Rulings in Sept. 11 Case Continue Amidst Uncertainty Over Cancelled Hearings

A Justice Department filing has delayed the Sept. 11 case. Photo by Kkistl01 | Dreamstime.com.

Mystery lingered this week over Army Col. James Pohl’s decision to cancel the most recent pretrial hearings in the Sept. 11 case – a move prompted by a sealed filing from the Justice Department “Special Review Team” tasked with informing the judge about any investigations into the five defense teams.

Pohl ordered the abrupt cancellation April 1, shortly after receiving the Justice Department submission and less than two days before the scheduled April 3 departure for lawyers, court staff, media and others traveling to attend the long-scheduled hearings at Guantanamo Bay.

Observers say there are several plausible grounds for the filing, including a new FBI investigation of defense team personnel or an update on issues raised by previously disclosed investigations. The Special Review Team is also supposed to inform Pohl if the Department of Defense has initiated certain reviews of defense team members’ eligibility to access classified information.

“There really is no clarity,” Walter Ruiz, lead defense attorney for Mustafa al Hawsawi, said. “We don’t know what we don’t know.”

The Special Review team’s work is separate from that of the military commission prosecutors, who have been walled from the proceedings related to investigations of the defense. A Justice Department special trial counsel was first assigned to the case two years ago, in April 2014, after defense lawyers learned that the FBI had entered into a relationship with the security officer on the defense team for Ramzi bin al Shibh. They learned the following month that the FBI had also questioned the linguist working on the defense team for Khalid Sheikh Mohammed. Defense attorneys have criticized the attempted infiltrations and say they can have a “chilling effect” on defense work.

An FBI investigation into the Bin al Shibh team – which closed without any charges being filed – delayed the case for about 18 months. Ruiz said that he felt the parties may now be “back at square one” with a new round of litigation ahead to determine whether a conflict exists on the defense side.

Mohammed’s lead attorney, David Nevin, said that he, too, was in the dark about what the April 1 filing may contain, though he agreed that it appeared to concern conflict-of-interests issues.

“The possible existence of a conflict is really the whole reason why the special trial counsel is involved in the case,” Nevin said. “But that’s all purely based on logical deduction, and it could be something completely different.”

Both Ruiz and Nevin said that they would not wait to find out what is contained in the Special Review Team filing. Nevin said that a motion to compel discovery was in the works related to the filing that caused the cancellation. (The Special Review Team has submitted another filing to Pohl, dated April 8, according to the case’s docket. Neither its contents nor subject matter have not been released.)

Conflicts can occur in criminal cases if the defense attorneys themselves are under investigation, as an attorney could be suspected of competing motivations between proving his or her own innocence and zealously representing the client. In this case, defense lawyers have said that the constitutional right to conflict-free counsel takes on added weight because their clients all face the death penalty for alleged roles in planning and financing the Sept. 11 terrorist attacks.

Last October, after Fernando Campoamor-Sanchez of the Special Review Team told Pohl that no investigations of defense teams were pending, the judge ruled that a conflict did not exist on the Bin al Shibh team, and the case moved forward. In a written order a few months later, Pohl said that the hundreds of defense pleadings filed since the start of the conflict litigation suggested lawyers had not been “cowed” by any investigations.

Progress from subsequent hearings, in December and February, contributed to Pohl issuing a pair of written orders last week. In one, the judge adopted the prosecution’s plan to consolidate all discovery motions related to the CIA’s Rendition, Detention and Interrogation (RDI) Program that subjected the five defendants to “enhanced interrogation techniques” – which their lawyers call torture – at CIA black sites before their transfer to Guantanamo Bay in September 2006. Defense attorneys are entitled to information on past treatment of their clients to prepare their case.

The government team, led by Army Brig. Gen. Mark Martins, proposed providing the defense teams with 10 different categories of RDI information – including timelines and locations of events, interrogation procedures, photos, videos, detainee statements and government justifications for the program, among other areas. That is the same discovery “construct” being used in the military commission against the detainee charged in the USS Cole bombing, Abd al Rahim al Nashiri, who also was subjected to the RDI program.

Pohl said the government’s discovery plan satisfies “basic discovery obligations” but that he “will entertain motions for further discovery” after the defense reviews the information. Pohl had indicated during oral arguments in February his willingness to accept discovery motions outside the 10-category framework, and defense attorneys vowed to remind him.

Also on April 5, Pohl denied a joint defense motion to dismiss the charges – or to remove the death penalty as a sentencing option – for “unlawful influence.”

Defense lawyers claimed that prejudicial statements about the 9/11 defendants by senior officials in the Bush and Obama administrations unlawfully influenced the decision by the Office of Military Commission’s Convening Authority to refer the death penalty charges for trial. Pohl rejected the claim but agreed that some public statements could “taint the panel” of military officers that will eventually decide the case at trial. As a result, he said he will allow “expanded voir dire” and “liberal challenges” during the panel-selection process.

The defense filed the first motion on unlawful influence on May 11, 2012, six days after the defendants were arraigned before Pohl at the Camp Justice complex. The next pretrial hearings in the case are scheduled to start the end of May.

Meanwhile, the Miami Herald reported this week on renewed concerns of possible health risks associated with living and working at Camp Justice. The chief defense counsel of the military commissions, Marine Brig. Gen. John Baker, has ordered defense staff not to sleep at the complex.