Three prisoners at the Guantanamo Bay detention centre had their first day in court after being held by the US for 18 years in connection with the deadly 2002 Bali nightclub bombings and other plots in Southeast Asia.
Indonesian prisoner Encep Nurjaman, known as Hambali, and two Malaysians started their arraignment at a hearing at the US base in Cuba that repeatedly stalled because of issues involving courtroom interpreters.
They face charges that include murder, conspiracy and terrorism.
It is merely the first step in what could be a long legal journey for a case that involves evidence tainted by CIA torture, an issue that has caused other war crimes cases to languish for years at Guantanamo.
The hearing also comes as the Biden administration says it intends to close the detention centre, where the US still holds 39 of the 779 men seized in the aftermath of the September 11 2001, attacks and invasion of Afghanistan.
The three men charged in connection with the nightclub bombings were held in secret CIA confinement for three years, followed by 15 more at the isolated US base in Cuba.
“It’s almost 20 years later, witnesses have died, the landscape has changed dramatically,” said Brian Bouffard, a lawyer for Mohammed Nazir bin Lep, one of the Malaysians, before the hearing.
“In my view, it’s fatal to the ability to have a fair trial.”
The decision to charge them, made by a Pentagon legal official at the end of the Trump administration, also complicates the effort to close the detention centre, Mr Bouffard said, by making it more difficult for the new administration to add any of the men to the list of those who could potentially be transferred out of Guantanamo or sent home.
“It will even be harder after an arraignment,” he said.
The arraignment went off course early as lawyers for the Malaysians challenged the adequacy of the courtroom interpreter, who seemed to speak haltingly in both English and Malay.
They also revealed that another interpreter working with prosecutors had previously worked with the men for their appearance before the equivalent of a parole board at the detention centre.
“He has confidential information that he may be sharing with the prosecution right now,” said Christine Funk, a lawyer for Mohammed Farik bin Amin.
Nurjaman was a leader of Jemaah Islamiyah, a Southeast Asian militant group with ties to al Qaida.
The US government says he recruited militants, including bin Lep and bin Amin, for jihadist operations.
Among the plots that al Qaida and Jemaah Islamiyah carried out were the October 2002 suicide bombings of Paddy’s Pub and the Sari Club in Bali, Indonesia, and the August 2003 suicide bombing of the J.W. Marriott in Jakarta, Indonesia.
The attacks together killed 213 people, including seven Americans, and injured 109 people, including six Americans.
Dozens of victims were foreign tourists, mostly Australians while more than two dozen Britons died.
Prosecutors allege bin Lep and bin Amin, served as intermediaries in the transfer of money used to fund the group’s operations.
All three were captured in Thailand in 2003 and transferred to CIA “black sites”, where they were brutalised and subjected to torture, according to a Senate Intelligence Committee report released in 2014.
In 2006, they were moved to Guantanamo.
It is unclear why it has taken so long to charge them before the military commission.
Military prosecutors filed charges against the men in June 2017, but the Pentagon legal official who oversees Guantanamo cases rejected the charges for reasons that haven’t been publicly disclosed.
The case has many elements that make it complex, including whether statements the men made to authorities can hold up in court because of the abuse they experienced in CIA custody, the fact that people have already been convicted, and in some cases executed, in Indonesia for the attack, and the long time it has taken to bring charges.
Some of these same issues have come up in the case against five Guantanamo prisoners charged for planning and aiding the September 11 attacks.
They were arraigned in May 2012 and remain in the pretrial phase, with no trial date yet scheduled.
Ms Funk predicted a lengthy period of defence investigation that will require extensive travel, once the pandemic is over, to interview witnesses and look for evidence.
Still, she said, her client is “anxious and eager to litigate this case and go home”.
