The 9/11 case judge canceled this week's pretrial hearing at Guantánamo because of ongoing back and forth between Department of Justice special prosecutors and lawyers for an accused terrorist over a conflict of interest question at the death-penalty tribunal, lawyers who read the judge’s order said Wednesday.
Army Col. James L. Pohl wrote in his order canceling this week’s hearing scheduled for Thursday and Friday that it would not be productive to hold the session, according to those who read it. It was to be the only session of the war court this month and would have involved mounting a special trip for Pentagon staff and attorneys to the remote U.S. Navy base, and opening the maximum-security courtroom at Camp Justice.
Progress in the case has mostly been paralyzed since an attorney for accused 9/11 plot deputy Ramzi bin al Shibh told Pohl in April that FBI agents had compromised his team by questioning a member, and then trying to turn him into a secret informant. Other Sept. 11 defense team members alleged that their attorney-client privilege may also have been compromised by what the FBI agents were investigating, too.
A special Justice Department prosecution team has told the judge that the probe is now closed, that information was forwarded to a Department of Defense security team and, from what they’ve seen of the FBI activity, no conflict-of-interest exists.
Pohl tried to remedy it over the summer by severing Bin al Shibh from the five-man death penalty trial and planning to proceed with a four-man trial of alleged mastermind Khalid Sheik Mohammed and three other accused accomplices. The Pentagon prosecutors objected, however, and the judge reinstated the joint five-man prosecution at the last hearing in August.
Pohl’s order seeks a filing from the defense lawyers. “It was clear that there’s more information on the investigation yet to come and any litigation on this topic would be premature and unproductive,” said defense attorney Cheryl Bormann, the lawyer for alleged Sept. 11 conspirator Walid bin Attash.
Justice Department spokesmen and the Pentagon spokesman who represents the case prosecutors did not respond to requests for an explanation. Pohl canceled the session before the long Columbus Day weekend.
The court was last open on Sept. 15, when a Navy judge held a 64-minute hearing that focused mostly on representational issues in the case of a different accused war criminal, Hadi al Iraqi. A Pentagon spokesman put the price-tag on the session at $147,325. That broke down to $133,333 for the flights and $13,992 in temporary deployment costs for about 90 Pentagon employees or contractors.
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