The judge in the Sept. 11 trial ordered the Pentagon's top lawyer and the fired Guantánamo war court overseer on Wednesday to testify in July in a defense bid to get the death-penalty case dismissed for alleged outside meddling by Defense Secretary Jim Mattis.
At issue is whether Mattis' surprise firing on Feb. 5 of Harvey Rishikof, the civilian attorney overseeing the Guantánamo war court, was tied to Rishikof's exploration of guilty pleas as a way of concluding the long-running trial.
Were the judge to find the firing was related to unlawful influence, he could dismiss the case entirely or take the death penalty out of consideration for the jury.
Five men accused of training, financing and directing the 19 hijackers who killed 2,976 people on Sept. 11, 2001 have been in pretrial proceedings since 2012. Progress toward trial has been complicated by the alleged terrorists' years in the CIA's Black Sites, and how much national-security evidence defense lawyers can get from prosecutors about their torture in spy agency custody.
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Mattis said in an affidavit that he fired Rishikof, whom he appointed as convening authority for military commissions in April 2017, on the advice of Defense Department acting general counsel William Castle, because Rishikof failed to follow proper Pentagon channels, a taboo in a military culture that reveres the chain of command.
Mattis, a retired Marine general, cited two specific episodes: In one, Rishikof asked the Coast Guard to make aerial photos of Guantánamo's war court compound, Camp Justice — after the admiral in charge of the U.S. Southern Command had already spurned the request. Rishikof told the judge that congressional staffers had asked for new photos while deciding whether to support an expansion of Camp Justice.
In the other, Rishikof wrote a memo on Dec. 13, 2017 that sought to consolidate the authority of his office and assume some responsibilities currently handled by the war court prosecution. Rishikof called it an efficiency move. That memo also proposed seeking guilty pleas rather than trials to resolve war court cases, according to Jay Connell, a defense lawyer for one of the accused 9/11 plotters.
That memo was a basis for Connell to seek testimony from Rishikof and Castle.
The judge, Army Col. James L. Pohl, ordered Castle and Rishikof to testify the week of July 23 after the war court's Ramadan recess, according to two attorneys who saw the order, which was not immediately posted on the Pentagon's war court website.
Pohl also ordered the Pentagon to provide the job descriptions of Rishikof and his legal adviser, Gary Brown, who was also fired and the Dec. 13, 2017 memo that supposedly discussed proposing guilty pleas as well as three other documents related to Rishikof's job.
During a May hearing, Pohl openly wondered whether, as a Pentagon appointee, Rishikof served at the pleasure of the secretary of defense or, because there was no time-limit on his hiring, it was a lifetime appointment "absent personal misconduct," like a federal judge.
The judge did not agree to call Navy Adm. Kurt Tidd, the commander who supposedly rebuffed Rishikof's request for fresh aerial imagery of the war court compound.
Pohl is also separately considering another unlawful influence motion that seeks dismissal of the 9/11 case over President Donald Trump's tweets disrespecting military justice as well as advocating execution of a terror suspect who hadn't been charged.