Both are true. But more fundamental decisions and problems stand in the way of a trial.

The government wanted to try the men together

The five men were charged together, meaning an issue involving one would dictate the pace of the trial for the others. The lead defendant, Khalid Sheikh Mohammed, is accused of being the mastermind of the plot and proposing it to Osama bin Laden. Two other men are accused of helping some of the hijackers with finances and wire transfers.

For years, prosecutors were devoted to the idea of a one-and-done trial rather than trying the men separately. In 2023, however, a medical panel concluded that one defendant, Ramzi Binalshibh, was not competent to stand, and a judge severed his case.

Now the case has four defendants, each with his own team of lawyers.

Three of them, Mohammed, Mustafa al-Hawsawi and Walid bin Attash, negotiated an agreement with prosecutors to plead guilty in exchange for life sentences. But Defence Secretary Lloyd Austin rescinded it.

Now the judge has to sort out whether Austin’s action was lawful, and whether the four will be tried together.

Torture has dominated the hearings

After the men were captured in Pakistan in 2002 and 2003, the Bush administration held them in secret overseas prisons run by the CIA, where they were tortured.

The United States was trying to find bin Laden and uncover other terrorist plots, and it put interrogating the men ahead of their basic rights.

They were denied access to lawyers, the International Red Cross and US courts while they were held – at times in dungeonlike conditions – and brutally interrogated while held naked, beaten and deprived of sleep. Two were waterboarded.

Pretrial hearings in the early years focused on what information and which witnesses the defence lawyers could question from that programme, and which evidence could be made public. Those questions have not been entirely resolved, but lawyers for both sides have been calling witnesses on a crucial overarching question: are the interrogations of the defendants in 2007, the Government’s best evidence in the case, too tainted by torture to be used at their trial?

President George W. Bush sent the defendants to Guantanamo Bay

The Bush administration chose to put the defendants on trial at the US Navy base in southeast Cuba, which the United States has leased as an offshore facility for more than a century.

The Pentagon built a new national security court there, with military judges presiding and military officers mobilised from around the globe to serve on juries.

The CIA and the Government control the details of the defendants’ first years of detention and their interrogations and keep some of them from the defendants’ lawyers, who obtain sensitive, high-level security clearances to represent them.

The intelligence community has changed the rules repeatedly on how to handle classified information, causing court closures, confusion and delays.

The public listens to the open court on a 40-second audio delay, to prevent state secrets from slipping out. Even after that, censors protecting the interests of both the CIA and the Defence Department redact portions of transcripts of open hearings that they believe the public should not have heard. Both processes have slowed progress.

It’s a commuter court, requiring special flights

Only the defendants live at Guantanamo. For each hearing, the Pentagon charters a plane to fly everyone else, including the judge, to the base. The commuters routinely include prosecutors, defence lawyers, witnesses, stenographers, court security officers and translators – as well as relatives of people who were killed in the September 11 attacks, who watch the proceedings as guests of the prosecution. Journalists are required to commute to the court that way too, but pay their own way.

Travel to Guantanamo requires a special document, something akin to a visa, a government identification card or passport – and a ferry ride across the bay to reach the court complex. Weather can be a hindrance to the flights and the ferry.

Every time they arrive, the travellers must check in at a security zone, which is called Camp Justice. They are issued room keys, often to trailer park housing, and security identification cards and vehicles for those on the government payroll.

Staffing constantly changes at the court and prison

The guards who work at the court and prison are mostly National Guard troops mobilised from civilian life. They serve nine-month stints. The prison commanders change every year. The rules can change with military staff rotations, causing more court delays and other disruptions.

A new commander recently reinstated a rule requiring prison guards to shackle each prisoner by the ankle to the floor of the cells used for legal meetings. The judge ordered the prisoners unshackled at the court compound during weeks of pretrial hearings, absent emergency circumstances.

The current judge, Colonel Matthew N. McCall, is the fourth military judge to preside in hearings in the case at Guantánamo Bay. But at least seven have been assigned to it since arraignment in 2012, because, unlike in federal court, military judges typically serve stints on the bench and then move on to other legal assignments. Some have served as caretaker judges during the suspension of hearings. One stepped down after discovering he had conflicts of interest.

McCall will retire before any trial begins next year. The next judge will have to review more than 50,000 pages of transcripts, some of them classified, and tens of thousands of pages of court filings.

Floods and noise contribute to delays

The courthouse facilities have been built in stages since 2007 on a cracked tarmac on an abandoned airfield. When it rains, the court compound floods, and noise on the metal roof of the courtroom has drowned out the proceedings, forcing delays. Mould and other infestations are a constant concern in the sticky Caribbean climate.

Hurricanes, communications failures and the coronavirus have also forced cancellations and postponements.

One morning this summer, the court’s water, phone lines and classified computer network all went down. The air conditioning malfunctioned, and mould could be seen spreading across a vent in a new jumbo trailer containing a media centre. By afternoon, residents on the base were told to boil tap water they wanted to consume because of low line pressure possibly contaminating the water supply. Court was then cancelled for the next two days because the lead defendant had the coronavirus.

Health care is a constant concern

Guantánamo has limited health care, and anyone with a serious issue must be medically evacuated. In 2019, a hearing abruptly ended when doctors at the base’s hospital discovered that the judge’s retina was detaching; he was taken by medevac to Miami.

Progress was often derailed for years by outbursts by one defendant, Binalshibh, who was severed from the case in 2023. He is still technically charged, but a military medical panel ruled him unfit to face trial because of his post-traumatic stress disorder and other ailments, which his lawyers say are triggered by memories of mistreatment in CIA custody.

The coronavirus forced suspensions

All hearings were suspended for about 500 days from the start of the coronavirus pandemic in early 2020. They did not effectively restart until September 2023 for two reasons. Experts appointed by the judge were assessing Binalshibh’s capacity to participate in his defence. And during the same period, in March 2022, prosecutors initiated plea talks with the defendants, prompting the judge to suspend the hearings to allow talks to take place in the courtroom.

It’s a capital case

Capital cases take longer to prepare because, if the defendants are convicted, a mini-trial follows to decide whether a death sentence is appropriate. Factors such as a defendant’s background, upbringing and conditions of custody all figure into trial preparation.

Defence lawyers have pursued the most graphic details of the prisoners’ time in CIA custody to present to a jury if the case reaches sentencing. The defence also continues to seek testimony from CIA employees; the Government has declared that their identities are protected by a national security privilege.

“All we have to do is persuade one juror that one piece of information is sufficient for them to vote for life,” Rita Radostitz, a defence lawyer, told the judge on September 11, 2019.

This article originally appeared in The New York Times.

Written by: Carol Rosenberg

Photographs by: Marisa Schwartz Taylor

©2024 THE NEW YORK TIMES

Troy Bell could not wipe the smile from his face when he entered the South Australian political arena after a successful career in education.

It was March 2014 when the then-40-year-old Liberal snared the seat of Mount Gambier with an impressive 7.7 per cent swing, entering politics under Steven Marshall in opposition.

He swore an oath to represent his South-East constituents in Parliament – unaware he was under investigation by the Office of Public Integrity for stealing taxpayer funds.

Before becoming an MP, Bell helped establish and run the Independent Learning Centre (ILC)  – funded by the Education Department – to get vulnerable, at risk kids re-engaged with school.

It was a cause he championed after working as a teacher and had great success.

But he was soon under investigation for siphoning money meant for the ILC, which would have eventually benefited non-for-profit education organisations in the south-east region.

The crux of the complaint was that money never made its way to those organisations, lining Bell’s pocket instead.

It was also investigated by the department and the Independent Commissioner Against Corruption (ICAC), who executed a search warrant of Bell’s family home and compelled his wife to be interviewed during its three-year probe.

In May 2017, the ICAC file hit the desk of prosecutors.

Court documents reveal the deputy ICAC found the complaint “raised potential issues of corruption in public administration”.

It took three months for then-Director of Public Prosecutions Adam Kimber to charge Bell with 20 counts of theft and six counts of dishonest dealings with documents.

Bell expressed his intention to fight the charges, labelling the allegations a “political witch-hunt”.

He immediately resigned from the Liberal party and continued as an independent.

“I feel sick to my stomach, and I am in a state of shock and disbelief,” Bell said in a statement at the time.

“I am not going to run and hide from this; I think the people of Mount Gambier would be disappointed if their member cut and run as soon as the going got tough.”

Anyone facing criminal charges has the right to defend themselves to the extent of the law.

In the seven years it took to prosecute Bell, he earned almost $1.5 million in wages sitting on the backbench after retaining his seat in the 2018 and 2022 elections.

And after unanimous changes to the ICAC Act in 2021, theft and dishonesty charges no longer amount to corruption, meaning Bell is entitled to get reimbursed for his legal fees using taxpayer money, even if guilty of stealing it.

Any reimbursement must be signed off by the Solicitor-General and Attorney-General and must not exceed a daily rate of $4,000 for senior counsel.

The case – initially reported as a $2 million misappropriation — has been plagued by delays in the District Court. 

Most applications were mounted, and lost, by Bell and his defence team.

As Judge Simon Stretton pointed out in one Bell judgement, the passage of time causes memories to fade, and increases any potential forensic disadvantage to Bell.

“The process of justice becomes less and less timely,” Judge Stretton said.

“As all this time passes, there will be mounting practical challenges and difficulties, where 93 witnesses are being held in abeyance on subpoena month after month.”

His first trial was vacated after the death of barrister and former District Court judge Mark Griffin, who fell ill with terminal cancer in 2019.

For most of his court fight, Bell was represented by high-profile silk Marie Shaw KC, who launched dozens of applications on his behalf.

One application for a permanent stay – which if won, meant Bell would never face trial – centred on ICAC investigation failures. 

He twice lost his stay bid in SA courts before taking it to the High Court.

Bell’s lawyers withdrew his appeal to Australia’s highest court, but it had already caused a delay to his February 2022 trial.

Other applications revolved around DPP failures to disclose, fights over evidence relevance, whether a judge or jury should decide his case and an attempt to sever the charges so he would face six separate trials instead of one.

Court documents reveal prosecutors complained about the defence team filing significant applications without notice on the eve of hearings.

In March 2023, Bell’s defence team sought another delay on the grounds the DPP had failed to hand over hundreds of ICAC documents. Arguments were heard over three days.

But, Judge Stretton found most of the documents sought by defence had already been provided to them, dismissing the application.

“It is unfortunate that in each of the above three instances the defence failed to check whether in fact they had any of these documents, prior to claiming that they did not have them,” Judge Stretton said.

Mrs Shaw and her instructing solicitors withdrew from the case last August, leaving Bell unrepresented.

At that time, there were several outstanding defence applications which the District Court described as “some overlapping, some repeated and some entirely new”.

Bell hired new solicitors and a new barrister, Nicholas Healy, who dropped most of those applications, only proceeding with a bid to exclude a covert recording, citing legal professional privilege.

That recording was a phone call between Bell and former Liberal leader Isobel Redmond, where he admitted transferring money to his personal account “which I’ll have to defend”.

“I think I’m going to need a pretty good lawyer,” Bell told Ms Redmond in the recorded call.

Bell lost that case too, with Judge Stretton finding Ms Redmond was not a practising lawyer at the time.

It paved the way for his three-month trial to start in June, with a District Court jury delivering its verdicts on Thursday night, finding Bell guilty of 25 of the 26 charges.

During the trial, the court heard Bell failed to return $436,023.24, which prosecutor Jemma Litster said was a “conservative calculation” of the amount stolen.

She said the money was transferred into his personal accounts, allowing him to use the money for his own purposes including to pay credit card debts, offset his mortgage and for property investments.

Ms Litster had told the jury Mr Bell was able to commit the fraud unnoticed for some time because he had a “charismatic and persuasive” personality, was “well-liked” and “trusted in his professional and social circle”.

She said he became “particularly” financially ambitious in mid-2009, when he and his wife purchased their family home in Mount Gambier.

“Mr Bell was moving funds consistently between his loan and personal accounts to settle debts,” she said.

“It’s the prosecution case that all of the financial circumstances in the lead up to to the allegations are relevant to explain why the theft may have occurred.”

Bell had denied the allegations, which his legal team described as a “trial by smear”.

In his closing address on behalf of Bell, Mr Healy said the prosecution case was “a mad rabble” and had “more holes than a Balfours crumpet”.

“The entire prosecution case is misguided, it is misleading, it is confused and confusing and it is internally inconsistent,” he said.

Bell will now return to court next month for sentencing dates to be set.