The chief war crimes prosecutor is proposing to start jury selection in the Sept. 11 trial in March 2018, a date that defense lawyers said Tuesday was too soon.
“I think they are hopelessly optimistic in putting out that date,” said Jay Connell, defense attorney for defendant Ammar al Baluchi, the nephew of the alleged 9/11 plot mastermind, Khalid Sheik Mohammed. He and other defense attorneys said Tuesday that the prosecution and judge have not given them the bulk of the national security information they need to prepare for trial.
Miami Herald Guide to Guantánamo’s Sept. 11 death-penalty trial.
Army Brig. Gen. Mark Martins told reporters Monday night that he has filed the proposed timetable with the court to start picking the U.S. military officers as jurors in the tribunal of Mohammed and four alleged conspirators. Once chosen, he said, he expects prosecutors to present their case in six to eight weeks.
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The timetable filing was still being reviewed by security officials, and unavailable to the public. But Connell said that perhaps Martins proposed it to “justify the military commission process to the new administration.”
Five men are accused of conspiring in the Sept. 11, 2001 attacks that killed nearly 3,000 people in New York, at the Pentagon and in a Pennsylvania field. They were formally charged May 5, 2012 but progress has been slow as lawyers and the judge navigate national security issues for men who were disappeared for three and four years into the CIA’s secret prison network, the Black Sites.
Martins’ counterpart, chief defense counsel Marine Brig. Gen. John Baker likewise called the timetable “unrealistic.” Baker, who is responsible for getting resources for his defense teams, has been seeking more staff, including five additional death-penalty lawyers to prepare for trial.
But it was unclear whether the Office of Military Commissions would be allowed to fill approved positions. President Donald Trump on Monday issued a directive imposing a federal hiring freeze on most non-national security jobs.
The need for a second death-penalty defense counsel on each of the cases was brought into sharp relief this week after one of them broke her arm, requiring surgery, and was unable to make the trip from Washington, D.C. The first war court hearings of the Trump administration open Wednesday with the judge deciding whether one of the accused, Walid bin Attash, can voluntarily agree to go forward with this week’s hearings without his so-called learned counsel, Cheryl Bormann.
News of the proposed timetable also comes days after the trial judge Army Col. James L. Pohl wrote a blistering decision about lack of logistical preparation at Guantánamo for a trial involving what Obama administration officials called “the crime of the century.” It was still under seal at the war court, but the Herald obtained a few portions.
At issue in that instance was an as-yet unexplained decision at this remote Navy base in Cuba to cancel all 2017 reservations for temporary base housing for visiting war court staff, including at the officers’ quarters where the judge and his staff have been housed for years.
Some war court visitors, including generals Martins and Baker, stay in a trailer park at Camp Justice that is not controlled by the base. But some officers and civilians expected to argue in court have traditionally been able to book into hotel-style base housing.
“Although at first blush this might appear to be a trivial issue to those observing the commission process from the outside,” Pohl wrote in his order involving housing, “it is yet another example of how commission proceedings are slowed or halted by external forces making decisions without a full appreciation of the consequences those decisions have on the commissions. Such ad hoc decision making goes to the very integrity of trial process.”
He added: “The commission recognizes that sometimes individuals must live in austere conditions to support the mission. But that is not the case here. The commission is convened at [Guantánamo], an active and relatively modern U.S. Navy base in existence since 1903. The commission is not convened in Iraq, Afghanistan or the Horn of Africa where the U.S. presence is truly expeditionary.”
Attorney Jim Harrington, defending Yemeni Ramzi bin al Shibh, an alleged Sept. 11 plot deputy, called the March 2018 start date “not conceivable.” He said housing and inadequate office space were just two issues hobbling trial preparation.
“We haven’t even begun to scratch the surface yet on receiving classified information,” Harrington added. Once the prosecution and judge turn over the evidence they believe the defense attorneys should get, defense teams would then turn in earnest to translation, investigation and requests for additional evidence, he said.
Rather, he said, “I think 2020 is a more realistic year to start.”