The lawyer for the alleged mastermind of the Sept. 11 terror attacks asked the Army trial judge on Friday to fire the prosecution and step down over a secret decision to destroy a CIA prison, and then provide defense attorneys with a partial forensic record as a flawed substitute.
“You heard them out in secret,” said David Nevin, the death-penalty defender for Khalid Sheik Mohammed. “You did not follow the rules when you approved a substitution for a substitution of this evidence. There is no such thing as a substitution for a substitution.”
Moreover, he added: “You don’t have a right to give them permission to destroy evidence.” And even though the judge ordered defense attorneys be told, prosecutors went ahead with the “decommissioning” of a so-called Black Site without notifying the alleged terrorists’ lawyers.
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“No one violated any rules here. They just don’t like the rules,” prosecutor Bob Swann replied. A U.S. District Court had earlier approved the destruction of a former prison — possibly the same one — and use of 360-degree FBI forensic photography instead, if needed in future habeas corpus cases.
When it’s not possible to bring physical evidence to court, lawyers bring pictures, videos, models, Swann told Army Col. James L. Pohl, the judge. “That’s what you did here.”
The court argument put in sharp relief the hybrid military-civilian war crimes court designed to try the five men accused of plotting the 9/11 attacks while shielding original evidence when the U.S. government declares national security is at stake.
With Pohl’s approval, Sept. 11prosecutors have so far provided defense attorneys with 13,346 pages of substitutes of actual evidence related to the CIA’s years of secret detention and interrogation of Mohammed and his four co-accused plotters. But the original evidence remains in a safe, available for appellate review.
At issue in the Black Site controversy is the failure of either the court or prosecutors to notify defense lawyers that, behind the scenes, Pohl had lifted a protective order to enable U.S. agents to dismantle the prison site. With advanced notice, Nevin said, he would have asked a federal court to block the destruction so defense lawyers could use it to argue that, because of Mohammed’s torture, he should not be executed.
The destroyed site was a rare remaining outpost in the spy agency’s worldwide network of secret prisons. There, from 2002 to 2006, agents kept their captives naked, or in diapers, waterboarded some, rectally abused others, used cramped confinement boxes and hot and cold temperatures to break the men in their pursuit of al-Qaida secrets — techniques that the Senate Torture Report mostly described as ineffective.
Nevin said habeas proceedings involving other Guantánamo detainees, who might have been kept in the site, are a different matter. “Life and death are at issue,” said Nevin, declaring the place absolute evidence of the torture Mohammed endured during his three and a-half years.
The five men are accused of directing, training, and handling financing and travel arrangements for the 19 hijackers who killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon. All five were voluntarily absent from court on Friday as attorneys laid out a chronology that one defense lawyer, Cheryl Bormann, called an effort to “hide, obfuscate and make excuses” about destruction without notice.
As it was explained in court this week, the prosecutors gave the judge’s office a copy of a June 2014 notice they thought the defense lawyers should get. But, the judge and prosecutors say, due to bureaucratic confusion, the judiciary and the prosecution each thought the other had done it.
In July 2014, attorney Jay Connell, representing Mohammed’s nephew, spotted something unusual in the trial filings’ inventory and began asking questions that went unanswered until December 2015. They got the actual notice in February 2016.
Throughout it all, defense lawyers say, they believed a protective order issued by Pohl in 2012 forbidding destruction of the remaining Black Sites was still controlling.
Moreover, Pohl told defense attorneys under questioning Thursday that he never saw the CIA prison before he was handed two videos — one for the appellate safe showing more of the site before it was destroyed, and the portion the defense lawyers would be entitled to see, and perhaps use at trial. He wouldn’t say in open court whether he knew where the prison was.