Military judges have canceled three war court hearings in a row, effectively leaving Guantánamo’s Camp Justice dark for two months and signaling how much the war crimes cases are still a work in progress.
On Friday, according to attorneys who have seen the order, the Sept. 11 trial judge canceled hearings planned for April 20-24 at the war-court compound in Cuba. Army Col. James L. Pohl, the judge, cited a secret filing that day by a Justice Department team reporting to him about the circumstances of a supposedly since-closed FBI probe of defense attorneys.
Pohl also cited the case prosecutor’s continuing opposition to his judicial order separating defendant Ramzi bin al Shibh from the case to make progress toward the trials of the other four men.
Accused 9/11 mastermind Khalid Sheik Mohammed and his alleged accomplices were last in court February when hearings were disrupted by Bin al Shibh’s disclosure that a Pentagon-paid, defense interpreter had earlier worked for the CIA in their secret prison network, where the men were tortured.
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Their next hearing in the death-penalty case is scheduled for June 1-5.
The Pentagon prosecutor’s office wrote Sept. 11 victims and their families Monday that, although the news of another delay may be “frustrating for you to hear,” trial preparation was underway “in a deliberate and careful manner, affording the accused all the protections they are accorded under the law.”
The letter, obtained by the Herald, also defended the prosecution opposition to multiple trials “under the present circumstances” as sparing the victims of being exposed to “the long and difficult trial process twice.”
Progress has also been slowed while attorneys and the judge waited for release of a portion of the so-called Senate Torture Report that described in part what agents did to the five men in the CIA prison network between 2002 or 2003 and 2006.
Defense attorneys now want the rest of the report, which is classified. Prosecutors say they are studying it to decide which portions the defense lawyers should see.
Earlier, another judge, Air Force Col. Vance H. Spath, canceled this week’s pretrial hearing in the USS Cole case after prosecutors appealed his rejection of a prosecution theory in the case alleging “wanton disregard” for the safety of Yemeni port workers in Aden at the time of al-Qaida’s Oct. 12, 2000 suicide bombing. Seventeen U.S. sailors died in the attack and prosecutors want to bring witnesses that widen the victim pool beyond the American service members.
Prosecutors filed their appeal to a Pentagon panel whose makeup the Nashiri defense attorneys are challenging as illegitimate at a federal appeals court.
Spath last held court the first week in March in the case of Abd al Rahim al Nashiri, focusing on a since revoked order to force judges to move to Guantánamo permanently until they wrap up their trials. Spath ruled the order created an appearance of unlawful influence by suggesting the judges could be rushed to justice.
Nashiri is next due back at the court May 4-15 for more pretrial hearings.
Separately, the judge in the war court’s third case had earlier canceled pretrial hearings for an alleged al-Qaida commander, Abd al Hadi al Iraqi, that were scheduled for March 23-25.
That judge, Navy Capt. J.K. Waits, had been expected to hear defense lawyers argue that the government committed unlawful influence with the rescinded relocation order. But he canceled the hearings a day before the architect of the move-in order resigned, without explanation.
Waits is based in Italy and hears U.S. Marine Corps and Navy cases as a European and Middle East circuit judge when not at Guantánamo. Hadi’s case is still in the pretrial phase as lawyers haggle over what aspects of the law apply, what evidence an eventual jury will see, and Hadi’s circumstances of confinement. The Iraqi won, and then lost, a court order forbidding women guards to handle him, claiming a religious accommodation.
Hadi and Waits are due back at Camp Justice May 25-29.
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Letter to the 9/11 victims
“Although it is frustrating for you to hear that the commission proceedings are delayed, there is considerable and important work being done by the [Justice Department’s Special Review Team], prosecution, and defense to prepare the case in a deliberate and careful manner, affording the accused all the protections they are accorded under the law. We, the prosecution team, feel that severance of the case under the present circumstances is unacceptable. There are a number of reasons for this but certainly one is that it would delay the ultimate disposition of the entire matter and cause you, those most affected by these crimes, to have to go through the long and difficult trial process twice. It is possible we may have to make the decision to seek severance to achieve forward movement but as of now, we will continue to insist on a joint trial for these five accused.” ▪ April 7, 2015, the Pentagon Office of War Crimes Prosecution