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| Guantánamo Bay lawyers deny colluding with judge in key 9/11 case | Guantánamo Bay lawyers deny colluding with judge in key 9/11 case |
| (3 months later) | |
| The military lawyers prosecuting the self-proclaimed architect of the 9/11 attacks have struck back against accusations that they colluded with a military judge to destroy evidence relevant to Khalid Sheikh Mohammed’s defense. | The military lawyers prosecuting the self-proclaimed architect of the 9/11 attacks have struck back against accusations that they colluded with a military judge to destroy evidence relevant to Khalid Sheikh Mohammed’s defense. |
| In the latest sign that the US’s premier military commission at Guantánamo Bay is becoming what one observer likened to a “schoolyard brawl”, the prosecutors said Mohammed’s attorneys had cynically pursued a “scorched-earth litigation strategy” that involves “batter[ing] the reputation” of the army colonel presiding over the case. | In the latest sign that the US’s premier military commission at Guantánamo Bay is becoming what one observer likened to a “schoolyard brawl”, the prosecutors said Mohammed’s attorneys had cynically pursued a “scorched-earth litigation strategy” that involves “batter[ing] the reputation” of the army colonel presiding over the case. |
| In a 24 May military commissions filing recently unsealed to the public, the prosecution accuses Mohammed’s defense team of bad faith and shoddy lawyering and says the true goal of its counterparts was to destroy the credibility of the controversial military trial system. | In a 24 May military commissions filing recently unsealed to the public, the prosecution accuses Mohammed’s defense team of bad faith and shoddy lawyering and says the true goal of its counterparts was to destroy the credibility of the controversial military trial system. |
| Yet in the filing, the chief commissions prosecutor, Brigadier General Mark Martins, and his team elide the central charge in the controversy: the destruction of evidence in a death penalty case. | Yet in the filing, the chief commissions prosecutor, Brigadier General Mark Martins, and his team elide the central charge in the controversy: the destruction of evidence in a death penalty case. |
| Last month, Mohammed’s attorneys leveled the extraordinary allegation that military judge and army colonel James Pohl had secretly issued an order permitting the government to destroy evidence that he had earlier publicly agreed to preserve. While extensive classification rules render central facts in the case difficult to conclusively determine, other rulings suggest the evidence in question concerns Mohammed’s torture by the CIA at secret prisons. | Last month, Mohammed’s attorneys leveled the extraordinary allegation that military judge and army colonel James Pohl had secretly issued an order permitting the government to destroy evidence that he had earlier publicly agreed to preserve. While extensive classification rules render central facts in the case difficult to conclusively determine, other rulings suggest the evidence in question concerns Mohammed’s torture by the CIA at secret prisons. |
| Mohammed’s attorneys learned about what they call Pohl’s “destruction order” more than a year after Pohl issued it and after they said the destruction of evidence took place, which they said prevented them from seeking a remedy. On 10 May, they filed a motion seeking the removal of Pohl and of Martins and his prosecution team and an end to the long-delayed military tribunal for Mohammed. | Mohammed’s attorneys learned about what they call Pohl’s “destruction order” more than a year after Pohl issued it and after they said the destruction of evidence took place, which they said prevented them from seeking a remedy. On 10 May, they filed a motion seeking the removal of Pohl and of Martins and his prosecution team and an end to the long-delayed military tribunal for Mohammed. |
| In its 24 May response, the prosecution calls the allegation of collusion “defense-manufactured nonsense” and a “willfully blind narrative”. It notes pointedly that Mohammed’s attorneys alerted reporters to their claims before their filing was publicly available. | In its 24 May response, the prosecution calls the allegation of collusion “defense-manufactured nonsense” and a “willfully blind narrative”. It notes pointedly that Mohammed’s attorneys alerted reporters to their claims before their filing was publicly available. |
| Martins’ team say their counterparts “will apparently stop at nothing in their attempts to convince whoever may still be following their shrill antics that justice is simply not attainable at Guantánamo Bay before a military commission. Their goal is not acquittal in this case; their goal, and their entire defense strategy, is that the case never, ever be tried.” | Martins’ team say their counterparts “will apparently stop at nothing in their attempts to convince whoever may still be following their shrill antics that justice is simply not attainable at Guantánamo Bay before a military commission. Their goal is not acquittal in this case; their goal, and their entire defense strategy, is that the case never, ever be tried.” |
| However, the prosecution’s 18-page filing does not explicitly dispute the alleged destruction of evidence. It disputes that the destruction occurred in secret, claiming that the defense team possessed insufficient legal savvy to understand what was occurring. The filing instead repeatedly refers to moves to “preserve and/or substitute” information in the case. | However, the prosecution’s 18-page filing does not explicitly dispute the alleged destruction of evidence. It disputes that the destruction occurred in secret, claiming that the defense team possessed insufficient legal savvy to understand what was occurring. The filing instead repeatedly refers to moves to “preserve and/or substitute” information in the case. |
| Evidentiary substitution occurs in civilian courts as a mechanism to preserve classified or sensitive information in open trials. The procedure puts forward summaries of information rather than the information itself. It featured in the terrorism trial of Zacarias Moussaoui, whose attorneys agreed to summaries of statements from, among others, Khalid Sheikh Mohammed. | Evidentiary substitution occurs in civilian courts as a mechanism to preserve classified or sensitive information in open trials. The procedure puts forward summaries of information rather than the information itself. It featured in the terrorism trial of Zacarias Moussaoui, whose attorneys agreed to summaries of statements from, among others, Khalid Sheikh Mohammed. |
| “They’re finessing the issue,” Karen Greenberg, author of Rogue Justice: The Making of the Security State, said of the prosecution. | “They’re finessing the issue,” Karen Greenberg, author of Rogue Justice: The Making of the Security State, said of the prosecution. |
| Mohammed’s attorneys have rejected the adequacy of the substitution. On 31 May, they filed a response to the prosecution’s response. Under the rules of the military commissions, it is not yet available publicly. | Mohammed’s attorneys have rejected the adequacy of the substitution. On 31 May, they filed a response to the prosecution’s response. Under the rules of the military commissions, it is not yet available publicly. |
| “I take it we would not be going through all this if they had not actually destroyed the evidence,” David Nevin, lead attorney for Mohammed, told the Guardian. | “I take it we would not be going through all this if they had not actually destroyed the evidence,” David Nevin, lead attorney for Mohammed, told the Guardian. |
| A Pentagon spokeswoman for Martins declined to elaborate on the destruction of evidence. | A Pentagon spokeswoman for Martins declined to elaborate on the destruction of evidence. |
| “If Mr Mohammed had been informed timely [ie, before the destruction of the original] that the Commission was approving a substitute for this evidence, Mr Mohammed would have had the right and ability to bring a motion to compel disclosure of the original evidence,” Mohammed’s attorneys wrote on 10 May, despite “apparently prohibitive” military commissions rules. | “If Mr Mohammed had been informed timely [ie, before the destruction of the original] that the Commission was approving a substitute for this evidence, Mr Mohammed would have had the right and ability to bring a motion to compel disclosure of the original evidence,” Mohammed’s attorneys wrote on 10 May, despite “apparently prohibitive” military commissions rules. |
| The prosecution concedes that the defense team was not informed in any timely manner. Pohl’s 4 June 2014 order concerning the disposition of the evidence in question was not provided to the defense until January 2016. The prosecution said that both it and the judge believed the other would inform Mohammed’s attorneys, but it denied any collusion took place. | The prosecution concedes that the defense team was not informed in any timely manner. Pohl’s 4 June 2014 order concerning the disposition of the evidence in question was not provided to the defense until January 2016. The prosecution said that both it and the judge believed the other would inform Mohammed’s attorneys, but it denied any collusion took place. |
| “Simple miscommunication, resulting in inaction, is what caused a delay of provision of the redacted order to the defense, nothing else,” wrote the prosecution, which argued that the 18-month delay was ultimately irrelevant to the case. | “Simple miscommunication, resulting in inaction, is what caused a delay of provision of the redacted order to the defense, nothing else,” wrote the prosecution, which argued that the 18-month delay was ultimately irrelevant to the case. |
| “The adequate substitute [information] is all the defense would have ever been entitled to under the law; so the fact that they were not notified of the specifics of the order until 18 months later, while regrettable and completely unintentional, caused no actual prejudice to the accused.” | “The adequate substitute [information] is all the defense would have ever been entitled to under the law; so the fact that they were not notified of the specifics of the order until 18 months later, while regrettable and completely unintentional, caused no actual prejudice to the accused.” |
| Four years after Mohammed and his co-defendants were indicted before the commission – their second military commission, following an aborted attempt to try the 9/11 case in federal court – the trial phase is nowhere in sight. Years of pre-trial hearings, in which disputes have ranged from the availability of classified evidence to the conditions of the detainees’ Guantánamo confinement, have yet to conclude – all before Pohl addresses the question of his fitness to continue. | Four years after Mohammed and his co-defendants were indicted before the commission – their second military commission, following an aborted attempt to try the 9/11 case in federal court – the trial phase is nowhere in sight. Years of pre-trial hearings, in which disputes have ranged from the availability of classified evidence to the conditions of the detainees’ Guantánamo confinement, have yet to conclude – all before Pohl addresses the question of his fitness to continue. |
| Greenberg, the director of the Center on National Security at Fordham University Law School, called the prosecution’s filing an indication that the military commissions had run aground. | Greenberg, the director of the Center on National Security at Fordham University Law School, called the prosecution’s filing an indication that the military commissions had run aground. |
| “The incensed tone and rhetoric of this document belong more to a schoolyard brawl than a courtroom debate,” she said. | “The incensed tone and rhetoric of this document belong more to a schoolyard brawl than a courtroom debate,” she said. |
| “The document is little more than a name-calling lament of frustration against the defense team, a deflection of responsibility for the government’s failures to share information in an acceptable way, and above all, a sense of shock that their intentions and behavior have been called into question.” | “The document is little more than a name-calling lament of frustration against the defense team, a deflection of responsibility for the government’s failures to share information in an acceptable way, and above all, a sense of shock that their intentions and behavior have been called into question.” |