Pretrial Hearings Resume in 9/11 Case Without Chief Prosecutor

Guantanamo Naval Base, Cuba – Prosecutors, defense attorneys, court staff and observers arrived at Guantanamo Bay on Saturday for a week-long session beginning Memorial Day, at which they will resume arguments on a wide range of pretrial motions pending in the case. The trip marks the first courtroom action since late February for the crew, who had been surprised by Army Col. James Pohl's decision to call off the April hearings.

The judge cancelled the April 5-15 session after receiving a sealed filing by a Justice Department “Special Review Team” that is required to update Pohl on any investigations into the defense teams. An FBI probe into the defense team for one of the defendants had stalled progress in the case for more than a year, from mid-2014 to the fall of 2015.

However, after reviewing additional review team submissions last month, Pohl ruled on April 27 that “there are no facts, investigations or conflicts that implicate any of the Accused or Defense Counsel in this Commission.” He said in the ruling that he did not need additional updates from the review team on the issue that caused the April cancellation.

Pohl also denied as moot a defense effort to learn what was in the sealed filing, leaving all five defense teams in the dark.

“I don’t understand what happened with any of that,” James Connell, the lead attorney for Ammar al Baluchi, told the traveling media contingent in a brief meeting late Saturday afternoon. “Whatever it is, it’s gone or over with for now.”

The five defendants accused of planning and financing the Sept. 11 terrorist attacks were arraigned in May 2012; a trial date is not set. In addition to Connell’s client, the defendants include accused plot mastermind Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al Shibh and Mustafa al Hawsawi. [Related: See Lawdragon's Guantanamo coverage.]

The commission’s chief prosecutor, Army Brig. Gen. Mark Martins, did not travel to Guantanamo Bay this week's session. He spoke to reporters in a conference call Saturday evening to explain that his time was better spent working on determining what classified and other information the government is obligated to turn over to the defense. In particular, the defense wants details of how their clients were treated at CIA black sites before arriving at Guantanamo Bay in 2006.

Also, Martins will be part of the government team for oral arguments in a Thursday appellate hearing before the commission system’s Washington, D.C.-based review court, known as the U.S. Court of Military Commission Review, in a separate case against Abd al Rahim al Nashiri for his alleged role the bombing of the USS Cole in 2000.

Before taking questions by phone, Martins paid tribute to members of the armed services and noted that many of those currently serving joined in the aftermath of the Sept. 11 attacks.

“My own judgment is that this is a new greatest generation of service members,” Martins said.

This week’s hearings follow a flurry of high-profile activity in the case. On May 11, the team for Khalid Sheikh Mohammed filed a motion seeking the recusal of Martins and his team, along with Judge Pohl, over what defense lawyers said was the government’s destruction of evidence with the judge’s consent. In a conference call with reporters on the day of the filing, Mohammed’s team, led by David Nevin, said they could not describe what the evidence was, only that it was favorable to the defense. The recusal motion is not on the calendar for this week, pending full briefing.

In a separate and highly anticipated development, detainees from the Camp 7 detention facility are expected to testify in support of a defense motion to hold the government in contempt.

Bin al Shibh testified at the last hearings in February that the Camp 7 guard force has been pumping his cell and other locations with noises and vibrations, which he says is a continuation of the torture he experienced at the CIA black sites. Now, his lead defense attorney, James Harrington, plans to call two detainees not charged in the case to corroborate his client’s claims. The government also plans to call a former member of the guard force as a witness. Witness testimony is expected to start Thursday.

Female Guard Ban Remains in Place for Six More Months – For Now

Late last month, Pohl decided to lift his temporary ban on female guards touching the defendants on their way to and from court proceedings and meetings with their lawyers, denying defense requests to make the ban permanent. Pohl said he assumed the defendants had “a bona fide religious belief” against contact with unrelated women but did not see any evidence that “minimal contact” by guards during transports forced the men to relive past torture, which included sexual humiliations.

However, Pohl said the ban would be left in place for an additional six months to “deter” the “inappropriate comments” made by senior Department of Defense officials who were critical of the temporary ban. He said he was taking this step to protect the independence of the military commission from unlawful influence. The judge added that he would consider ending the ban sooner if the officials took steps “to absolve any taint” from their past comments.

On Friday, Secretary of Defense Ash Carter and Joint Chiefs of Staff General Joseph Dunford said in a prepared statement that their criticisms of the ban “had no intention to influence the military judges presiding over the military commissions.” Presumably, prosecutors will use the statement in support of a motion have the ban lifted immediately, though Martins on Saturday would not say what his next steps would be.

Pohl also denied a motion by Mohammed’s lawyers to abate the proceedings until they learned why their longtime interpreter had not yet had his “Special Access Program” (or “SAP”) security clearance restored. The interpreter lost his SAP access in July 2015, which has prevented him from meeting with the client and taking part in commission hearings.

The Mohammed team argued that the interpreter’s limbo status was disrupting the preparation of the defense and perhaps signaled that its team members “were under investigation, creating the possibility of a conflict of interest.”

Pohl disagreed, ruling on May 19 that the ongoing Department of Defense review of the interpreter’s SAP access did not create a conflict. He also agreed with prosecutors that the defense was not entitled to a “specific interpreter” and ordered that the team be given a new interpreter by June 15 if the existing one did not receive his SAP clearance.

The interpreter’s SAP access had not been restored as of Saturday afternoon.