The United States was at war with al-Qaida at the time of the 9/11 attacks, the military judge presiding at the trial of the alleged plotters has ruled. But he sidestepped a crucial question: When precisely did the war begin?
For now, Army Col. James L. Pohl wrote in his 20-page ruling dated Wednesday, it is "unnecessary to decide a date certain for commencement of hostilities."
The ruling was a crucial pretrial threshold toward the capital trial at Guantánamo of accused mastermind Khalid Sheik Mohammed and four alleged al-Qaida accomplices in the attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon. If America was not at war on Sept. 11, 2001, the five men could not face trial by military commissions.
Pentagon attorneys for a Saudi man accused of conspiring in the 9/11 attacks, Mustafa al Hawsawi, raised the question in a motion to dismiss his charges. They argued that the U.S. was not at war during the time Hawsawi allegedly helped some of the hijackers with funding and travel to the United States, and could only face trial in federal, civilian court.
Prosecutors in their charge sheet date the start of hostilities to Osama bin Laden's 1996 "Declaration of Jihad Against the Americans." Lawyers for another alleged conspirator, Ammar al Baluchi, argue the war began when U.S. forces invaded Afghanistan Oct. 7, 2001, and plan to likewise later challenge the judge to set an alternative start date.
Hawsawi's lawyers argued in a series of pretrial hearings that the war court itself was bound by an international body of law, called the law of war, and that hostilities began with al-Qaida sometime after the terror attacks. Hawsawi, who was staying in the United Arab Emirates before 9/11, allegedly helped at least seven of the 19 hijackers either with travel arrangement or money transfers. Testimony in court showed that at least two U.S.-based hijackers wired him leftover cash advances before the 9/11.
Pohl's ruling concluded that the U.S. was at war before the attacks because Congress and two presidents have said so.
President George W. Bush created military commissions after the attacks to prosecute the perpetrators and Barack Obama reformed the system in collaboration with Congress. The Military Commissions Act of 2009 "contemplates prosecution for offenses occurring 'on, before or after Sept. 11, 2001,' ” Pohl pointed out. Moreover, he said, courts senior to the war court "have also acknowledged the existence of this conflict."
"The overall armed conflict against al-Qaida — a transnational terrorist organization operating primarily outside the United States —might itself be viewed as an anomaly under pre-Sept. 11, 2001 law of war standards," he wrote.
"However, the law of war is not static, and its precise contours may shift to recognize the changing realities of warfare. Military commissions by their nature are intended to have sufficient flexibility to address the needs presented by the armed conflict they address."
Veteran war court watcher Stephen Vladeck, a University of Texas law professor, said Thursday that by declining to set a start date for the global war on terror, the judge was "needlessly creating a serious problem for a post-conviction appeal."
He observed on Twitter that he understood Pohl's legal arguments but they "defy common sense."
"To put the matter bluntly, " he added, "how many people (even inside the U.S. government) would seriously have thought, on Sept. 10, 2001, that the United States was engaged in an ongoing armed conflict with al Qaida?"
Pohl issued the ruling days ahead of resumption of pretrial hearing at Guantánamo — the 29th session devoted to legal and evidentiary requests since the five were arraigned on May 5, 2012. No trial date has been set and no jury of U.S. military officers to sit in judgment have been selected.
The Pentagon just last week chose a North Carolina contractor to build classified office space for the five defense teams to handle Top Secret material at the war court compound. Under the contract, to a subsidiary of the conglomerate that helped rebuild the World Trade Center after the terror attacks, the offices should be complete by June 2019.
Under the war court procedures, the judge's decision is to undergo an up to 15-day review by the intelligence community, which can redact anything it considers secret, before releasing it. The Justice Security legal blog, however, obtained a copy of the unclassified ruling and posted it on its website.
This story was originally published April 26, 2018 4:00 PM.