Pentagon appeals panel overrules Guantánamo judge, reinstates two 9/11 trial charges

Smoke billows from one of the towers of the World Trade Center and flames and debris explode from the second tower, Tuesday, Sept. 11, 2001.
Smoke billows from one of the towers of the World Trade Center and flames and debris explode from the second tower, Tuesday, Sept. 11, 2001. ASSOCIATED PRESS

A war court appeals panel overruled the Sept. 11 trial judge on a statute of limitations question Thursday and reinstated two non-capital charges to the death-penalty case — attacking civilian objects and destruction of property.

“During hostilities, a statute of limitations applying a time limit to prosecute law of war violations is not practicable,” a three-judge panel of the U.S. Court of Military Commissions Review wrote, according to a lawyer who was given a copy of the decision.

The 29-page decision — “Court Grants Government Request to Reinstate Charges III and V” — was listed in a docket entry at the Pentagon’s war court website but was unavailable to the public.

The trial judge, Army Col. James L. Pohl, dismissed the charges April 7, ruling that the five-year statute of limitations had run out on those two charges against the alleged 9/11 attacks mastermind Khalid Sheik Mohammed and four other alleged conspirators in the hijackings that killed nearly 3,000 people on Sept. 11, 2001.

Far more serious, capital charges of committing murder in violation of the law of war, terrorism and others had remained. But the chief prosecutor, Army Brig. Gen. Mark Martins, appealed to reinstate the two lesser charges.

Miami Herald Sept. 11 Trial Guide

The mixed military and civilian Pentagon appeals panel issued the order on Thursday, without hearing arguments and despite a bid by Mohammed’s lawyers to freeze the question until a higher court considered whether to disqualify civilian panel member Scott Silliman.

Mohammed’s lawyers had asked the civilian U.S. Court of Appeals for the District of Columbia Circuit to disqualify Silliman, a Duke law professor, because, among other things, Silliman hosted Martins at Duke in a March 2013 Ethics and National Security conference. Silliman had already joined the court by that time.

Mohammed’s lawyers also asked the circuit court to order the war court review panel to delay deciding the statute of limitations question while the circuit court considered a request for a writ of mandamus. The U.S. Court of Appeals had instructed the Justice Department to file pleadings by July 3, but the Court of Military Commissions Review ruled in the meantime.

Attorney Alka Pradhan, representing Mohammed’s nephew, Ammar al Baluchi, said the review panel got it wrong. The decision, she said, “contradicts the United States’ own position — over decades since World War II — on the applicable statutes of limitations to certain law of war violations.”

Prosecutor Martins explained the development this way, in a statement:

“The military judge had ruled that Section 950t of the Military Commissions Act, which permits trial of offenses ‘at any time without limitation,’ was an Ex Post Facto law. The USCMCR disagreed, stating that Congress in the 2006 and 2009 Military Commissions Act had codified existing law — by which time limits upon bringing prosecutions for war crimes were not practicable — rather than created new law.”

Carol Rosenberg: 305-376-3179, @carolrosenberg