In rapid succession, the 9/11 trial judge recently issued three public rebukes to case prosecutors over their proposed secret handling of national security evidence, a window into behind-the-scenes activity that could complicate the prosecution’s proposed March 2018 trial date.
In one such ruling on Feb. 6, Army Col. James L. Pohl admonished prosecutors that a secret filing was “rife with misstatements and mistakes” — and that what prosecutors proposed disadvantages defense attorneys at the high-stakes death-penalty trial of five men accused of orchestrating the terror attacks that killed 2,976 people at the World Trade Center, Pentagon and a Pennsylvania field on Sept. 11, 2001.
Read the Guantánamo judge's rulings
At issue is the delicate balancing act military judges are playing in Guantánamo’s terrorism cases that seek the death penalty for men who were disappeared for years into the secret CIA prison network known as the Black Sites.
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The CIA and other intelligence agencies won’t let defense lawyers see certain classified evidence — for example, the places where the accused terrorists were held and interrogated. Nor will they furnish the identities of the staff who worked there, information the defenders want to challenge the death penalty.
So, under the system, the defense lawyers for the men accused of murder on behalf of al-Qaida secretly tell their judge their possible defense theories. Prosecutors then secretly show the judge evidence they want to deny the defense lawyers.
The judge studies the prosecution’s proposed substitutions, summaries or deletions of the actual evidence to decide whether the accused terrorists can get a fair trial.
Most of it is done in secret, in a system the war court has drawn from federal courts.
What is exceptional about the succession of rulings is they offer cryptic public findings on sealed prosecution filings that neither the public nor defense lawyers in the death-penalty case can see.
And they demonstrate unhappiness by Pohl, an Army colonel whose retirement has been postponed several times, over evidence provided by the team led by Army Brig. Gen. Mark Martins, who is seeking a career extension as chief prosecutor.
Sunday, on the eve of five weeks of pretrial hearings in several cases, Martins agreed that some of his staff filings were unsatisfactory but said he did not consider that a setback.
“We want our things to be as meticulous and perfect as they can be,” he said. “There’s a large volume of them, and those particular instances did not meet the standard that either the judge or I would set for them. We are resubmitting them. It is not a situation in which the denial of relief by the judge means we’re not going to be able to complete the discovery.”
In a Feb. 1 ruling, Pohl disclosed that prosecutors had included “numerous misrepresentations and mistakes” in a bid to shield certain information about staff at the CIA’s secret prison network from defense attorneys. The judge called it “more troublesome” that trial attorneys gave him “prepared synopses of documents in lieu of original documents,” something Pohl described as “an impossibility” under the law.
Miami criminal defense attorney Ken Swartz called that unthinkable. He has practiced in federal court under the Classified Procedures Information Act, the national security scheme the inventors of the Guantánamo war court used to craft the post- 9/11 tribunals. Not only would the judge need to see the actual evidence to decide what the defense attorneys see, Swartz said in an interview with the Herald, but he has to preserve it in case of a conviction.
“In the federal criminal court world that’s just not done,” Swartz said. “The judge has to see it. He doesn’t have to give it, and the defense may not see it. But it has to be part of the record.” The judge may also have to put something in the record on why he denied the original document “so there’s a basis to appeal.”
The chief prosecutor disagreed. Martins argued there are instances where a judge need not get the original.
Martins cited the 2006 federal court trial of would be “20th hijacker” Zacarias Moussaoui, the only person to be tried in an American courtroom in connection with the Sept. 11 attacks. Moussaoui is now serving life in prison. In that capital case, prosecutors gave defense lawyers substitutions for testimony from CIA captives, including from the alleged 9/11 plot mastermind Khalid Sheik Mohammed, based on interrogations from the Black Sites that the judge wasn’t allowed to see.
The “witnesses” were subsequently moved to Guantánamo for trials of their own. Nearly a decade later some details of what went on in the Black Sites were declassified in a 500-page portion of the 6,700-page Senate Torture Report.
Pohl began drawing back the curtain on the prosecution’s so-called ex-parte filings regarding evidence soon after prosecutors asked him to agree to begin the Sept. 11 trial with jury selection in March 2018. Their proposed trial schedule invoked the dying, elderly and infirm kin of the Sept. 11 victims, cited the “tremendous amount of formerly-classified material” made public in the Senate report.
It also declared “the United States is in compliance with its affirmative discovery obligations,” meaning prosecutors believed they’ve delivered to the judge or defense lawyers everything they need to prepare a defense.
Jay Connell, the death-penalty defender for accused 9/11 conspirator Ammar al Baluchi, said Pohl’s recent orders show “what was obvious to anyone who was watching the hearings: The government has not yet fulfilled its discovery obligations. It seems to be struggling to do so. It’s a long, slow and complicated process with a lot of actors involved.”
Martins said Sunday he still wants to start with jury selection in March 2018, and expects the judge will take up the question of scheduling later this month.
Moreover he said the back and forth with the judge, even those, unusually, made public are part of “an interactive process by design ... happening the way the law intends for it to happen.”
Pohl, the prosecutor said, is “still working through a lot of the material,” and “working through issues.” In unseen instances the judge is “approving our requests for substitutions and other relief. And we remain completely ready to comply with our discovery obligations.”
Attorney David Nevin, lead defense counsel for Mohammed, Baluchi’s uncle, ticks off a long list of obstacles to the 2018 trial date: It’s a capital case in “the largest criminal investigation in the history of the United States.” He claims his team is understaffed, under-resourced and overtaxed by having to litigate at Guantánamo, where office space is cramped and some staff get crude accommodations. Also, Nevin noted, the defendants are foreign-born, requiring far-flung preparation.
“Problems with discovery are part of the reason that it’s not ready for trial,” he said. “The discovery process is ongoing. There’s a lot of it, and the government is taking its time putting it through the substitution process.”
In a Jan. 27 ruling, for example, Pohl orders prosecutors to provide the defense attorneys with the entire “torture memos.” Those are the secret George W. Bush-era memos that considered the lawfulness of the program that interrogated CIA captives with brutal techniques that included waterboarding, sleep deprivation, dietary manipulation and stuffing captives in a coffin-like box to break them.
Prosecutors argued the defense teams don’t need the memos and have received enough information in other documents they voluntarily provided.
But Pohl ruled that the memos have a “unique character, provenance, and preeminence.” He ordered the prosecutors to turn them over. That doesn’t mean the public or even the accused terrorists will get to see them, just the military and civilians defense attorneys in the Sept. 11 case who, like the prosecution, have Top Secret security clearances.
Now the prosecution is invoking a national security exception, and balking at turning them over. Instead, Martins said Sunday, his team “will request substitutions for the memos.” Left unclear is whether those will be summaries or the memos themselves with blacked out portions in their bid to provide something less than the originals.
Under the U.S. law that created the war court, the alternative evidence must “provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific classified information.”
Working at Guantánamo is another complication.
The judge went ahead with Sept. 11 case hearings in January after the base commander canceled all the reservations for those entitled to hotel-style lodging. The skipper apparently concluded that everyone involved in the case could shelter at the trailer park and tent city adjacent to the war court compound called Camp Justice — something that was rectified swiftly with reinstatement of the guest quarters for the judge, his staff and certain lawyers.
But in a blistering ruling, Pohl described logistics as a potential problem for holding the high-stakes trial on the 45-square mile base of about 5,500 residents. U.S. Navy base Guantánamo, behind a minefield in southeastern Cuba, is essentially a small town with a golf course, K-12 school system, bars, drive-thru McDonald’s, suburban-style tract housing and an array of hotel-like accommodations.
“Although at first blush this might appear to be a trivial issue,” Pohl wrote, housing complications could go “to the very integrity of the trial process.” He added: “To have such tangential issues slow or delay the process is unacceptable.”
Pohl wrote that he “recognizes that individuals sometimes must live in austere conditions to support the mission. But that is not the case here.” He called the remote base in southeast Cuba “an active and relatively modern U.S. Navy base in existence since 1903” in contrast to “Iraq, Afghanistan or the Horn of Africa, where the U.S. presence is truly expeditionary.”