A military judge has rejected a bid by U.S. and international news media to watch a man who lost his family in the 9/11 attacks testify at Guantánamo well before the mass-murder terror trial starts.
Judge James L. Pohl, an Army colonel, has agreed to take pretrial testimony sometime next year at Guantánamo’s Camp Justice from Lee Hanson, 83. His son, daughter-in-law and 2-year-old granddaughter were killed when terrorists crashed United Flight 175 into the World Trade Center on Sept. 11, 2001.
What is unusual about this is that the judge agreed to let alleged mastermind Khalid Sheik Mohammed, 51, and his four co-defendants watch the testimony in a closed court. Eleven news organizations asked to let the public watch the testimony as well.
In rejecting the bid, Pohl noted that the Pentagon rules for the post- 9/11 war court, called military commissions, have “no language indicating such depositions are ordinarily open to the public.”
No trial date has been set. The alleged plotters could face military execution if they are convicted of the hijacking conspiracy that killed nearly 3,000 people in New York, at the Pentagon and in a Pennsylvania field.
Pohl decided to hear from Hanson in Cuba — with the accused in court — because his testimony might be used at the actual trial. Hanson was on the telephone with his son during the hijacking, and so his testimony about “what occurred in the course of the hijacking” is needed for the trial itself, prosecutors argued.
Read the judge’s ruling.
Essentially, the prosecution is trying to preserve time-capsule statements in case elderly witnesses die.
The judge has also agreed to separately take a deposition from retired New York City firefighter John Vigiano, 77, who lost two sons in New York on 9/11, a firefighter and New York police detective. But Vigiano will testify at a hearing room somewhere in the United States, not Guantánamo. The judge concluded that the accused terrorists need not sit in on that one, because his statements are being preserved for the hypothetical sentencing portion of the case.
“As noted by the Supreme Court, there has historically been no overarching principle mandating public access rights to pretrial discovery processes such as depositions,” Pohl also noted in the nine-page decision.
Pohl decided the matter on Dec. 12 but the Pentagon withheld it from the news organizations’ First Amendment attorneys until Tuesday, the day it appeared on the war court website, whose motto is Fairness * Transparency * Justice. The war court generally withholds filings for weeks to give intelligence agencies an opportunity to black out security information. In the case of the unclassified media motion, the decision was released in its entirety.
Our Sept. 11 trial guide, including a Who’s Who.
Case prosecutors wanted the testimony taken in public. Defense attorneys opposed it as potentially prejudicing the panel of U.S. military officers who have yet to be chosen for the case. Pretrial prejudice is a concern, the judge wrote, given “the unique challenges this case presents in this regard.” Defense lawyers earlier sought and lost an effort to get the case dismissed because various senior U.S. officials in the Bush and Obama administration declared the five men guilty even before the tribunal.
The news organizations that unsuccessfully challenged closure included the Miami Herald and its parent McClatchy Company, ABC, the Associated Press, CBS, Dow Jones, First Look Media, Fox News, NBC, The New York Times, Reuters and The Washington Post.
The Hanson testimony motion is not the first sought, and lost, by media challenging secrecy at the court President George W. Bush created after the Sept. 11 attacks.
Pohl earlier rejected a challenge to the Pentagon’s decision to censor material in a public transcript of an open war court hearing.
Oct. 12, 2016: Guantánamo judge approves retroactive censorship of open-court hearings
July 19, 2016: Guantánamo judge agrees to preserve two 9/11 victims’ testimony
May 31, 2016: Guantánamo prosecutors want 10 sick, elderly relatives of 9/11 victims to testify while they still can
May 31, 2016: Military judge shouts down accused Sept. 11 plot matermind
Feb. 22, 2016: Attorneys joust over right of public to vanished, open-court Guantánamo testimony
Dec. 6, 2015: Former public testimony disappears from Guantánamo transcripts