The military judge in the Sept. 11 case abruptly canceled two weeks of pretrial hearings at Guantánamo that were scheduled to start on Tuesday following a secret notice from a Justice Department attorney.
The judge’s order was not released; the Justice Department’s notice was secret.
Army Col. James. L. Pohl, the judge, issued the cancellation order Friday evening as attorneys, court staff, reporters and legal observers were gathering in Washington, D.C., for a charter flight to the remote base for the April 5-15 hearings.
“The whole thing is really odd to me. I thought it was an April Fools’ joke,” said Chicago defense attorney Cheryl Bormann, who was already in Washington to travel to Guantánamo this weekend to represent alleged 9/11 plot deputy Walid bin Attash.
Neither the order nor a notation of its existence was published on the military commissions website Saturday morning. Those who saw it said it was labeled AE416D. AE is short for Appellate Exhibit.
But attorneys who saw it said the judge cited a secret 3:29 p.m. filing Friday by a Justice Department investigator, U.S. Attorney Fernando Campoamor-Sánchez, AE292KKKKK. The Pentagon’s chief war court prosecutor, Army Brig. Gen. Mark Martins, appointed the Special Review Team led by Campoamor-Sánchez two years ago to keep the judge up to date on any FBI investigations of defense team activity in the national security case.
The entire case — accusing Khalid Sheik Mohammed and four alleged co-conspirators of orchestrating the Sept. 11, 2001 plot — is cloaked in secrecy because the five men spent years in clandestine CIA custody before they were brought to Guantánamo in 2006.
The FBI investigation, among other challenges, has long impeded trial progress. Although the U.S. attorney declared as far back as June 2014 that the government wasn’t spying on them, defense attorneys have argued that the probe itself violated the attorney-client privilege and have sought details about what the FBI was doing to help decide whether their activities have or could create a conflict of interest.
Upon review of the notice the Commission has determined the hearings scheduled for 5-15 April 2015 should not proceed.
Army Col. James L. Pohl, Sept. 11 trial judge
It is not known what Campoamor-Sánchez told Pohl because, according to attorneys who were provided notice of it, it was marked “ex-parte,” meaning only the judge could read it. Judge Pohl issued his order at 5:11 p.m., apparently so hastily it included the wrong year. “Upon review of the notice the Commission has determined the hearings scheduled for 5-15 April 2015 should not proceed,” Pohl wrote, according to three people who saw it.
It initially caused some confusion because Pohl issued the decision on April 1, causing some people to question whether it was a prank. “If it’s a joke, the judge is in on it,” a bewildered defense attorney told a triple-checking reporter on Friday evening.
The five alleged plotters of the 9/11 attacks were expected back at Guantánamo’s war court compound, Camp Justice, on Tuesday for the first time since February. That session wrapped up litigation on Pohl’s 15-month-old restraining order forbidding female guards from touching the five Muslim defendants.
Pohl has yet to rule on whether he’ll keep the the religious accommodation that stirred outrage on Capitol Hill and with Pentagon brass. Fifteen troops at Guantánamo, both men and women, filed gender discrimination complaints with the military, arguing that female guards should be allowed to handle the five men between court sessions and legal meetings, just like their male counterparts.
Defense attorney Walter Ruiz, defending alleged conspirator Mustafa al Hawsawi, said by email Saturday that he did not know the reason for the delay. He reminded that Hawsawi was seeking to have his case severed from the others to more swiftly move to trial and resolution of the Saudi captive's charges.
At the Pentagon, war court spokesman Cmdr. Gary Ross, declined to release a copy of the judge’s order. By court rules, some U.S. intelligence agencies get up to 15 business days to scrub court documents, including judicial orders, before the public can review them.
“At this point, we must allow the order to speak for itself,” he said by email Saturday morning.
See our Sept. 11 trial guide here.