Ms. Colleen Kelly
Senate Judiciary Committee
Closing Guantanamo: Ending Twenty Years of Injustice
December 7, 2021
Good morning, Chairman Durbin, Ranking Member Grassley, members of the committee. Thank you for this opportunity to share my experience with you today. I am a family nurse practitioner in the Bronx, New York, and the mother of three grown children. My younger brother, Bill Kelly Jr., was killed in the North Tower of the World Trade Center on September 11th.
Bill was 30 years old, and just starting to come into his own. He was a pretty good chef, a bartender, an ever-hopeful duck hunter, and a guy as comfortable in surfing shorts as in a business suit. Bill had been working for three years at Bloomberg Tradebook, and his four sisters – myself included – would fight over who got to be Bill’s ‘date’ at the annual company holiday party.
Bill didn’t work at the World Trade Center. He happened to be at a two-day conference – an event he had repeatedly asked his boss to attend. Bill’s boss acquiesced, so in a twist of fate, Bill was at the wrong place, at the wrong time. In a second twist of fate, Bill was photographed inside the conference center on the 106th floor early that morning. The photographer’s camera broke, and thankfully, she left the building at about 8:30 a.m. and headed to another assignment. American Airlines Flight 11 struck the North Tower minutes later. Bill sent messages to his co-workers via his Blackberry saying that he was trapped. At first, he was hopeful that the fire department would save him. 343 firefighters lost their lives that day attempting to do just that.
I tell you this to emphasize that each of the 2,977 people murdered on September 11th has a family, co-workers, and friends. And for all of us, there has been no justice or accountability for what happened on September 11th.
Bill comes from a large Irish family. My three sisters and I are blessed that our parents – now in their eighties – are still with us. We grew up in a “divided” household, of sorts. My mom is a Democrat and my dad is a Republican. So I feel comfortable sitting here today, in another divided household. It feels like the family dinner table, only with a few extra friends.
My 84-year-old father put it succinctly a week ago when I asked for his thoughts about the 9/11 Military Commissions. He said, “This is not justice.” I agree 100%. I did not come to this assessment quickly, nor without thoughtful deliberation.
After 9/11, I co-founded September 11th Families for Peaceful Tomorrows. Each of our 260 members lost a relative on 9/11. We all believe firmly in the rule of law as a remedy for addressing violent crime and conflict. The rule of law is a bedrock principle of our nation, and after 9/11 we expected our government to uphold the rule of law in seeking accountability for our relatives’ deaths. It failed to do so and as a result we still are awaiting justice twenty years later. Peaceful Tomorrows has official observer status in the military commissions, so I come to this conclusion having observed the commissions first hand from Guantanamo over a dozen times.
Twenty Years and Still No Justice
Five men stand accused in the military commissions at Guantanamo of responsibility for planning and supporting the 9/11 attacks. The courtroom at Guantanamo was actually built to try six men, but before any charges were brought, the Convening Authority of the Commissions, who was previously a senior Pentagon official, determined that Mohammed al-Qahtani, supposedly the 20th hijacker, had been tortured by U.S. military personnel and would not be tried.
Instead, in May of 2012—more than a decade after 9/11—five men were arraigned. Today, another nine years and seven months later, a trial has not even begun. Instead, family members have heard years of argument in pre-trial hearings. While these hearings have produced no legal justice for 9/11, they have revealed the shocking role of torture in undermining the 9/11 prosecution. Instead of learning how and why the attacks were carried out, and who was responsible for doing what, family members have followed seemingly endless litigation largely concerned with the defendants’ torture by government agents and the government’s attempts to keep that information from coming to light.
Rather than being in the public spotlight, as is appropriate for such a public crime, the military commissions are shielded from public view. To observe the legal proceedings against the 9/11 accused, family members and those injured are permitted to watch via closed circuit TV at four sites: Fort Hamilton, Fort Meade, Fort Devens, and Fort Dix. The Pentagon was added in 2020, but we need an approved escort to watch there. In recent years, family attendance at these sites combined has been less than 10 or 15 individuals per hearing – a sign of how family members have grown frustrated and lost confidence in the proceedings.
Up to five family members can also attend each hearing in person. However, attending the pre-trial hearings at Guantanamo involves travel first to Washington D.C., then a 3-hour flight to Guantanamo, followed by a boat across Guantanamo Bay. It also requires a week-long stay on the military base – obstacles that have discouraged most from going.
I have personally traveled to Guantanamo to watch the week-long 9/11 proceedings more than a dozen times. I have also sat at Fort Hamilton, Fort Meade, and the Pentagon as delay after delay unfolded year after year. And I have watched 9/11 family members’ remarks at press conferences shift over the years from gratitude to the prosecution, to frustration and disappointment over why the proceedings are taking so long.
In May of 2012, I sat at Fort Hamilton with my dear friend Rita Lasar, another co-founder of September 11th Families for Peaceful Tomorrows, to watch the arraignment of the 9/11 accused. Rita’s brother Abe died when he refused to leave his disabled co-worker on the 27th floor of the North Tower. Rita Lasar is now deceased.
In 2017, I was on the plane to Guantanamo with Lee Hanson, the only 9/11 family member yet to be deposed in the pre-trial hearings. Lee Hanson, who lost his son, daughter-in-law, and granddaughter on United Airlines Flight 175, is now deceased.
In 2019, I was on a boat crossing Guantanamo Bay with Alice Hoagland, mother of United Airlines Flight 93 hero Mark Bingham. Alice Hoagland is now deceased.
The point here is that family members and the injured want a measure of accountability and justice before our deaths. Our government failed to protect its citizens on September 11th. And our government has failed for two decades to bring those responsible to justice. This can and must end.
In 2015, September 11th Families for Peaceful Tomorrows applied for and received NGO observer status, allowing us to send a member to each military commission hearing at Guantanamo. We are the only family member organization with this status and one of our members has attended, in person, nearly every hearing in the last six years. We felt it was important to witness first-hand all that happens at Guantanamo, both inside and outside the courtroom, to see the accused and to have the accused see us, to bear witness not only for our loved ones, but for the outside world.
We have been steadfast in our commitment, but over nine years we have been stunned by the troubling staff turnover within the 9/11 commission. I have lost count of the number of Convening Authorities, but it is over ten. There is (as of October of this year) a new acting chief prosecutor; there will soon be a new chief defense counsel. One of the five defendants facing the death penalty is being represented by his second learned counsel, and we have seen numerous other personnel changes in both military and civilian staff. But most egregious is that before a trial has even begun, there have been four judges (eight if you count those who were named but served only administrative functions or recused themselves).
The military judges in this case are required to make complex and consequential rulings. To highlight just one issue as an example: Judge Pohl – the first judge in the 9/11 case – ruled that the 2007 statements made by the 9/11 accused to FBI agents would not be admissible. He made this ruling as a remedy for the prohibition against defense teams obtaining information about the defendants’ treatment at CIA “black sites.” Judge Parrella – the second judge – overruled Pohl’s decision, finding Pohl’s “determination, and resulting remedy, to be premature.” In 2019, Judge Cohen – the third judge – found “the record is not sufficiently developed for the Commission to make findings” and set a schedule for hearings with witnesses. We have yet to see what the newest and fourth Judge – Col. Matthew McCall – will do. This is not a higher court reversing a lower court decision; this is ping pong decision making within the same courtroom. This is no way to conduct what is one of the most important trials in American history.
We know that each of the 9/11 defendants was tortured. After years of watching the pre-trial hearings, following motions and decisions, and in many cases reversals of decisions, members of our organization began to feel that the classification of information about torture and the invocation of the state secrets privilege were less about risks to our national security and more about withholding information that is embarrassing to the government. Our concern grew so great that in August of this year, September 11th Families for Peaceful Tomorrows filed an amicus brief in the Supreme Court case U.S.A. v. Abu Zubaydah. As stated in our brief:
Peaceful Tomorrows seeks justice and accountability for the September 11th attacks and for the torture that was subsequently carried out in its family members’ names by the United States government. To that end, Peaceful Tomorrows wants those responsible for the September 11th attacks held accountable for their crimes pursuant to a just process that follows the rule of law. To ensure a just process, Peaceful Tomorrows believes the rule of law must also apply to our government. That includes the judiciary serving as a gatekeeper to prevent unjustified invocations of the state secrets privilege….
The Government ultimately chose military commissions as the legal mechanism for accountability for 9/11. Today, I am asking this Committee to acknowledge that the military commissions have fundamentally failed, and to encourage the Biden Administration to end them and find a means to bring the 9/11 case to resolution.
A Path to Resolution, If Not Justice
In searching for alternatives, our organization’s members have met with federal prosecutors from the Southern District of New York and the Eastern District of Virginia, to learn more about prosecuting complex terrorism trials. In 2017, we began exploring the option of pre-trial agreements with legal advisors. Today we advocate strongly for pursuing pre-trial agreements in the 9/11 case. We have seen their effectiveness in the Badat, Kotey, and Khan cases.
We were particularly convinced after reading the letter from seven of the eight senior military officers who sat on the panel in the sentencing of Majid Kahn that pre-trial agreements can provide resolution in cases where the accused was tortured – which is true for the five 9/11 defendants and all the other men currently charged in the military commissions at Guantanamo. These panel members were blunt in denouncing Mr. Khan’s torture as “a stain on the moral fiber of America” that “should be a source of shame for the U.S. government.”
We want to share what we, as family members, would hope to achieve by reaching agreements in these cases. We understand that in exchange for guilty pleas the government would in all likelihood no longer seek the death penalty; this would be in part in recognition of the torture each of the defendants experienced. What we would hope to finally get, however, is answers to our questions about 9/11 from the defendants—answers and information that we have been denied for two decades.
Those who have not been watching what has been unfolding in the commissions may not see this as justice. Indeed, it is not the outcome that September 11th Families for Peaceful Tomorrows advocated for at our founding. But it is a way – perhaps the only way – forward at this point. Pre-trial agreements could also be a means to resolve the other military commissions cases and provide a path to achieving Guantanamo’s eventual closure.
My brother Bill was killed in what was likely the most public event in human history. While people around the globe literally watched two towers, the Pentagon, and a field in Pennsylvania burn, I watched my brother Bill being murdered, one agonizing moment after another. My family does not have any of my brother’s remains, nor do one-third of 9/11 families. I am asking this Committee and the Biden Administration to deliver the next best thing – a resolution to the 9/11 Military Commission that provides answers to our questions, accountability for unlawful acts, justice too long denied, and a path to closing Guantanamo. Perhaps then, this long-festering, very personal, yet collective national wound can truly begin to heal.
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