Guantánamo

Alleged 9/11 plotter’s lawyers ask prosecutor, judge to quit trial over destruction of evidence

In this photo of a sketch by courtroom artist Janet Hamlin and reviewed by the U.S. Department of Defense, Khalid Sheik Mohammed sits at a defense table wearing a camouflage vest in front of military judge U.S. Army Col. James Pohl, right, during a pretrial hearing at the U.S. Navy base at Guantánamo Bay Cuba on Oct. 17, 2012.
In this photo of a sketch by courtroom artist Janet Hamlin and reviewed by the U.S. Department of Defense, Khalid Sheik Mohammed sits at a defense table wearing a camouflage vest in front of military judge U.S. Army Col. James Pohl, right, during a pretrial hearing at the U.S. Navy base at Guantánamo Bay Cuba on Oct. 17, 2012. ASSOCIATED PRESS

Lawyers for the alleged mastermind of the Sept. 11 attacks, Khalid Sheik Mohammed, are asking the Pentagon prosecution team and the trial judge to step down, accusing them of involvement in the secret destruction of evidence in the death-penalty case.

Attorney David Nevin said by telephone Wednesday that under the rules of war court secrecy he cannot describe the evidence that was allegedly destroyed. He added that Mohammed’s defense team’s court filing on Tuesday seeking the recusal of the judge, Army Col. James L. Pohl, and the prosecution team led by Army Brig. Gen. Mark Martins, does not describe it.

“It was destroyed under circumstances where we were left with the impression, based on a ruling of the military judge, that the evidence would not be destroyed,” said Nevin.

Nevin would neither confirm nor deny that the lost evidence involved the CIA “Black Sites,” overseas prisons where the CIA held the alleged conspirators in the 9/11 terrorist attacks. In December 2013, Judge Pohl ordered the U.S. government to “ensure the preservation of any overseas detention facilities still within control of the United States unless otherwise ordered by this commission or other court of competent jurisdiction.”

‘The government has concluded that it will never reveal or confirm any of the classified overseas locations where the former CIA black sites existed.’

At the CIA Wednesday, the spokesman declined to say whether the U.S. had since 2014 dismantled whatever remnants were left of the detention facilities it used in its black site Rendition, Detention and Interrogation Program. “CIA has complied with all applicable preservation orders in this matter,” Dean Boyd, director of the agency’s Office of Public Affairs, told the Miami Herald.

Nevin and co-counsel Marine Maj. Derek Poteet described the “very troubling development” generically in a conference call with reporters following the filing of the motion asking the judge and prosecution to step down. They said were bound by rules of war court secrecy not to describe what was destroyed.

Poteet and Nevin said that defense lawyers were notified in February that the prosecution had — without notice to the defense — sought and got permission from Pohl to destroy something that the defense deemed “favorable evidence” for the accused.

The prosecutor, who has yet to respond to the defense filing, declined comment.

Separately, an attorney for 9/11 defendant Walid bin Attash, Michael Schwartz, told the Herald in late March that the Obama administration declassified the following Sept. 11 case statement: “The government has concluded that it will never reveal or confirm any of the classified overseas locations where the former CIA black sites existed.”

Mohammed and the four others are in pretrial proceedings at Guantánamo’s military commissions on charges of nearly 3,000 counts of murder and other war crimes as the alleged architects of the Sept. 11, 2001 hijackings. The five men got to the U.S. Navy base in Cuba in 2006 from up to four years at the CIA’s secret overseas prisons, whose locations and staff identities are still classified as state secrets.

Defense lawyers in the case have sought access to the sites, and other information about their CIA treatment to argue that, if convicted, the United States has lost the moral authority to execute men they waterboarded, subjected to sexual humiliation and other abuses.

But Walter Ruiz, the attorney for one of the alleged terrorists, Mustafa al Hawsawi, said Thursday that he had not joined with the portion of the motion that seeks “to remove the judge and prosecution as well as all the arguments alleging collusion.”

Instead, the lawyer for the man accused of helping the Sept. 11 hijackers with travel and money said his team would request “alternative relief.” He did not specify.

The judge, attorneys and accused are due at Guantánamo’s Camp Justice May 30 for a week of hearings.

Mohammed’s defense team filed its request that Pohl step down, AE425 on the war court website, on Tuesday —the same day lawyers for another 9/11 defendant, Ammar al Baluchi, filed a motion “for appropriate relief from government demand to destroy exculpatory evidence.” Mohammed’s motion asks that Pohl, chief of the war court judiciary, pick a new Sept. 11 trial judge by lottery, and that judge permanently abate the trial because of the destruction of evidence.

Nevin said the destroyed evidence “applies equally to every defendant” in the case.

The judge, attorneys and accused are due at Guantánamo’s Camp Justice May 30-June 3 for the resumption of pretrial hearings.

The five alleged plotters could face the death penalty if convicted, but the case has been bogged down in questions involving access to CIA evidence, the defendants’ treatment at a clandestine lockup at the U.S. Navy base in Cuba and alleged incursions into the attorney-client relationship in the national security case.

Carol Rosenberg: 305-376-3179, @carolrosenberg

See our Miami Herald Guide to the Sept. 11 trial at Guantánamo’s Camp Justice

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