The judge in the Sept. 11 case on Friday wound up a week of pretrial arguments on overarching legal challenges to the war court with a warning to the prosecution that he might in September suspend trial preparation — if the government doesn’t fix technological problems bedeviling the defense team.
Army Col. James Pohl, the judge, heard a week’s worth of motions but issued no substantial rulings. Then he dropped the bombshell that at the next set of hearings, Sept. 16-20, he would rule on whether it is appropriate to go forward or freeze until Defense teams have “adequate resources.”
Throughout the week — while defense lawyer argued why the court’s not constitutional, why the case oversteps international law, why conspiracy can be a theory if not a war crime — the defense teams complained of lost motions, insecure emails, disappearing documents in a system that compromises their ability to provide an effective defense in the death-penalty case.
“It’s not fair, it’s not right,” said David Nevin, attorney for the alleged 9/11 mastermind Khalid Sheik Mohammed, calling the coming Sept. 11 trial “the most difficult and complicated case being litigated anywhere in the country.”
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Computer snafus coupled with an ethics opinion by the Pentagon chief defense counsel that they cannot conduct privileged business by email has returned trial work to the pen-and-pad era, attorney James Harrington for Ramzi bin al Shibh told the judge.
Soon after, Pohl pointedly questioned a case prosecutor, Clay Trivett, on when a new system would be set up. He would not provide a date, disagreed with the defense that their computers were insecure then blamed disappearing emails and defense motions that never arrived at the trial judiciary on the Defense Department’s recent switch from osd.mil to mil.mil domains.
To which Pohl replied that technology problems would go first at next month’s hearing, and he’d decide whether pre-trial work could go forward.
The prosecution wants a Sept. 22, 2014 opening of the trial that alleges Mohammed and four co-defendants directed, trained and financed the 19 hijacker who carried out the Sept. 11, 2001 terror attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon.
A jury of U.S. military officers will hear the case and, if they convict, decide whether to impose the death penalty.
Army Brig. Gen. Mark Martins, the chief prosecutor, looked alarmed. Martins has practiced law under battlefield conditions in Afghanistan and Iraq, and chose to characterize the problems bedeviling the defense teams as “glitches.”
He protested to the judge that defense lawyers had litigated skillfully on a variety of issues all week, even as his side argued again and again that the defense legal theory was wrong.
After the hearing, Rosemary Dillard, whose husband Eddie was killed on Flight 77, the plane that struck the Pentagon, said her first concern was that the government prosecute an appeal-proof case.
"I've waited 12 years, and I am getting old," said Dillard, 66, a former Washington D.C. American Airlines manager who now lives in Michigan. But, "I think I can do 12 more."
During this phase, the two sides are tackling overarching issues of the integrity of the system President George W. Bush built, President Barack Obama tweaked and the civilian courts are still considering.
In one instance, Martins has asked to remove the charge of conspiracy from the death-penalty case to shore up any future conviction against appeal. At issue, is a federal appeals court review in another, non-capital Guantánamo conviction of whether conspiracy is a legitimate war crime.
In another, attorneys defending two men accused of helping funnel money to the Sept. 11 hijackers, argued terrorism is not a legitimate war crime and more suitably prosecutable at a civilian court.
“It’s a home-made system that cannot be allowed to stand without significant challenges,” said Navy Cmdr Kevin Bogucki, defense attorney for alleged 9/11 deputy Ramzi bin al Shibh, who argued the war court is unfair because it excludes U.S. citizens.
To Amnesty International observer Zeke Johnson, the look inside the pretrial hearings suggested what he called a “Frankencourt” in the making “cobbled together from disputed rules, unsettled procedures and pervasive secrecy.”
“This monster’s apparent purpose is to ensure convictions, execute the defendants, and hide evidence of torture,” he said..