Defense attorneys are split on whether to break up the joint capital trial of the five Guantánamo prisoners accused of plotting the Sept. 11 attacks.
Not all five legal teams had filed responses by Judge James L. Pohl’s May 31 deadline to advise him on whether he should split off the prosecution of alleged mastermind Khalid Sheik Mohammed from any of the other four accused 9/11 conspirators.
But James Connell III, the Pentagon-paid attorney for Mohammed’s nephew, Ammar al Baluchi, said Friday he urged the judge to try the nephew separately.
“Individual justice has been the norm in capital terrorism cases in the United States,” said Connell, who casts his client as a bit player in the government charge sheet and undeserving of a death-penalty prosecution.
Baluchi, 35, allegedly wired money to some of the 9/11 hijackers and helped in some of their U.S.-bound travel.
To bolster his position on separate trials, Connell invoked the 1995 Oklahoma City bombing cases. Timothy McVeigh and Terry Nichols were tried separately, he noted, and McVeigh was sentenced to die and executed June 11, 2001 while Nichols is serving a life sentence.
In contrast, defense attorney James Harrington said Thursday his submission to the judge argued “it’s premature” to say whether his client Ramzi bin al Shibh should have a solo trial. Bin al Shibh, 40, allegedly organized the Hamburg cell of Sept. 11 hijackers while four times failing to obtain a U.S. visa and become one.
Pentagon prosecutors don’t want the judge to split up the complex terror prosecution.
They argue that it is “in the interests of justice” that all five should be tried together for the murders of 2,976 people on Sept. 11, 2001. They also attached a copy of a memo signed by all five accused in 2008, two years after they got to Guantánamo from secret CIA custody, in which the accused described the allegations against them as a “badge of honor.”
Lawyers for alleged al Qaida lieutenant Walid bin Attash, 34, wrote that they had insufficient information — notably they hadn’t been furnished case evidence — to take a position on whether to sever.
Lawyers did not file responses for either alleged Saudi money mover Mustafa al Hawsawi nor Mohammed, whose legal teams got extensions until June 8 and June 15 to represent each man’s position.
The defense filings were under seal at the Pentagon on Friday to give U.S. intelligence agencies up to 15 business days to scrub them before release to the public.
The judge on his own, without a request from a defense lawyer, sought all sides opinions on whether to split up the case following the marathon 13-hour arraignment of the five alleged organizers, trainers and funders of the hijackers on May 5. Pohl, an Army colonel, had intended to hold the next 9/11 pre-trial hearing June 12 but was confronted with scheduling conflicts among lawyers on the five separate legal defense teams.
He also questioned whether a joint trial would be a problem if there were a conviction because the same jury decides whether to hand down a death sentence. “It is conceivable that the mitigation evidence for one accused could possibly be considered aggravation evidence for another,” Judge Pohl wrote in his May 17 order to the lawyers to brief him on whether severance is appropriate now.
Prosecutors said it was too soon to address that issue and called severance for that reason an “extraordinary action at this premature point.”
But the prosecutors pointed out that, if all five still sought the “martyrdom” spelled out in their 2008 “badge of honor” memo, it would be “wholly inconsistent” to be arguing over aggravation and mitigation.
The judge now has time to work out whether to split up the trial.
He set the next two pre-trial sessions for Aug. 8-12 and Sept. 8-12, during Ramadan and the 11th anniversary of the terror attacks respectively. The next two sessions also fall during hurricane season, which began June 1, a time when tropical storms but rarely hurricane winds lash Camp Justice, the war court compound at Guantánamo.