Sept. 11 defense lawyers ask Army judge to disqualify Guantánamo war court overseer

An American flag on the Pentagon building at sunrise on Thursday, Sept. 11, 2014, near the site where the building was struck on 
An American flag on the Pentagon building at sunrise on Thursday, Sept. 11, 2014, near the site where the building was struck on 9/11. MCT

Defense lawyers in the Sept. 11 death-penalty case are asking their military judge to disqualify a senior Pentagon official and his staff from the case over a since abandoned effort to make the judges live permanently at Guantánamo.

The judge in Guantánamo’s other capital case, of the alleged USS Cole bombing mastermind, already disqualified retired Maj. Gen. Vaughn Ary and four legal advisors from that case earlier this month. No replacements have been named.

The USS Cole case judge, Air Force Col. Vance Spath, found Ary and his staff tried to unlawfully meddle in the war court judiciary by ordering Spath to drop his other duties and live at the remote base in southeast Cuba in the mistaken belief that relocation could rush justice.

Now, attorneys for the alleged 9/11 plot mastermind Khalid Sheik Mohammed and his four accused accomplices are asking their judge, Army Col. James L. Pohl, to do the same thing in a nine-page legal motion filed Wednesday.

The “Joint Defense Motion To Disqualify the Convening Authority Due to Unlawful Influence” was under seal on the war court docket undergoing a security scrub of what, if any, portions of the filing the public cannot see. It included 231 pages of attachments, much of it transcripts from Spath’s hearings.

Deputy Secretary of Defense Robert O. Work signed the new regulation at Ary’s behest on Jan. 7. But none of the three war court judges actually moved to Cuba — two are based on the East Coast, and one in Italy — because their commanders at the Army, Air Force and Navy never formally reassigned them.

Pohl, the Sept. 11 judge, next hears pretrial motions in the complex five-defendant conspiracy case April 20-24. No trial date has been set. Pohl earlier froze the proceedings over the move-in order, prompting Work to swiftly withdraw the regulation.

Defense lawyers called the move-in order illegal, a crime in military justice called “unlawful command influence.” They said reversal was an insufficient remedy and want Pohl to disqualify the same five people Spath disqualified in Nashiri — Ary, retired Army Col. Mark Toole, Army Reserves Lt. Col. Alyssa Adams, Navy Reserve Cmdr. Raghav Kotval, and Army Capt. Matthew Rich.

At the Pentagon Thursday, Army Lt. Col. Myles B. Caggins III said neither Work nor Secretary of Defense Ash Carter had appointed a replacement for Ary as the Cole case overseer, called convening authority.

A third judge, Navy Capt. J.K. Waits, is also considering the unlawful influence question at March 23-25 hearings in Guantánamo’s other active prosecution — the non-capital case against Abd al Hadi al Iraqi, accused of commanding al-Qaida forces in Afghanistan after the U.S. invasion.

That judge had also recently reversed himself and is now allowing female guards at Guantánamo’s clandestine Camp 7 prison to handle Hadi on the way to and from court and legal meetings.

Hadi’s lawyers call their client a traditional Muslim who believes that only close women relatives should touch him. They say Hadi has refused to come to meetings with them since Waits lifted his ban on female-guard touching.

At Congress Thursday, the general overseeing the Guantánamo detention center dismissed the religious accommodation request as the latest bogus complaint by detainees trying to manipulate the military guard force.

“Two years ago it was Quran desecration, which we don't do,” Marine Gen. John Kelly told Sen. Kelly Ayotte, R-N.H., at a hearing of the Senate Armed Services Committee.

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