Defense lawyers: U.S. leaders’ prejudice taints Sept. 11 death-penalty trial

Khalid Sheik Mohammed poses for the International Committee of the Red Cross (ICRC) at at the U.S. Navy Base in Guantánamo Bay, Cuba, in this undated photo.
Khalid Sheik Mohammed poses for the International Committee of the Red Cross (ICRC) at at the U.S. Navy Base in Guantánamo Bay, Cuba, in this undated photo. AP

The U.S. Marine lawyer defending the accused 9/11 mastermind said Friday that America’s political and military leadership had so thoroughly prejudiced the case that nothing short of abandoning the death penalty could cure the taint.

“This case here will likely be cited for decades to come as a vivid example of what is or is not acceptable in military justice,” said Marine Maj. Derek Poteet, the Pentagon-appointed defense attorney for Khalid Sheik Mohammed.

He accused “the entire national security apparatus” of announcing the inevitable conviction and execution of Mohammed as the man — who in 2007 boasted to a military panel that he ran 9/11 “from A to Z” — sat silently, clad in white gown and turban. It was Friday, Islam’s sabbath, and Mohammed, 50, wasn’t wearing his typical camouflage jacket to court.

This is the

Retried Army Col. Robert Swann,

The argument appeared to infuriate case prosecutor Robert Swann. He invoked the inferno of the World Trade Center, the orphans of Sept. 11 and the 2,976 “heroes” killed that day, and he told the judge there was no unlawful political or military meddling in this case.

“Accountability for Sept. 11, 2001, will be decided in this room, not from outside participants. These men are presumed innocent until guilt is established by legal and competent evidence beyond reasonable doubt,” said Swann.

He also labeled as “unfortunate” a comment made by former Attorney General Eric Holder, who said that had the case been tried in federal court, the men would already be on Death Row. Swann said that Holder’s remarks, and those of two commanders-in-chief about Mohammed’s eventual conviction and execution, had “no significance in this room.”

87 Number of binders of Top Secret evidence prosecutors are preparing for the judge to get by Sept. 30, 2016 in substitution process

But the accountability portion isn’t expected to start any time soon. A prosecutor said in court his team hoped to release all relevant evidence by Sept. 30, 2016. Some will go to defense lawyers and separately the judge will get 87 binders of national security information that the defenders can’t see and will require tailored substitutes.

Two of the accused terrorists’ lawyers predicted at least five more years of litigation in the case. That time-line would start the trial nearly 20 years after the 9/11 attacks. “I’m not going to get into timelines,” responded the chief prosecutor, Army Brig. Gen. Mark Martins, declaring it a “sharply adversarial process.”

Defense attorneys for all five men facing a joint trial on charges stemming from the worst terror attack on U.S. soil were arguing an all-encompassing motion that public remarks by Presidents George W. Bush and Barack Obama, and others, as well as Pentagon and U.S. intelligence interference in the defense privilege amounted to unlawful influence.

It is an unforgivable sin in U.S. military justice, so much so that the law allows judges to offer a remedy to even an appearance of the taint.

This case here will likely be cited for decades to come as a vivid example of what is or is not acceptable in military justice.

Marine Maj. Derek Poteet, alleged mastermind’s defender

Attorney Walter Ruiz, defending an alleged money man in the Sept. 11 plot, spent a chunk of Thursday laying out a long list of complaints: Remarks by Bush and Obama that the men were guilty and would die; refusal by a Pentagon official to initially resource Pentagon-paid defense attorneys for a death-penalty case; the CIA’s use of a remote control mute button in the court; and troops mishandling privileged attorney-client communication.

Ruiz, like the others, sought dismissal of the case. Absent that, he asked Army Col. James L. Pohl, the judge, to strike the death penalty and let his client, Mustafa al Hawsawi, 47, get a separate trial. Ruiz says that Hawsawi, who was captured with Mohammed and tortured in CIA black sites, deserved not to have the taint by association with the man.

Swann, a retired Army colonel, described the argument as a product of the imaginations of defense attorneys in the case, both U.S. military officers and civilians. He added that President Bush only spoke publicly about the guilt of Mohammed after he and co-defendant Ramzi bin al Shibh, 43, still free, did a television interview claiming credit for the attack just ahead of the first anniversary of the crime.

He called the list in the unlawful influence motion “baseless claims” and “talking points” that don't deserve “the oxygen of publicity.”

A standard for unlawful influence was set in the U.S. Army court martial of Lt. William Calley for the 1968 My Lai massacre in Vietnam. Had President Richard Nixon said Calley would be executed, Poteet said, “the case would’ve been dismissed.”

Judge Pohl at one point raised severing the Sept. 11 case, giving at least some of the five men separate trials. Prosecutors oppose it, in part, to spare the families of those killed more than one trial.

“This is the 9/11 Shura Council,” Swann replied, casting them as an al-Qaida parliament.

The charges give the five men differing roles in the plot. Bin al Shibh and Walid bin Attash, 37, are alleged deputies to Mohammed while Hawsawi and Mohammed’s nephew, Ammar al Baluchi, 38, are described more as facilitators on the 19 hijackers’ travel and funds.

Carol Rosenberg: 305-376-3179, @carolrosenberg