In a new test of the Guantánamo war court’s reach backwards, prosecutors in the Sept. 11 conspiracy case are asking a higher court to reinstate two charges that were recently dismissed by the trial judge.
The filing Wednesday at the U.S. Court of Military Commissions Review was a first in the 9/11 death-penalty case. Prosecutors led by Army Brig. Gen. Mark Martins are asking the Pentagon panel, which typically sides with the prosecution, to reinstate two non-capital charges — attacking civilian objects and destruction of property.
About the Sept. 11 trial
Army Col. Judge James L. Pohl dismissed the charges April 7 in a 22-page decision that was still under seal Thursday at the war court.
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Martins’ office characterized the decision this way in a note to victims of the Sept. 11 attacks, and their families: “Judge Pohl determined these non-capital charges were barred by the five-year statute of limitations applicable to non-capital offenses under the Uniform Code of Military Justice.”
The prosecutor’s office also said it had specifically asked Pohl not to halt pretrial hearings in the case while the appeals panel decides whether to overrule him. The next hearings are scheduled for May 15-19 at the U.S. Navy base at Guantánamo Bay, Cuba, where the accused mastermind Khalid Sheik Mohammed and his four allegec accomplices are imprisoned.
Defense lawyers said Pohl also ruled that the principle of ex-post facto applied to the two charges related to the Sept. 11, 2001 attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon. In doing so, Pohl essentially disagreed with Congress, which created the court years after the 9/11 attacks.
Defense attorney Jay Connell said from Guantánamo Thursday that his side would at least seek cancellation of the May hearings because the question of ex-post facto is at issue in other pretrial arguments.
Either way, the latest move cast doubt on the prosecution’s proposed June 2018 start of the mass murder trial — a date the judge has declined to set. Pohl has cited, among other things, inadequate court facilities.
The prosecution notice triggered a provision that, upon government request, lets the Pentagon panel decide whether a military judge hearing a case at Guantánamo was correct in a decision to dismiss a charge. From there, either side could appeal to the civilian U.S. Court of Appeals for the District of Columbia Circuit Court.
Prosecutors went a similar route in the USS Cole death penalty case against Saudi Abd al Rahim al Nashiri. They ultimately won reinstatement of charges dismissed by the Air Force judge in that case as part of higher court challenges that halted pretrial hearings in that case for about 18 months.
General Martins, the chief prosecutor, did not respond to a request for comment Thursday. But his office wrote victims of the Sept. 11 attacks, and their family members, not to be alarmed by the decision to appeal — “although this might sound like an ominous development.”
“The prosecution team does not believe that the judge’s ruling and/or the intended appeal will materially effect the government’s case in chief at trial or the timeline of getting the case to trial,” Martins’ liaison to victims and witnesses advised. “We continue to move forward and are not deterred.”
Note from the Pentagon prosecutor’s liaison to war court victims and witnesses as it appeared on a bulletin board for Sept. 11 families on Thursday:
Dear 9/11 Families,
On Friday, April 7, 2017, Judge Pohl issued a ruling on AE251, Defense Motion to Dismiss Charges III and V as Barred by the Statute of Limitations. Charge III alleges a violation of 10 U.S.C. §950t(3), Attacking Civilian Objects. Charge V alleges a violation of 10 U.S.C. §950t(16), Destruction of Property in Violation of the Law of War. Judge Pohl granted the motion and dismissed both charges.
This dismissal affects only charges that were referred non-capital; in other words, these are charges that do not carry the death penalty as a potential sentence under military commissions law. Judge Pohl determined these non-capital charges were barred by the five-year statute of limitations applicable to non-capital offenses under the Uniform Code of Military Justice.
The prosecution has a right to challenge the judge's decision to dismiss the charges by filing an interlocutory appeal to the United States Court Of Military Commission Review. The prosecution filed its notice of intent to file an interlocutory appeal with Judge Pohl yesterday. Although is it an option under the rules for the judge to stop the proceedings until the appeal is decided, it is not required, and the prosecution has taken the position that the proceedings should continue unabated.
Although this might sound like an ominous development, the Prosecution Team DOES NOT BELIEVE THAT THE JUDGE'S RULING AND/OR THE INTENDED APPEAL WILL MATERIALLY EFFECT THE GOVERNMENT'S CASE IN CHIEF AT TRIAL OR THE TIMELINE OF GETTING THE CASE TO TRIAL. WE CONTINUE TO MOVE FORWARD AND ARE NOT DETERRED.
We will keep you informed as developments occur.
Karen V. Loftus
Director, Victim Witness Assistance Program
Office of the Chief Prosecutor of Military Commissions