Justice Delayed at Guantanamo Bay

Walid bin Attash, who helped select and train hijackers, and Ramzi bin al Shibh, a member of al Qaeda’s Hamburg cell, wear camouflage jackets and headdresses, as if they were still in the Afghan mountains. But the camo is hunting gear from Sears—the Guantanamo Military Commission won’t let them wear anything realistic enough to be confused with the guards’ uniforms.

Ammar al Baluchi, KSM’s nephew and a courier for Osama bin Laden, dresses like a prince in a fictional epic: maroon, fez-like headcap, fancy, dark velvet vest. A richly embroidered prayer rug is slung over the back of his chair.

Mustafa al Hawsawi, a money man, looks like a martyr dressed for the grave, in white linen and a shawl embroidered with Palestinian flags. One way or another, all five are projecting versions of the fantasies common to radical Islamists.

This weeklong December hearing, which I attended as an observer, marked the U.S. government’s first formal presentation of evidence against the five living men most culpable for 9/11. It came during the fifth year of pretrial motions. The trial, now projected to take place in 2019, will no doubt be followed by many appeals. By the time it’s over, justice will have been delayed by decades.

In the courtroom, it wasn’t hard to see why. Start with the rules, which Congress, the Supreme Court and two administrations each had a hand in shaping. The Guantanamo trial procedures are, with a few exceptions, supposed to be as close as possible to those in courts-martial. As a result, every procedural niggle is litigated from the ground up, with no controlling precedents. The rules aim to keep the trial moving by allowing hearsay evidence, and to avoid the controversy over “torture” by excluding evidence obtained via contested interrogation methods. But in the constant litigation over procedure, defense attorneys can fight the former and keep the latter front and center.

Intelligence bureaucracy protocols have complicated the administration of justice. After a defense lawyer allegedly mishandled a piece of classified evidence, a JAG major stammered to the court that it would take a year to resolve the matter through the bureaucracy, during which the trial would stop. The flabbergasted judge compelled an agency head to appear in court and speed things up.

The week I visited, a veteran prosecutor made a hash of an important motion. Mr. al Hawsawi’s attorneys argued that under the law of war, there wasn’t enough sustained fighting between the U.S. and al Qaeda to meet the definition of “hostilities,” before or even on 9/11, and therefore the court has no authority to try the defendants. Supporting this premise was a defense expert witness, a professor of international law.

The government hadn’t called its own international-law expert, and when the prosecutor rose to cross-examine this witness, he ran into a buzzsaw of objections, which the judge cuts short after 12 minutes with a mercy lunch break. In the afternoon, the judge had to intervene to ask the key questions: Wasn’t this court designed to try the 9/11 cases?

This was the worst misstep in a week with too many of them. Nonetheless, the government has a strong case. Prosecutors have presented proof that Mr. al Hawsawi moved money for nine of the 17 hijackers and showed video of him congratulating Osama bin Laden in Afghanistan after the attacks. But being right isn’t always enough to win a trial. And for the defense attorneys these trials are the greatest challenges of their careers.

JAG or civilian, most of these lawyers are able, principled death-penalty opponents. But some show signs of troubling moral inversion. One told me with a straight face that, given all her client has suffered, he should be let out with time served. All the civilian female defense attorneys wore Islamic headdresses when their clients were present—not at the request of their clients, nor for religious reasons, but sua sponte, to build trust. Maybe it works—but it also seems to aid the defendants’ efforts at costumed theatrics. Meanwhile, two of KSM’s attorneys have recently converted to Islam and pray with the defendants in the courtroom during breaks in the trial.

Defense Secretary Jim Mattis visited Gitmo around Christmas, and the Trump administration is reportedly reviewing its approach to the trials. If so, good. Few topics are more in need of top-to-bottom re-evaluation.

Mr. Gallagher is a second-year student at New York University Law School. He was observing the trial on behalf of Judicial Watch and the NYU Federalist Society.