Family of 9/11 victims optimistic as pretrial hearings resume

Progress slow as three of the five accused object to Col Matthew McCall’s ability to preside over an eventual trial at Guantanamo Bay

Camp Justice at Guantanamo Bay Naval Base, Cuba, where pretrial hearings for the '9/11 Five' resumed this week. AP

Twenty years after her brother, New York Fire Department Capt Billy Burke, was killed in the September 11 attack on the World Trade Centre, Elizabeth Berry is still waiting for justice.

She and her husband, Paul, have travelled to Guantanamo Bay, Cuba, for the pretrial hearings in the case of the “9/11 Five” - a group of men accused of helping orchestrate the attacks that killed Ms Berry's brother and about 3,000 others.

“I want to see a resolution,” said Ms Berry. The case, which has dragged on for more than a decade, was finally making progress before the coronavirus pandemic halted proceedings.

The family wanted to be present to see the case resume after more than 500 days.

“I think we are cautiously optimistic that there is light at the end of the tunnel,” said Mr Berry, a retired lawyer.

That light may still be far away, however, as the hearings have continued at a glacial pace.

The three days of open hearings were almost entirely devoted to questions surrounding the fitness of the new judge, US Air Force Col Matthew McCall, to oversee the long-delayed trial.

Col McCall is the seventh judge to preside over the case, which has dragged on for more than a decade, making it the longest prosecution in US history.

He was first appointed in 2020 by then-chief trial judge Douglas Watkins, but shortly thereafter recused himself after the prosecution objected 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.

On Wednesday, both the prosecution and defence dug into Col McCall’s background, raising concerns over his lack of experience and knowledge of the case.

And on Friday, three of the five accused - including Khalid Sheikh Mohammed, the purported mastermind of the September 11 attacks - objected to Col McCall overseeing the case.

Gary Sowards, the lead lawyer for Mr Mohammed, objected on the grounds that Col McCall failed to meet the standard of impartiality. Mr Sowards said the way Col McCall had handled his earlier withdrawal from the case could hinder his ability to be impartial.

Cheryl Bormann, who represents Walid bin Attash, asked Col McCall to delay hearing motions until he had a better grasp of the case.

In one of many quirks of the military commission that was created to try those detained during America’s war on terror, it is up to Col McCall to make a ruling on his own ability to hear the case in light of these objections.

Also notable on Friday was the absence of the accused. Throughout the first two days of hearings, all the men had attended court, but on Friday they were absent.

Lawyers for Ammar Al Baluchi, accused of transferring money to the hijackers, said the 44-year-old Pakistani citizen was unable to attend court because he had spent the last two days helping Abdul Hadi Al Iraqi, an ageing detainee who had experienced a medical emergency.

“Ammar and several other of the detainees spent two days carrying him to the bathroom, lifting him up, you know, to help him move around, because he can't move himself around,” said Alka Pradhan, one of Mr Al Baluchi's defence lawyers.

Ms Pradhan said her client had not slept in two days and was not in a position to attend Friday’s hearing.

It has been more than 12 years since the accused were first arraigned in what has become one of the longest legal proceedings in US history.