In a just-unsealed document, the Pentagon prosecutor of the Sept. 11 mass murder case is asking the military judge to set a series of deadlines for court filings and rulings to start the trial with jury selection on Jan. 7, 2019.
But the judge appeared to reject the proposal Thursday, hours after it was released to the public. In court, Army Col. James L. Pohl pointedly reassured a defense attorney that he would not adopt a requested deadline of four weeks from now for lawyers for the five accused terrorists to submit all “legal motions” in the case — including coming challenges to the jurisdiction of the war court, the death penalty and the Pentagon’s “capital sentencing scheme.”
Defense attorney Jay Connell declared the proposed date “impossible.”
Army Brig. Gen. Mark Martins includes the timetable in a July 31 unclassified court filing in response to a request by the judge to explain how the crude compound at Camp Justice with a single functioning courtroom could hold two national security trials or hearings at once. The USS Cole capital terror case is in pretrial proceedings as well.
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The filing says it would take $4.5 million to $6 million to build a second, smaller national security court — and prosecutor Ed Ryan said the Department of Defense had not agreed to spend the money on a single-defendant courtroom. Instead prosecutors propose a seven-day-a-week court with one trial or hearing held for four days, and another held on the other three days.
Earlier this year, Pohl bluntly told the prosecution that he would not hold “night court,” essentially a second session in the courtroom run by a revolving staff of mostly National Guard soldiers. It would burden the guard force, and it “takes away from the seriousness of the case,” he said.
Pohl has previously declined to accept other start dates proposed by the prosecution, including September 2014, March 2018 and June 2018. At one point, Martins said the trial could start in January 2015, then for a time stopped offering predictions.
Curiously, the 11-page prosecution unclassified filing — which took 23 days for intelligence agencies to clear for the public to see — also suggests that, were defense attorneys not to invoke Top Secret information at the death-penalty trial, the Pentagon would not need a Top Secret courthouse for the trial of alleged mastermind Khalid Sheik Mohammed and four co-accused.
Each 9/11 hearing during both the Bush and Obama administrations was shown to the public on a 40-second delay, including argument in unclassified government pleadings. Defense lawyers, who like the prosecution have Top Secret clearances to work on the case, have made clear they still want more evidence to argue both that any confessions made by the defendants and other captives are tainted by torture — and that, if they are convicted, the accused terrorists’ three- and four-year odyssey through the CIA’s secret prison network deprives the United States of the moral authority to execute them.
At various times some or all of the five were subjected to beatings, nudity, sleep deprivation, isolation, food manipulation, rectal abuse and confinement to a coffin-sized box or smaller, according to the so-called Senate Torture Report on the spy agency’s Bush administration era Rendition, Detention and Interrogation program. Mohammed was waterboarded 183 times.
Defense lawyers are still litigating for exacting details of what went on. They are combing through the evidence the prosecution has given them — including 13,346 pages of court approved “substitutions” for original Top Secret evidence — and are seeking to call expert witnesses to explain why they need more details.
“Although the prosecution’s affirmative case consists entirely of unclassified evidence of guilt,” the prosecutors write, “the defense’s oft-expressed intention to place those sources and methods themselves on trial validates the requirement for a courtroom that is certified as a Sensitive Compartmented Information Facility and that is configured to transmit a delayed signal for public observers.”
They add: “The worldwide pursuit of those who perpetrated the Sept. 11, 2001 attacks required the United States to employ sources and methods of intelligence and counterterrorism that remain sensitive.”
The names of nearly all the agents who interrogated the men, the troops and medical staff that took care of them, and the countries where the men were kept before they got to Guantánamo in September 2006 are all considered national security secrets.
The filing does partially respond to the judge’s order to explain how remote Guantánamo could handle a conspiracy case alleging the five men were trainers, directors, financial and travel planners of the 19 hijackers who seized four passenger aircraft and slammed them into the World Trade Center, Pentagon and a Pennsylvania field. Nearly 3,000 people were killed, and dozens more survived with physical and emotional injuries.
To be ready for January 2019, the prosecutors plan a series of mini construction projects, the addition of office space and a sixth prisoner holding cell to be completed in November 2018. No price tag is provided. Existing base lodging — from tents to trailers to hotel and guest officer quarters — is sufficient, they say, with prudent planning that includes:
▪ Seating only one death-penalty jury at a time.
▪ Creation of “a stateside staging location and surge arrangements for peak periods during trial comprising important facets.”
▪ Bringing to the base a pool of just 60 U.S. military officers at a time, in a single week, from Jan. 7, 2019 — as the judges and attorneys question them in stages to assemble a 12-member, four or more alternate military jury, called a commission.
▪ Judges ordering various, potentially adversarial or independent parties to not communicate because “complete physical separation,” typically known as sequestration, is not possible at cramped Guantánamo.
▪ Remote video teleconferencing for some trial witnesses, with the judge’s approval.
It also proposes that the judge could hold court on any day of the 2018 calendar with the exception of Christmas and the post-Ramadan Eid week — adding that, in a real crunch, six of those holiday weeks’ days could be used, too.
And, to assuage Pohl’s concern about the dignity of the proceedings, taxing the Top Secret subset of the 1,500-staff prison’s guard force and other logistics, the prosecutors offer the judge a single-page “scheduling sequence” to end each court day by 7 p.m.
The prosecutors clearly don’t agree with Pohl’s assessment that night court is inappropriate.
They offer a plan of action “without conceding that military justice proceedings occurring beyond hours of daylight would be disorderly or otherwise lack the seriousness and sobriety that participants are professionally obligated to maintain.”
“What matters most about a legal system is not the grandeur of the physical surroundings or the trappings of the courthouse,” they write, “but rather the wisdom of the court and the quality of its justice.”
“Austere locations are nothing new to American civilian judges, advocates, and juries, nor to military practitioners,” they advise Pohl, currently the longest-serving judge in the U.S. military — who has held court-martial cases in overseas battlefield conditions, including in tents.
Pohl’s predecessor, in fact, once arraigned a war court defendant in shadowy light at the national security court because the power at the Expeditionary Legal Compound and other technology failed on its 2008 debut.
“This venue’s limitation and modest characteristics impose legitimate constraints without compromising justice,” they write of the remote, 45-square-mile Navy base whose prison commander recently canceled separate bay transit for the judges who insist on segregation. Separately, the base commander at one point canceled all war court guest quarters accommodations for a 9/11 hearing, with the exception of townhouses for Sept. 11 victim family members.