends accused attacker Ramzi bin al-Shibh, said that none of their motions are frivolous — they’re just trying to navigate a completely new court system whose rules sometimes appear to get made up as they go along.

“You have to remember that the government took 12 years to start this case, and now everybody accuses us of trying to delay, but any kind of delays that we have caused have all been for good reasons,” Harrington said.

Col. Morris Davis, who used to be lead prosecutor for the Guantanamo tribunal until he resigned in 2007, said he thinks it’s clear the commissions aren’t working, despite the best efforts of Brig. Gen. Mark Martins, the well-respected current lead prosecutor. Morris was at Guantanamo when the 14 high-value detainees, including the 9/11 five, were transferred from CIA custody to prison in 2006. “Of that group there’s only one who’s been tried and convicted, and his case is over and done,” Davis said. “And that case is Ahmed Ghailani, who was prosecuted in federal court.”

Ghailani, a suspect in the 1998 U.S. Embassy bombings, was convicted of just one of the 285 charges he faced in a federal court in 2009. Though he was still sentenced to life in prison, the shaky outcome fueled critics of the use of federal courts for terror trials and helped kill Holder’s civilian court plan.

“I could care less about Khalid Sheikh Mohammed, but it does concern me what this trial will say about us as a country and as a people,” Davis said.

Jim Riches, a retired firefighter whose son, also a firefighter, died at Ground Zero, said he wants to ask the politicians who argued so fervently against civilian trials in New York for the 9/11 five what they think of their decision now. “Are you sure the military tribunals was the correct way to go?” he asks. “Where are those people now? They didn’t lose anybody, but we lost people.”

But the trial has now dragged on for so long that even the finger pointing — a sport in Washington — seems to have played itself out. All that’s left is a weary fatalism about how and whether justice will be served.

“In any other situation, if you said your loved one was gunned down on the street tonight and it’s going to be 13 years before the trial starts, nobody would stand for it,” said Neil MacBride, the former U.S. Attorney for the Eastern District of Virginia. “The DA would be impeached.”

In the absence of repercussions or change, Lasar still keeps her lonely watch over the trial proceedings, hoping for convictions for the five men who stand accused of taking her brother from her.

“I hope I’m alive to see it,” Lasar said on a recent hot day in August. If there ever is a conviction, she’ll be in the center of the Fort Hamilton movie theater, watching.