Dispute About Inception of U.S. War with Al Qaeda is Over – Or Not – in Sept. 11 Case

Defense attorney James Connell wants a full hearing to argue that the U.S. and al Qaeda were not at war at the time of the attacks.

Guantanamo Naval Base, Cuba – The 2,976 people who died on 9/11 have been mourned for nearly 18 years, and yet the tribunal established to prosecute those accused of planning the crimes returned again this week to whether the U.S. and al Qaeda were at war that September morning.

An esoteric question to those uninitiated to the endless pretrial proceedings, but also a critical determination from a jurisdictional perspective. Why, asked the judge presiding on the case until last summer, would Congress have written the 2009 Military Commissions Act in a way that prevented the new court system from prosecuting the very case for which it was created?

Army Col. James Pohl presided over the Sept. 11 case for more than six years and last year decided that a state of hostilities existed prior to 9/11 – turning aside arguments from one defense team that the case should be dismissed because the U.S. was not engaged in an armed conflict with al Qaeda at the time of the attacks. Pohl reasoned that he should defer to the determination by Congress and the President that hostilities existed, which meant his commission had proper jurisdiction over the five defendants accused of war crimes.

That either resolved the issue or closed one brief chapter in a dispute that could consume untold additional pretrial hearings in the year – or years – ahead. This week marked the 34th pretrial session in the case that dates to the May 2012 arraignment and still does not have a trial date. Creating even more uncertainty is that Marine Col. Keith Parrella, the judge who inherited the case in August, is scheduled to depart it for a new assignment this summer.

James Connell, the lead attorney for Ammar al Baluchi, argued to Parrella on Wednesday that Pohl's April 2018 ruling should only apply to co-defendant Mustafa al Hawsawi, the first and only defendant to challenge in an evidentiary hearing the court’s jurisdiction over him as an individual. Connell said that his team should be able to present its own witnesses and evidence to support the contention that hostilities did not begin until the invasion of Afghanistan in October 2001.

Connell explained that Pohl prevented his team from participating in the jurisdiction hearing for al Hawsawi in December 2017, largely for practical and scheduling reasons – but that the judge repeatedly indicated that he would be able make his case on the inception of hostilities at a later date.

Now, Connell argued, the prosecution team was engaging in brazen “revisionist history” to contend that day should never come.

“Every person is entitled to their own day in court,” Connell said. “And that’s all we are asking for.”

Prosecutor Clay Trivett sought to preclude multiple hearings on the issue, saying the government will still have to prove the existence of hostilities as an element of the offenses at trial before a panel of military officers who will decide the case. But he said that, due to Pohl's ruling, the hostilities question is settled for the pretrial phase. As a result, Trivett claimed, defense teams should not be able to seek dismissal of the case for an alleged absence of hostilities, even though they did not join al Hawsawi's challenge – or, in the case of Connell, attempted to join but was told to wait.

Connell, he argued, was using his obvious talents as a trial lawyer to turn a simple issue into a confusing mess that would have a farcical effect on the proceedings.

“It cannot be that we have an armed conflict with one of them, but not the others,” Trivett argued.

Pohl decided in mid-2017 that each defendant was entitled to an evidentiary hearing on “personal jurisdiction.” In such a hearing, Pohl ruled, the prosecution would have to prove by a preponderance of the evidence that the defendant was a member of al Qaeda, or that he had engaged in or supported hostilities against the United State; proving a hostilities offense would also require proving “the factual existence of hostilities."

By then the jurisdictional quagmire had already become a chasm: Three defense teams had declined to file their jurisdictional challenges to await additional discovery from the government. And while initially that was Connell’s preference, he decided to move forward for fear that a ruling by Pohl might negatively affect his client.

Eventually, Pohl decided not to combine the two defendants’ jurisdictional challenges into a single hearing due to the vastly different approaches planned by the teams. Walter Ruiz, the lead lawyer for al Hawsawi, only wanted to call a single witness, an expert in the law of war, and he did not plan on challenging the admissibility of the statements of the FBI agents who would be testifying against his client.

Connell wanted to challenge the anticipated FBI statements against his client and to call numerous witnesses from the Clinton and Bush administrations who would support the position that the U.S. government did not view itself in an armed conflict with al Qaeda prior to Sept. 11, 2001. Pohl decided to deal with the simple hearing first and wrestle with Connell’s more expansive plans later.

But Pohl departed the case last summer, leaving Connell’s team in the fog of a major jurisdictional claim deferred. On Wednesday, Connell read from numerous parts of transcripts from past sessions to point to Pohl’s position that his team would able to call witnesses to establish a factual record pointing to an absence of hostilities at the time of the attacks.

“It just leaps off the page,” Connell said.

But Trivett countered that Connell’s plan to call dozens of witnesses testifying to various “political acts” of past administrations was “untethered to any legal standard.” He added that al Baluchi and the other three defendants could still make their jurisdictional challenges over their alleged ties to al Qaeda or their alleged roles in supporting the attacks. And, if they did, the U.S. government would still have to prove at least one of those prongs by a preponderance of the evidence to establish jurisdiction.

Al Hawsawi’s personal jurisdiction hearing in December 20117 was one of the more memorable weeks in the case. The government called FBI agents who testified about their January 2007 interrogations of the defendant at Guantanamo Bay, during which he allegedly expressed pleasure with the 9/11 attacks. Prosecutors also showed footage of the Sept. 11 attacks and earlier attacks of the USS Cole in Yemen and the U.S. embassies in Tanzania and Kenya.

Defense witness Sean Watts, a professor at Creighton University School of Law, educated and dazzled the courtroom with his mastery of the law of armed conflict – apparently impressing even Trivett, who cross-examined him.

"He's obviously a very well-read man," Trviett told Pohl in his closing arguments. "I didn't challenge that he was a law of war expert. But ultimately, he doesn't get to decide."

In the end, Pohl’s ruling was somewhat anticlimactic, mostly sidestepping the law-of-war issues that intellectually engaged the courtroom in favor of giving “appropriate” deference to the political branches of the U.S. government. The judge did not adopt the prosecution’s position that the armed conflict with al Qaeda started with Osama bin Laden’s 1996 declaration of war. Instead, he said the legislative and executive branches had determined “that hostilities existed as of September 11, 2001, and for at least some period before,” which satisfied him.

Judge Parrella did not rule from the bench on whether Connell could move forward with his grander vision of a personal jurisdiction hearing that would involve witness testimony expected to stretch over several upcoming sessions.

Connell did walk away with one victory Wednesday afternoon. The Court of Military Commission Review decided to stay the Thursday testimony of a former CIA interpreter who appeared on a defense team in 2015. Connell's team challenged Parrella’s decision to hold the testimony in a closed session without the public or the defendants. The review court is expected to give its ruling on the dispute before the next pretrial session, scheduled for April 29 to May 3.

Editor's Note: On April 3, the judge sided with the government by ruling that Pohl's decision on the existence on hostilities in the al Hawsawi challenge applied to all five defendants. 

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.