The Pentagon lawyer for a Saudi-born man accused of orchestrating al Qaida’s 2000 suicide attack on the USS Cole asked a Guantánamo judge on Friday to dismiss a conspiracy charge in his death-penalty war crimes case.

Army Brig. Gen. Mark Martins, the chief war crimes prosecutor, this week petitioned for dismissal of a conspiracy charge in the Sept. 11 murder case against alleged al Qaida kingpin Khalid Sheik Mohammed and four other alleged accomplices.

The prosecutor said in a subsequent interview on the Lawfare blog website that, because of a recent civilian court ruling and that because conspiracy is not an international war crime, there was a “substantial risk” if not “uncertainty” that a Sept. 11 case conspiracy conviction would survive a civilian court appeal.

A long-held U.S. captive, Abd al Rahim al Nashiri, is in pretrial proceedings at the Guantánamo war court in a separate case that alleges conspiracy and other capital crimes in the October 2000 attack on the U.S. warship off Yemen that killed 17 American sailors.

“The same rationale that they used in 9/11 should apply here. The same underlying crimes still exist,” said Navy Lt. Cmdr. Stephen Reyes, Nashiri’s Pentagon-paid defense attorney.

Reyes said he filed a motion Friday asking the case judge, Army Col. James L. Pohl, to dismiss the conspiracy charge over the objections of the case prosecutors. “There is no rhyme or reason why you have such different treatment. They’re both capital cases.”

A Pentagon spokesman was unable to explain the disparity, or obtain an explanation from the prosecution on Thursday or Friday.