For families of 9/11 victims, virus further slows the pace of justice

Camp Justice at Guantanamo Bay, Cuba, April 17, 2019.

By Carol Rosenberg

Terry Strada breathed a sigh of relief last summer when a military judge finally set a date to begin the death penalty trial of Khalid Shaikh Mohammed and four other men accused of planning the attacks that killed her husband and 2,975 other people on Sept. 11.

So did Joel Shapiro, whose wife was killed in the World Trade Center; Ken Fairben, who lost his son there; and the family members of other victims who have attended the slow-moving pretrial proceedings at the war crimes court at Guantánamo Bay, Cuba, and had been counting on the trial to begin early next year.

Now the coronavirus pandemic has dashed those hopes. With the proceedings halted for now, there is a real possibility that the trial will not even have begun on the 20th anniversary of the attacks 14 months from now.

“The calamity of COVID is definitely disrupting our personal lives and our hopes for this trial to come to fruition,” said Strada, whose husband, Tom Strada, a bond broker, was killed at the twin towers. “We were very hopeful back then. It’s hard to have something taken away from you that you were really counting on. And that is a shame, just a crying shame.”

Jury trials across the country have been put on hold as courts struggle with how to safely assemble a judge, witnesses, victims, lawyers and defendant during a pandemic before a reliable vaccine is developed and distributed. The challenge is especially great at Guantánamo because all the participants in the trial except the prisoners have to travel there from across the country, flying in together from Washington, D.C., aboard a military charter airplane.

Guantánamo is under Defense Department travel restrictions, including a two-week quarantine for new arrivals, which have so far forced cancellation of nine weeks of pretrial hearings needed to resolve key preliminary issues before a jury of military officers can be chosen.

Last month, the office of the war crimes prosecutor notified families who signed up to go to hearings and represent the victims that “until this health threat has passed,” they would not be permitted to travel to the proceedings.

“The virus? It’s just another obstacle thrown in our way,” said Fairben, 71, a former fire chief in Floral Park, Long Island, whose 24-year-old son, Keith Fairben, was killed at the World Trade Center while working as a paramedic for NewYork-Presbyterian Hospital.

“I don’t see anything happening until after the first of the year. And even that is wishful thinking,” he said, anticipating new outbreaks of the virus. “The medical community I’m involved with, the rescue company, hospital people, they honestly have a thought that in the fall it’s going to rear its ugly head again and it’s going to flourish.”

Compounding the problem, the case needs a new judge. Col. W. Shane Cohen, the judge who scheduled jury selection to start Jan. 11, 2021, abruptly announced his retirement from the Air Force on March 17, days after the World Health Organization declared the rapidly spreading virus a pandemic.

The health crisis has disrupted the assignments and training of American military judges across the globe. So the chief of the war court judiciary has been supervising the case administratively from Fort Hood, Texas, casting further doubt on when the trial might start.

Shapiro, 72, whose wife, Sareve Dukat, 53, was killed at the World Trade Center, said the timetable for an early 2021 start to the trial “feels like it was a tease.”

He worked as a volunteer at the Sept. 11 memorial and museum in Manhattan until the pandemic closed the site. “Sept. 11 basically has been marginalized in the public imagination,” he said.

For some family members of those who died on Sept. 11, the response to the virus has stirred painful reminders of the attacks by 19 hijackers who crashed four passenger planes in New York, Pennsylvania and at the Pentagon. Then, as now, rescue workers selflessly put themselves in harm’s way, refrigerator trucks served as overflow morgues in New York City, and grieving families held incomplete funerals.

Glenn Morgan, 57, of Belmont, Massachusetts, whose father, Richard Morgan, was killed in the collapse of the World Trade Center, likened the magnitude of death brought by the virus to “40 moving 9/11s rolling across the country like a dirty cloud.”

“It is viscerally impacting everyone,” he said.

The current Sept. 11 case began in May 2012 with the arraignment of Mohammed, his nephew and three other men who, before their transfer to Guantánamo, had spent years in clandestine CIA prisons where detainees were tortured.

Eight years later, hearings continue to consider questions about evidence, witnesses and the application of the Constitution before the trial begins. The now-stalled timetable of pretrial hearings requires frequent shuttles, with participants going to a classified courtroom in Guantánamo several weeks a month for extensive testimony by health experts, former CIA contractors and FBI interrogators, in both open and closed national security sessions.

For selection of the 12-member jury, in addition to alternates, planners envisioned shuttling about four dozen military officers at a time to the base from assignments across the globe. The last judge predicted the trial would last at least a year, including recesses that would let participants leave the base and return, and involve weekly shuttles to switch out staff, observers, family members and reporters.

The problem for now is how to resume pretrial hearings. The base, which has 6,000 residents, has a small hospital, no capacity to conduct widespread testing of the virus in real time and an information blackout on how many people have contracted the virus since the military disclosed the first two cases in the spring.

Under the current proposal, a plane of at least 100 court participants would arrive at Guantánamo more than two weeks before a hearing begins, and passengers would individually quarantine for 14 days.

So far, the chief judge and another in the case of a prisoner accused of orchestrating al-Qaida’s 2000 bombing of the Cole warship, both Army colonels, have canceled hearings that had been scheduled before the pandemic. One called the logistics of the quarantine and other restrictions “unduly burdensome.” The other called them “impracticable.”

Terry Kay Rockefeller, whose sister, Laura Rockefeller, was killed Sept. 11 at a conference at Windows on the World, has gone to Guantánamo eight times as an observer and questions how the Pentagon can safely move a planeload of court participants to two weeks of quarantine on a base with limited guest housing and health care.

“Every single team has people in the high-risk category just by age alone,” said Rockefeller, 70, of Boston. “Experienced lawyers on the defense as well as the prosecution are at significant risk if they can contract the disease.”

Unlike others, she said she never counted on the trial beginning by the 20th anniversary of the attack. She is a member of the anti-war group September 11th Families for Peaceful Tomorrows, which supports resolving the case through a negotiated plea. That means the maximum punishment would be a life sentence, not capital punishment.

“To say it has been 20 years and we haven’t started a trial would be reprehensible,” she said. “Now I’m thinking we’ll get to 25 years, and who knows if we’ll be around anymore.”