Defense Teams Seek to Derail 9/11 Case Over CIA Black Site's Removal

Defense attorney David Nevin discussed his motion to abate the case at the closing press conference.

Guantanamo Naval Base, Cuba – The pretrial hearings of the five men charged with orchestrating the Sept. 11 terrorist attacks reached a critical juncture on Friday as defense counsel sought to derail the proceedings because of what they say was the improper destruction of a CIA black site where their clients were tortured.

And while government lawyers claimed the site was preserved through photographic duplication, the defense teams highlighted flaws in not being able to see evidence with one's own eyes.

David Nevin, the lead attorney for accused plot mastermind Khalid Sheikh Mohammed, asked the judge to disqualify both himself as well as the entire prosecution team for a series of events that allowed a sealed June 2014 “destruction order” to be withheld from the five defense teams for more than a year and half. The teams claim that secrecy prevented them from inspecting the site and developing evidence that could mitigate against the death penalty.

“We have lost important exculpatory evidence,” Nevin said to Army Col. James Pohl. “We do not have an adequate substitution.”

Prosecution trial counsel Robert Swann countered that the government destroyed nothing, claiming the "decommissioned" site was “preserved” via photographic evidence that was given to the five defense teams.

“They have the very best of substitutions,” Swann said. He accused the defense teams of denigrating "American Heroes."

That claimed substitute, Nevin said, was "pretty close to a joke." He was infuriated by the government’s insistence that nothing was destroyed.

“If it’s still around, I’d like to see it,” Nevin said. “It was, in fact, destroyed.”

“Words have meaning,” he added.

Using Nevin's own words, the judge asked Swann what the remedy should be if he had in fact erred in authorizing “the destruction of the property.”

Swann replied it would be grounds for appeal, but not for disqualification.

Friday's debate marked the last day of a one-week session. Pretrial hearings are set to resume Oct. 16. This week, the government renewed its push for a scheduling order to set jury selection for January 2019. Pohl did not rule on the motion. The five defendants were arraigned in May 2012.

In December 2013, Pohl ordered the government to preserve “any overseas detention facilities” unless otherwise ordered. In June 2014, he issued the order allowing the decommissioning of the disputed black site, the location of which was not discussed in open court. His order was provided to the government to make any necessary redactions. A redacted copy was delivered to the judge's staff in July 2014, but it was not distributed to the defense teams.

The judge's staff learned of the issue after defendant Ammar al Baluchi's lead lawyer, James Connell, made multiple inquiries about a “placeholder” document indicating the judge had made a sealed ruling on motions related to black sites. In early 2016, the teams were finally informed about the substance of the 2014 ruling that the site had been decommissioned.

The teams for Mohammed, Ramzi bin al Shibh and Walid bin Attash want both the judge and the prosecution disqualified. Connell supports the removal of the prosecution but not that of Pohl. In court, he referred to emails between the judicial staff and the prosecution that addressed his inquiries about the placeholder document. In one such email, Connell said, a prosecution attorney clearly advocates that the staff provide a “technical” response about the existence of a ruling – and not convey the fact of the black site's decommissioning.

“The military commission made a mistake, and the prosecution exploited that mistake,” Connell argued to Pohl.

The team for Mustafa al Hawsawi, led by Walter Ruiz, wants the judge and the prosecution to stay on the case but plans to seek remedies later in the litigation.

Swann argued that the government merely followed the procedures found in Section 505 of military commissions rules that are closely based on the Classified Information Procedures Act, or CIPA, which allows the government to seek substitutions and summaries of classified material.

"No one violated any rules here," Swann said. "They just don't like the rules."

Nevin and Connell both pushed back on that claim, arguing that the June 2014 order was not part of the "505 process" in which the government asks for substitutions of evidence.

They said the required substitution procedure did not happen until the government submitted to Pohl its initial photographic representation of the black site – which the defense teams still have not seen – along with an edited version to be provided to the teams as a 505 substitution.

On Thursday, laying the groundwork before closing arguments on the motion, Nevin voir dired the judge about the order. Pohl said from the bench that he had not visited the original black site before authorizing the decommissioning.

On Friday, Nevin noted that the CIPA-like "505 process" requires the preservation of the original evidence. Now, he said, the defense only had a version that was twice removed from the original.

“You did not follow the rules when you approved a substitution of a substitution,” Nevin said. “There’s no such thing.”

James Harrington, the lead attorney for bin al Shibh, argued the power of storytelling. He told one himself, about a cottage where his father lived until 1921, off the coast of Ireland. It had a thatched roof, no electricity and just one room for the entire family. And while Harrington had heard stories about it for many years, he did not fully grasp his father’s upbringing until he viewed the decrepit structure with his own eyes in 1982.

What the defense teams have lost, he told Pohl, is the ability to tell an important story to those who will decide whether their clients will live or die.

Pohl did not rule on the motion Friday. He held a closed session Friday afternoon to hear classified information related to the black-site order and other pending motions.