In the latest episode of a now-you-see-it, now-you-don’t Guantánamo war court record, the judge in the Sept. 11 trial retroactively sealed what one prosecutor called “the misogynistic rantings” of an accused 9/11 plot deputy.
Also now under seal: A Nov. 17, 2014, note, seized by the military, from the alleged plot mastermind to another captive with advice on how to handle the female guard flap at the Pentagon’s most clandestine prison.
The decision to deny the public access to the documents — which for a time appeared illegibly in the court record — follows the Pentagon’s likewise blacking out wide swaths of a transcript of an open hearing on the same topic.
The latest episode occurred during recent pretrial hearings in the Sept. 11 case at the remote Navy base. A prosecutor referred to a March 2014 letter from alleged plot deputy Ramzi bin al Shibh to the then commander of the lockup, a female officer. A military lawyer for another accused deputy protested. Air Force Maj. Michael Schwartz called it “inflammatory, prejudicial” to his client, Walid bin Attash. He asked that it be stricken from the court record.
The judge, Army Col. James L. Pohl, expressed frustration at the notion of striking something from the record. “Transparency has always been the default of every case. But in this case in particular, I have sealed a number of things. There’s been classified documents, there’s been ex parte filings. It is a normal judicial process. I know there’s always a criticism that we invent the rules as we go along, and to a degree it’s a new statutory scheme, I’ve got that.”
Transparency has always been the default of every case.
Army Col. James L. Pohl, chief Guantánamo judge
Reporters scrambled to find the “inflammatory” document on the Pentagon’s war court website whose motto is “Fairness ☆ Transparency ☆ Justice” — only to realize it was there but not legible.
War court staff rebuffed requests for a clean copy, and then sealed it by order of the judge. Rather than strike it from the court record, Pohl wrote in a Dec. 14 order, he sealed it “to prevent prejudicial pretrial influence on potential panel members” while he decided its relevance.
Panel members are what the war court calls the jury of U.S. military officers who will someday sit in judgment at the death-penalty trial of Khalid Sheik Mohammed and four alleged co-conspirators in the Sept. 11, 2001, attacks that killed nearly 3,000 people in New York City, at the Pentagon and in Pennsylvania.
No trial date has been set, and the prosecution has said it will be delivering evidence to defense lawyers or to the judge through September 2016. It will then be the judge’s chore to see whether substitutions crafted by prosecutors, rather than original evidence, are representative enough to ensure the accused a fair trial. Some defense lawyers predicted the struggle for pretrial discovery could continue to 2020.
No trial date has been set for the Sept. 11 tribunal.
A Pentagon spokesman, Navy Cmdr. Gary Ross, said the after-the-fact sealing was likely unprecedented at the war court that President George W. Bush created and Barack Obama reformed.
“We cannot recall a similar incident where, at the request of the defense, the judge issued an interim sealing order pending the resolution of a motion,” Ross wrote to the Miami Herald.
In court, longtime case prosecutor Clay Trivett characterized the bin al Shibh letter as “misogynistic rantings.” Separately, a lieutenant colonel with the Massachusetts National Guard, a woman, said in an affidavit on file at the court that she got the letter titled, “There are the Rules for Female Guards in Camp 7, Echo, and the Courtroom,” while serving as an officer in charge of Camp 7, the secret lockup for former CIA captives.
The substance of the second sealed note — from Mohammed to fellow former CIA captive Abd al Hadi al Iraqi — is less clear. The former Camp 7 commander described that one as describing “how to litigate and possibly testify in the female guard motion.”
Bin al Shibh’s attorney, Jim Harrington, said in court without elaboration that he didn’t think the note was “relevant to the issue before the court” — a nearly year-old restraining order by the judge forbidding female guards from touching the captives as they are shackled and moved to and from legal meetings or court. The judge said, in considering whether to keep the order, he would accept that it was the captives’ sincerely held religious belief that they should not be touched by women other than close family.
The order itself has stirred anger in both political and Pentagon circles. Army Col. David Heath, who commands the guard force at Guantánamo, testified recently that he believed the captives created the religious objection to delay their death-penalty trial.
Harrington told the Herald later that his client’s note “fits in with a conservative view on how women dress and act.” Examples involve “not making eye contact and covering your face, the kind of things that are never going to happen in an American situation,” he added.