GUANTÁNAMO BAY, Cuba — It was speculated to be a listening to meant to get the case in opposition to the 5 males accused of plotting the Sept. 11 assaults again on observe after a protracted delay brought on by the coronavirus pandemic.
Instead, it become one other instance of how authorized maneuvering and a altering solid of characters proceed to sluggish the method of attempting the defendants 20 years after the horrific occasions that the prosecution says they helped set in movement.
Guards led the 5 males, together with Khalid Shaikh Mohammed, who’s accused of being the mastermind of the plot, into the courtroom on Tuesday for the primary time because the pandemic halted the pretrial proceedings.
A lawyer for Mr. Mohammed had simply begun to query the brand new choose, Col. Matthew N. McCall, concerning the circumstances of his project to the case when a prosecutor, Clayton G. Trivett Jr., introduced that the U.S. Court of Military Commission Review had issued a 23-page ruling on a problem to the army fee choose choice course of.
Colonel McCall then recessed the listening to till Wednesday to present the legal professionals the remainder of the day to evaluation the choice.
The delay seems prone to be transient. Even so, the morning’s developments confirmed how tough it’s to get the proceedings transferring. Plans to start the trial this yr have lengthy since been shelved, with the purpose now to start in 2022 on the earliest.
Mr. Mohammed regarded a lot as he did at his final court docket look in February 2020. He eliminated a face masks to disclose an orange-dyed beard and chatted amiably with a few of these accused of being his accomplices. Soldiers in battle gown stood guard close by in black masks and plastic face shields in adherence to strict protocols to safeguard the residents of the distant base from the virus.
This week’s hearings have been preliminary in nature, however they took on significance due to the timing. Colonel McCall is holding his first hearings in the case on the eve of the 20th anniversary of the assaults and after a 19-month break in pretrial hearings. The earlier choose abruptly retired from service at the beginning of the pandemic and prosecutors had struggled for greater than a yr to get virus protections in place and a choose assigned to get the hearings restarted.
More than a yr of testimony and authorized arguments have been postponed in pretrial preparation, notably in the protection groups’ effort to get key proof excluded. The protection argues the proof is tainted by the C.I.A.’s torture of the prisoners throughout their three and 4 years of incommunicado detention earlier than their switch to Guantánamo Bay over Labor Day weekend in 2006.
Colonel McCall’s ambitions for the week have been modest: Allow legal professionals to query him about his background to see if any of his relationships and expertise may represent conflicts or bias, and then meet individually with protection legal professionals and prosecutors about categorised data.
But in its ruling concerning the choose choice course of, the Pentagon appeals panel nullified a few of Colonel McCall’s earliest administrative selections and orders in the Sept. 11 proceedings, discovering that, when he issued them, throughout his first two months on the case in late 2020, he was too inexperienced to preside in a army fee.
Colonel McCall had been faraway from the case in December after prosecutors protested. He had not but served for 2 years as a army choose, a prerequisite for a choose on the warfare court docket. He was reinstated final month.
In the interim, the chief choose, Col. Douglas Ok. Watkins, failed in a behind-the-scenes effort to acquire waiver authority from the Pentagon and then dealt with the case himself — prompting protection legal professionals to problem months of administrative selections by each judges.
Much has modified because the final session in the demise penalty case that accuses Mr. Mohammed, his nephew and three different males of conspiring with the hijackers who killed almost three,000 folks in New York, Pennsylvania and on the Pentagon.
The chief prosecutor, Brig. Gen. Mark S. Martins, who had been on the case because the arraignment of the defendants in May 2012, is retiring from the Army and was absent from the courtroom, leaving solely civilian legal professionals representing the prosecution, a primary in the historical past of the case.
The choose required that everybody in the courtroom put on masks however granted himself an exception in order that legal professionals asking him about his credentials and might see his reactions to their questions. Four of the 5 defendants ignored the instruction and took off their masks in order that they may see each other as they chatted, presumably for his or her first encounters because the begin of the pandemic as a result of they’re unfold throughout two completely different maximum-security cell blocks.
Only the Saudi defendant, Mustafa al-Hawsawi, stored his N95 masks on constantly all through the morning session. His legal professionals say he has suffered power well being issues ensuing from rectal abuse throughout his C.I.A. detention. On Tuesday he not solely carried a pillow to court docket to make sitting much less painful, however guards additionally offered him with a padded rehabilitation chair in court docket, to which he added the pillow.
The beards of the 2 youngest defendants in the case, each in their mid-40s, grew to become streaked with grey through the pandemic.