The judge in the Sept. 11 terror case said in court Monday that he would order Secretary of Defense Jim Mattis to explain in writing why he suddenly fired the top official overseeing the war court.
Defense attorneys in the case are calling the dismissal foul play, in part because some had been hopeful of negotiating a deal in the death-penalty case with Harvey Rishikof, a Mattis appointee who until Feb. 5 served as Convening Authority for Military Commissions. The judge, Army Col. James L. Pohl, quoted a prosecution filing that has not been made public as characterizing as “innocuous” the reasons for the firings of Rishikof and his legal adviser, Gary Brown.
“We simply need to know why they were terminated,” Pohl said. “If it’s for an innocuous reason, which the government alleges it could have been, the issue may go away; if it’s for something else, it may not go away.”
Pohl is presiding in the case of the five men accused of directing or helping the 19 hijackers who crashed four commercial airliners in New York, at the Pentagon and in a Pennsylvania field on Sept. 11, 2001, killing 2,976 people. Four lawyers have held the title of Convening Authority or Acting Convening Authority since the alleged plot mastermind, Khalid Sheik Mohammed, and four accused co-conspirators were arraigned in May 2012. Only Rishikof was fired.
Pohl announced that he would issue the order in writing this week and set a March 19 deadline for a written declaration by Mattis and another by Acting Department of Defense General Counsel William S. Castle explaining the “facts and circumstances” of the firings.
Wednesday, Pentagon spokesman Tom Crosson said the government “will file sworn, written declarations from the Secretary of Defense and the Acting General Counsel with the commission and the defense no later than March 19.”
On Sunday, defense attorney Jay Connell called the firings a “coordinated decapitation of the leadership of the Office of Military Commissions.” He represents Ammar al Baluchi, the nephew of Mohammed.
Connell filed a pleading on Feb. 23, asking Pohl to dismiss the case over the firings on grounds of “unlawful influence,” an expression that means government or political interference. Prosecutors apparently argued that the issue should not go forward because of insufficient evidence to make that allegation; defense lawyers asked prosecutors to get them some.
Instead, Pohl decided he would get the issue started by ordering the two senior leaders to submit declarations.
Pohl noted that there is no public explanation for the firings. A Crosson said Feb. 6 that the Department of Defense “does not discuss personnel actions.” He added, however, “I can confirm that the Department has not initiated nor is it aware of any investigation involving Mr. Rishikof or Mr. Brown.”
Mattis appointed Rishikof and had the unique authority to fire him. Brown, as Legal Adviser for Military Commissions, was fired by the top lawyer at the Pentagon because the Office of the General Counsel handled his hiring. Neither man has responded to repeated requests by the Herald to explain what happened.
Separately, the judge noted that now that Rishikof and Brown are “private citizens,” he was inviting, not ordering, them to submit their own declarations, explaining their versions of events.
Pohl has demonstrated his willingness to confront senior leaders. In 2004, for example, when President George W. Bush proposed razing Iraq’s Abu Ghraib prison, Pohl declared it a crime scene and forbade its demolition. Pohl was handling the court martial cases of U.S. soldiers accused of abusing Iraqi detainees at Abu Ghraib.
He said he considered the declarations “simply the first step” toward sorting out the question of why the men were fired. He said he may need to get more evidence, including calling witnesses.
Documents obtained by the Miami Herald showed that Mattis signed the document doing this on a Saturday, Feb. 3, although the Pentagon said Rishikof was notified that he had been fired two days later, on Monday, Feb. 5.
Mattis appointed a 37-year career Department of Defense lawyer, retired Army Col. Jim Coyne, as acting convening authority while handling his full-time job as general counsel of the Defense Logistics Agency.
Pohl disclosed at the opening of this week’s hearing that he and Coyne were “essentially peers” years ago, as they both served as Army Judge Advocates General about 13 years ago.
Pohl said it is possible that they both attended a common colleague’s retirement ceremony in the intervening years but they have never discussed the Sept. 11 case.
“We don’t exchange Christmas cards,” the judge said, trying to characterize the distant nature of their past relationship.
Brown’s role has been replaced by two lawyers who served on his staff, also on an acting basis.
After court, Connell praised the judge’s decision, which ignored an argument by the prosecution that defense lawyers had insufficient evidence to seek information about the firings. “I’m totally happy. It saves us two months of screwing around.”
He said he was “hopeful” that Brown and Rishikof will “want to tell their side of the story.” Connell said firing Rishikof as some sort of criticism of his performance as Convening Authority” would amount to unlawful influence because “he’s supposed to be independent like a judge.”
A remedy that returned Rishikof to the job could be complicated, Connell said, because he might be chastened as a result of his firing or angry about it.
Editor’s note: An earlier version of this story gave the wrong date for the judge’s deadline for the Pentagon officials to submit the statements. It is March 19.