With no date yet set for the Sept. 11 mass-murder trial, prosecutors are asking the judge to let them take and preserve live, in-court testimony from 10 elderly relatives of people killed in the terror attacks — in October, on the eve of the elections.
Under the Pentagon prosecutor’s plan the five men accused of training, financing and dispatching the hijackers who crashed the planes on 9/11 would be in the courtroom with their lawyers, who could cross-examine the witnesses. And the public would watch, through the war court’s national security 40-second delay.
The proposed witnesses include Lee Hanson, 83, who lost his son, daughter-in-law and 2-year-old granddaughter when terrorists crashed United 175 into New York’s World Trade Center, and John Vigiano, 77, a retired firefighter with throat cancer who lost two firefighter sons in New York that day. Also the 74-year-old father of Todd Beamer, the 9/11 hero of United 93 who declared “Let’s roll” and fought the hijackers before the plane crashed in a Pennsylvania field.
In other news, the terror prison is preparing for operations after Barack Obama leaves office.
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The case judge, Army Col. James L. Pohl, questioned whether it really would have to take place in open court, or even here at Guantánamo Bay. Prosecutor Ed Ryan replied that his reading of the war court rules mandates it. “It is our strong request to you that it do take place down here and the accused be required to sit in,” he said.
Ryan gestured toward alleged mastermind Khalid Sheik Mohammed and two other defendants who came to court Tuesday and said the terrorists who orchestrated “one of the most infamous crimes in history” did it while the “whole world was watching.” So he said the testimony should be taken publicly, too.
A series of seasoned criminal defense attorneys who are paid by the Pentagon to defend the five men accused of 2,976 murders on Sept. 11, 2001 urged Pohl to take the testimony in secret and release it only at the appropriate time at trial.
Depositions do not work that way, argued David Nevin, Mohammed’s attorney. Lawyers go to witnesses to take and preserve testimony. If the people are ill or infirm, said Cheryl Bormann, defending Walid bin Attash, why put them through the hardship of traveling to the war court at remote Guantánamo Bay to do the depositions?
For alleged conspirator Mustafa al Hawsawi, who voluntarily missed Tuesday’s hearing, attorney Walter Ruiz said the Saudi doesn’t object to depositions but opposes open court testimony before trial as a “public spectacle not contemplated by the rules.”
The youngest of the proposed witnesses is 65. They include six men and four women. Eight have visited this base to observe pretrial proceedings through the Pentagon’s Victim Family Members program. Their testimony would be preserved by video, a time capsule of sorts, and shown to jurors at appropriate phases of the trial of the five accused architects of the worst terror attack on U.S. soil.
Ryan said about 400 people have volunteered to be witnesses, although he expected that some would drop out. He didn’t rule out wanting to record more witnesses. The 10 proposed video witnesses “are truly the innocents in this whole event,” he said. He asked that their “voices be heard and preserved.”
Defense attorneys also oppose the proposed timing of it, in October.
“The main problem is its public nature,” Jim Harrington, death penalty defender for alleged plot deputy Ramzi bin al Shibh, told the Miami Herald. Harrington said that, because the prosecutors want it done in open court, with reporters and other observers watching, it would look like a sentencing hearing before anybody has been convicted.
He doesn’t oppose the idea of making a video, saying it’s better for the jury. But if it’s done, he said it should be done in closed session with the accused present and the public excluded from the court. The alleged terrorists would be there, according to both sides under the U.S. due process right to confront witnesses.
“It’s an issue that everyone has known is going to happen because so much time has passed since Sept. 11, 2001,” Harrington said. “But why do you schedule it a month before the presidential election? It’s out of sequence. It’s out of the normal course of events.”
The chief prosecutor, Army Brig Gen. Mark Martins, was in Washington, D.C., this week preparing for a hearing before another military panel in another al-Qaida death-penalty case. But he said by phone on Memorial Day weekend, “We don’t consider politics or political calendars in seeking legal relief.”
His team’s 15-page legal motion seeking permission to take the testimony said it would put on some victim testimony during the trial itself, not just during the sentencing phase if Mohammed and his four alleged co-conspirators are convicted of murder, terrorism and other crimes.
The first sign that prosecutors were worrying about the longevity of some of their witnesses came in court in February when prosecutor Clay Trivett was discussing with the judge how to handle the declassification of over-classified secret documents during trial preparation.
“We hope to get the case done during the lives of living men,” said Trivett, who has been on the case since 2007.
A court filing by lawyers for Mohammed and alleged 9/11 conspirator Ammar al Baluchi ridiculed the current concept.
“The government’s motion is not an act of compassion toward victims, but rather an attempt to elicit victim impact testimony in advance of the trial,” they wrote in a 17-page response brief. “Like the Red Queen, the government seeks, ‘Sentence first — verdict afterward.’ ”
“If the government seeks to move toward trial, it should call off its investigations of defense team members, stop destroying evidence favorable to the defense, and revise its strategy of denying, delaying, and degrading the production of discovery.”
Former Guantánamo prosecutor settles free-speech lawsuit
The Library of Congress has agreed to pay a former military prosecutor $100,000 and change his personnel records to resolve his complaint that he was fired improperly for criticizing the military commission process for terrorism suspects at Guantánamo Bay, Cuba.
Retired Air Force Col. Morris Davis served as the chief military prosecutor at Guantánamo from 2005 to 2007 and became a vocal critic of the process there after he left the military in 2008. He was fired from his job as an assistant director at the Library of Congress’ Congressional Research Service in 2009 after his criticism of the military commissions was published in The Wall Street Journal and The Washington Post.
At the time, Davis’ supervisor said his positions on Guantánamo compromised his ability to carry out his job at the Congressional Research Service, which provides expertise and research to members of Congress on news developments and legislative issues.
Davis sued, saying his dismissal violated his First Amendment rights to free speech. In a filing on his behalf, the American Civil Liberties Union argued that Davis’ role at the research service was unrelated to his opinions on Guantánamo and he had the right to express his opinion as a private individual.
On Tuesday, Davis announced that he had reached an agreement, and the ACLU said it was requesting that Davis’ lawsuit be dismissed.
Under the terms of the agreement, Davis will receive $100,000 and his employment record will be corrected to show that he was not terminated for cause, a statement from the ACLU said.