Disputes Over Plea Negotiations in Sept. 11 Case Halted by Hurricane Florence

Flags at Camp Justice were lowered on Tuesday in recognition of the 17th anniversary of the Sept. 11 terrorist attacks.

Guantanamo Naval Base, Cuba – Defense lawyers for an accused Sept. 11 conspirator claimed in court this week that the Pentagon official in charge of the military commissions was fired for entering into plea discussions with the defense teams – an "unlawful influence" the lawyers believe should lead to the case's dismissal.

Marine Col. Keith Parrella, the military judge making his first appearance in the mammoth six-year-old case, allowed the team for defendant Ammar al Baluchi to call one of its own investigators to describe what he learned about the Feb. 2018 firing of Harvey Rishikof, the convening authority of the commissions, as well as his legal advisor.

Parrella did so over the objection of the prosecution team. Clay Trivett argued on Tuesday afternoon that the judge had all the evidence he needed to rule on whether the firings constituted unlawful influence, a common concept in military justice referring to improper interference in proceedings.

Trivett nevertheless contended that the government would disprove the defense theory based on what he described as ample evidence that Rishikof was fired for his management style and decision to circumvent proper military channels by asking the Coast Guard to take aerial photography in support of a planned expansion of the Guantanamo Bay legal complex.

Trivett criticized what he referred to as “the runaway train theory of unlawful influence” put forward by his courtroom opponents: No matter how badly a convening authority goes off the rails, the defense seemed to think, “no one could lawfully stop him.” In fact, Trivett argued, a convening authority can be removed at any time.

James Connell, the lead attorney for al Baluchi, argued that the criticisms over management style and the Coast Guard operation were mere pretexts to punish Rishikof for considering pretrial agreements – still in the early stages of discussions – that would have removed the death penalty as a sentencing option. All five defendants could face the death penalty if they are convicted of their alleged roles in the attacks that reached their 17th anniversary the morning of that hearing.

The convening authority for a military commission is responsible for making any pretrial agreements in addition to other management functions, such as referring charges for trial and making resourcing decisions.

Connell did not call his investigator, Navy Reserve Lt. Douglas Newman, to support his final arguments in the dispute over unlawful influence. Instead, he called Newman to support his position that he should be able to call 22 witnesses with actual knowledge of the events relevant to the firings. Newman has conducted 18 interviews for his investigation; the team has not yet interviewed Rishikof.

The government contends that witnesses are unnecessary and “cumulative” given that Secretary of Defense James Mattis and his top lawyer already submitted declarations over the firings, as have Rishikof and his legal advisor.

A military defense lawyer on Connell’s team, Air Force Capt. Mark Andreu, guided Newman through direct examination on Tuesday afternoon and Wednesday morning. Newman recounted the details of the investigation he has conducted over the past several months by talking to a wide range of individuals associated with the commissions and Guantanamo Bay operations from both the Obama and Trump administrations.

From interviewing Gary Brown, the legal advisor fired along with Rishikof, Newman testified that he learned Attorney General Jeff Sessions made a phone call to Mattis to question him about why pretrial agreements were being considered in the Sept. 11 case. He also testified to tense relations between the convening authority and the chief prosecutor’s office, led by Army Brig. Gen. Mark Martins.

“[Brown] painted the relationship as unhealthy and contentious,” Newman said.

If Connell is allowed to present testimony of additional witnesses, they would likely testify at the next pretrial session, scheduled for two weeks in November.

But Connell and Trivett did not get to make their final arguments on the witness issue as the session came to an early close by lunchtime Wednesday.

The 31st pretrial session was the first to take place during an anniversary of the Sept. 11 terrorist attacks since the defendants were arraigned in May 2012. On Tuesday morning, Gen. Martins told Parrella that victim family members who travelled for the proceedings would be entering and exiting the courtroom’s viewing gallery to quietly recognize the moments of the planes' impacts and resulting deaths. Parrella said he would take no offense.

Minutes later, the judge rejected defense requests made at the start of the week that he either recuse himself or abate the proceedings until they fully research and litigate any challenges. His decision to move forward would have queued up a full week of oral arguments, but the judge said he supported a proposed plan to depart the island Wednesday night to get ahead of the path of Hurricane Florence.

On Wednesday, after Newman left the witness stand, Parrella told the parties he wanted final arguments on the proposed witnesses regarding the firing of the convening authority submitted in writing in two weeks so that he could rule on the issue before the November session.

Cheryl Bormann, the lead attorney for Walid bin Attash, may have accurately summed up the session for many participants as she approached the podium to question Newman and misstated the date she distributed an exhibit related to the testimony.

“It’s been a long week, even though it’s only three days old,” Bormann said.

True to commission form, by mid-afternoon Wednesday the flight out of Guantanamo Bay to beat Florence was expected to be postponed to a subsequent day.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism. View our staff page.