Trump's Role as Tweeter-in-Chief Could Compromise 9/11 Prosecution

Official White House Photo by Shealah Craighead.

Guantanamo Naval Base, Cuba – The tweeting habits of President Trump finally gave prosecutors, defense teams and the judge in the Sept. 11 case something to agree on as the epic case wrapped up another pretrial session this week, one day shy of the six-year anniversary of the case.

All agreed during Thursday’s oral arguments that Trump’s recent tweets on the Oct. 31 terrorist attack in New York and the Bowe Bergdahl court martial were inappropriate. They also seemed to agree to the blatantly obvious: The problem could crop up again at any time.

The area of disagreement, however, was what exactly to do about it. David Nevin, lead defense lawyer for Khalid Shaikh Mohammad, argued that the case should be dismissed for  “unlawful command influence” – a core concept in military justice that refers to improper pressure put on military proceedings to influence their outcome. With Trump's tweets, Nevin said, pressure was coming from the commander-in-chief himself.

Nevin said a possible option was removing the death penalty as a sentencing option. Earlier in the week, all five defense teams argued for similar remedies for what they viewed as the government's unconstitutional prohibition on them contacting CIA witnesses with knowledge of their clients' treatment at overseas black sites before they were transferred in 2006 to Guantanamo Bay.

The suspect tweets began Nov. 2 when Trump tweeted that he wanted to send the alleged New York truck attacker who killed eight and injured 11 to Guantanamo but that the “process takes much longer than going through the Federal system.” He added: “Should move fast. DEATH PENALTY.” He tweeted Nov.3 that a military judge’s sentencing of Bergdahl, who was dishonorably discharged but did not receive prison time for leaving his post in Afghanistan, was “a complete and total disgrace to our Country and to our Military.”

Trump did not reference the Sept. 11 attacks or the case at Guantanamo in the tweets. But Nevin argued to the judge, Army Col. James Pohl, that the first tweet clearly signaled that the president wants terrorist prosecutions to move fast and result in death sentences. He said the second tweet indicated that Trump will attack judges as well as military officers who will serve as jurors in the commissions for reaching independent decisions that do not satisfy the president.

“It’s very, very difficult to un-ring a bill,” Nevin argued.

Pohl already has grappled with potentially prejudicial statements made by officials in the Obama and Bush administrations relating to the Sept. 11 attacks and the five defendants charged in the case. He has rejected prior motions for the case to be dismissed for unlawful influence but ruled that he will allow liberal voir dire challenges during the selection of the panel members. A trial date is still not set in the case.

Prosecutor Robert Swann, noting that he himself has served as a judge, believed Trump was wrong in making the statements. But he argued that these statements, too, could be dealt with during jury selection along with other comments by officials past and present. He also wondered: How do we stop it?

“Oh, I’ve got ways to stop it,” Pohl shot back.

The judge, clearly peeved, said that it was likely "unprecedented" for a president to make a statement like Trump did on the Bergdahl case.

Swann nevertheless insisted that dismissing the charges or taking death sentences off the table was improper for a mass-murder case of nearly 3,000 people. He added that all prospective panel members will be familiar with many horrors of the attacks – such as people jumping out of the burning World Trade Center towers “to the concrete streets of New York” – and doubted that “a few comments” by Trump unrelated to the case would influence a jury.

This pretrial session also wrestled with the complexities of unlawful command influence earlier in the week. On Tuesday, defense teams argued that the case should be dismissed over the firing of the “convening authority,” Harvey Rishikof, the Department of Defense official who had been responsible for managing the military commissions system. The job of convening authority includes logistical and resource decisions along with the power to refer charges, negotiate plea agreements and review verdicts.

Secretary of Defense James Mattis fired Rishikof in early February in a surprise shake-up that also included the dismissal of Rishikof’s legal advisor. Defense attorneys believe that Rishikof may have been punished for exploring plea deals with the defendants and for steps he took to push forward a $14-million expansion of the Guantanamo court complex.

James Connell, the lead attorney for Ammar al Baluchi, said the firings constituted unlawful command influence because they involved retaliation for “judicial acts.”

“They acted within the scope of their judicial acts, their judicial responsibility as the convening authority and the legal advisor, and were retaliated against for it,” Connell said.

Swann told Pohl that he should take the declarations submitted by Mattis and Pentagon General Counsel William Castle at their word. The key factor, he said, was that Rishikof asked the Coast Guard for aerial imagery of the court complex to assist in the expansion plans – and did so after the Pentagon had refused an earlier request to provide it.

“Going around the chain of command is not what we expect of those that we place in charge,” Swann argued. “Unity of effort on all aspects of this case is not just expected, it is required.”

The parties were scheduled to finish oral arguments on the Rishikof dispute Thursday morning. However, both Connell and Nevin said they have been in contact with witnesses with knowledge of the firings and asked Pohl to postpone further argument. The next pretrial session is scheduled to start July 23.

Victim family members chosen by lottery to attend the session included Tom Resta, who came with his fiancé, Cherie Faircloth.  Resta lost his brother John and sister-in-law Sylvia, who was seven months pregnant, in the North Tower. Resta said about 80 people he knew died that day.

Resta said he supported the case being held at Guantanamo but wanted it to move faster. Still, he said he did not want plea deals – which he thought would upset victim family members – but a full and fair trial.

This week at Guantanamo was also notable for the transfer from detention of Ahmed al Darbi to Saudi Arabia, bringing the total detainee population down to 40. Trump has vowed to send more “bad dudes” to the detention facility. However, the arrangement was made as part of a 2014 deal in which al Darbi pleaded guilty in exchange for testimony against other members of al Qaeda. He will serve the rest of his 13-year sentence in Saudi Arabia.

The Department of Defense announced this week that Mattis has provided Trump with “an updated policy” on sending new captives to Guantanamo Bay.

“This policy provides our warfighters guidance on nominating detainees for transfer to Guantanamo detention should that person present a continuing, significant threat to the security of the United States,” Cmdr. Sarah Higgins, a spokesperson, said in a written statement.