Tensions in 9/11 Hearings Rise Over CIA Black Site Evidence; Defendant Removed

The chief prosecutor of the military commissions, Army Brig. Gen. Mark Martins, took questions from reporters in the Camp Justice media center on Sunday. "Expect the unexpected," he said. 

Prosecutors and defense attorneys in the Sept. 11 case engaged in an unusually heated debate on Thursday over defense allegations that the government improperly destroyed evidence related to a CIA interrogation site, with each side claiming the other is “despicable.”

David Nevin, the lead lawyer for alleged plot mastermind Khalid Sheikh Mohammed, said that the judge and the entire prosecution team should be removed from the case for colluding to destroy evidence of torture – access to which the defense considers essential if their clients are to have any hope of avoiding the death penalty.

But first, Nevin requested that the judge, Army Col. James Pohl, recuse himself from hearing the motion to begin with, claiming his impartiality has at least the appearance of being in doubt. Nevin argued that another military judge should determine whether Pohl and the Office of the Chief Prosecutor, led by Army Brig. Gen. Mark Martins, acted in a manner that warrants their disqualifications from the case.

Pohl denied the request Thursday afternoon, leaving the substance of the alleged collusion for a later session.

Earlier, Nevin told the court that his team had hoped to “reconstruct as best as possible” all the circumstances of Mohammed's torture.

“We have lost our ability to put our hands on some of the most important evidence in this case,” Nevin said.

Mohammed and the four other defendants with whom he stands accused of plotting and financing the 9/11 attacks all were held for multiple years at CIA black sites before they were  transferred to Guantanamo Bay in September 2006. The evidence in question relates to a former CIA interrogation site. The government provided substitutions of the evidence in the form of photographs. It has not been discussed in open court whether the original evidence is an entire black site, since destroyed, or other tangible manifestations of a building or area where torture occurred.

In June 2014, Pohl issued a sealed order granting the government's request to “preserve or substitute” certain information; the defense has claimed the government's phraseology merely camouflages the government's true intent – to "destroy" the evidence.

Nevin said the destruction order occurred six months after Pohl had issued an earlier “do not destroy” order designed to preserve evidence of overseas detention facilities. Since then, Nevin continued, defense teams had operated under the assumption that they would be notified if terms of the order were changed. Instead, the defense teams did not receive a redacted version of the June 2014 "destruction order" until about two years later.

Nevin said he has deduced from the pertinent pleadings that Pohl approved the government’s proposal to substitute photographs for the original evidence despite having never seen the original version.

Prosecutor Robert Swann shot back that Nevin was “not Sherlock Holmes.” The government has conceded that the failure to provide the order to the defense teams in a timely manner was “regrettable,” he said, and blamed it on miscommunication between the prosecution and Pohl as to whether the judge or prosecutors were responsible for distributing the document.

Otherwise, Swann said, the government followed the procedures outlined in commission rules, modeled on the Classified Information Procedures Act (CIPA) used in federal court cases, that allow prosecutors to seek substitutions or summaries for classified evidence. A military judge can grant a substitution or summary if it provides the defense “with substantially the same ability to make a defense as would discovery of or access to the specific classified information.”

Swann accused Nevin of “grandstanding” and “a perverse distortion of the facts,” and claimed the defense did not want to play by the rules.

“You have done nothing wrong, nor have we,” Swann told the judge during the tense hearing.

Nevin was incredulous based on what he viewed as the government's deception.

“And we are going to be lectured about cheating?” he asked.

The war of words in court fulminated from bitter exchanges previously contained in written pleadings. Prosecutors had filed documents accusing the defense of engaging in a “scorched-earth litigation strategy” and “shrill antics” – the latest example being a “hatchet-job of a motion” unfairly attacking Pohl after 35 years of honorable service, prosecutors wrote.

In response, Mohammed's team wrote that prosecutors were predictably relying on “jingoistic histrionics” and had an “overarching priority of covering up the wide-ranging governmental conspiracy in criminal wrongdoing.”

Defense teams for Walid bin Attash and Ramzi bin al Shibh have also joined the motion to have Pohl and the current prosecution team removed from the case.

James Connell, the lead attorney for Ammar al Baluchi, is instead seeking to voir dire the judge to assess whether he sees grounds for disqualification.

Connell said the facts surrounding the destruction of evidence were “heartbreaking” and that he had hoped the accounts were not true.

“I do not want to believe them now,” Connell said.

The lead lawyer for Mustafa al Hawsawi, Walter Ruiz, also is not seeking recusals. Ruiz has long sought to have his client severed from the case and said he is ready to move forward. He said Swann was unfairly painting all the defendants with “the same brush” – making deliberate attempts to avoid “individualized determinations” of guilt.

However, Ruiz has joined Mohammed motion's on grounds of due process, and intends to seek other remedies at trial or any sentencing phase.

Bin Attash Removed from Court

Wednesday's arguments over the desire of Bin Attash to fire his appointed lawyers and select his own counsel delayed the start of Thursday's proceedings for two hours. Initially Bin Attash did not want to attend the hearings, but later appeared to change his mind – though it was unclear if he had been forced to come because he had not voluntarily waived his right to attend, as is required. Wednesday afternoon, Pohl ruled that Bin Attash did not have good cause to fire his lead attorney, Cheryl Bormann, and another civilian attorney, Michael Schwartz. He said Bin Attash would have to decide whether to accept his appointed attorneys or represent himself, denying him the right to choose his own counsel.

Before today's proceedings, Bin Attash seemed in good spirits, talking to Mohammed, who sits in front of him, and to Bin al Shibh, who sits behind him. But he rose up angrily as Bormann and Schwartz approached his table. The guards surrounded him but did not touch him. Bin Attash could be heard yelling, which became more clear after audio reached the viewing gallery when Pohl took his seat.

“No lawyers at my table,” he yelled at Pohl.

Several times, the judge asked Bin Attash to stop yelling and to sit down. When the defendant failed to comply, Pohl ordered the guard to forcibly remove him from the courtroom. Bin Attash did not return on Thursday.