The 9/11 trial judge has agreed to hear and preserve testimony from the father of two New York rescue workers killed at the World Trade Center and from a woman whose husband was aboard the plane that crashed into the Pentagon on Sept. 11, 2001.
But Army Col. James L. Pohl, the judge, rebuffed a prosecution request to take the depositions at Guantánamo Bay before the presidential elections.
Instead, Pohl wrote in a seven-page decision Sunday, he’ll preside at the video depositions Dec. 5-9 near Washington, D.C., according to attorneys who read it, in place of a scheduled pretrial hearing at Camp Justice.
Pohl has not set a date for the Sept. 11 mass-murder trial of five men accused of plotting the attacks that killed 2,976 people. He is still hearing pretrial motions that map out how to try such a complex national security case, and jury selection is likely years away. Meantime, prosecutors fear some possible witnesses will be dead by the time a verdict is reached.
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So prosecutors proposed bringing 10 sick or elderly relatives of people killed in the terror attacks to Guantánamo in October and recording their testimony, with accused mastermind Khalid Sheik Mohammed and his four alleged accomplices watching, as well as the public on the court’s 40-second delay. The idea was to mostly preserve so-called “victim impact statements” for use later if the accused terrorists are convicted.
Defense lawyers, who generally criticize secrecy in the war court proceedings, protested a pre-trial public airing of the testimony as contrary to U.S. criminal law practice. They enlisted the support of some relatives of people who were killed on 9/11 to oppose what defense attorney Walter Ruiz called in court on May 31 a “public spectacle not contemplated by the rules.”
The ruling itself was under seal Tuesday at the war court, pending a scrub of information that U.S. intelligence analysts believe the public should not be allowed to know, a process that could prevent its release into August.
But those who read it said that Pohl agreed to preserve video testimony of two victim family members: One is John Vigiano, 77, a retired firefighter whose sons Joseph and John were killed in New York that day. John Vigiano Jr. was a New York City firefighter. His younger brother Joe was an NYPD detective. The other is Rosemary Dillard, 68, whose husband Eddie was killed aboard American Airlines Flight 77, which struck the Pentagon.
Prosecutors wrote in an April court filing that Vigiano has throat cancer and Dillard “suffers from severe diabetes.” Both have visited Guantánamo Bay to watch war court proceedings in the Sept. 11 case.
Judge Pohl heard arguments on the issue on Memorial Day. He questioned whether it really would have to take place in open court, or even at Guantánamo Bay. Prosecutor Ed Ryan replied that according to his interpretation, war court rules mandate it. “It is our strong request to you that it do take place down here and the accused be required to sit in,” he said.
Ryan gestured toward alleged mastermind Khalid Sheik Mohammed and two other defendants who came to court and said that the terrorists who orchestrated “one of the most infamous crimes in history” did it while the “whole world was watching.” So he said the testimony should be taken publicly, too.
The idea struck a nerve among some members of the uncounted community of relatives of the 2,976 people who were murdered on Sept. 11, 2001. Five 9/11 family members, aged 53 to 84, signed affidavits opposing the idea as “premature” before conviction.
The eldest among them was Rita Lasar, whose brother Abraham Zelmanowitz died staying with a quadriplegic colleague at the World Trade Center rather than flee. Tuesday, she declared herself relieved by the judge’s decision.
By phone from Manhattan, she called herself “appalled by the chutzpah of the prosecution,” accusing them of “wanting to stage a soap opera in open court.” Depositions in open court at Guantánamo, she said, would have “exposed family members, who after 15 years are still grieving, whose nerves are still raw.”
Lasar, who has visited Guantánamo to observe the pretrial hearings, has said the five alleged 9/11 terrorists should be tried in federal court, not by the military commissions created by George W. Bush and reformed by Barack Obama.
Ryan said on Memorial Day that about 400 people have volunteered to be witnesses, though he expected that some would drop out. He didn’t rule out wanting to record more witnesses. The 10 proposed video witnesses “are truly the innocents in this whole event,” he said. He asked that their “voices be heard and preserved.”
Something about what he said caused the accused terrorist, known as KSM, to interrupt the proceedings. “He needs to know that this is a nuclear bomb in the world,” Mohammed said then before the judge shouted him down.
The first sign that prosecutors were worrying about the longevity of some of their witnesses came in court in February when prosecutor Clay Trivett was discussing with the judge how to handle the declassification of over-classified secret documents during trial preparation.
“We hope to get the case done during the lives of living men,” said Trivett, who has been on the case since 2007.
A court filing by lawyers for Mohammed and alleged 9/11 conspirator Ammar al Baluchi ridiculed the current concept.
“The government’s motion is not an act of compassion toward victims, but rather an attempt to elicit victim impact testimony in advance of the trial,” they wrote in a 17-page response brief. “Like the Red Queen, the government seeks, ‘Sentence first — verdict afterward.’ ”
“If the government seeks to move toward trial, it should call off its investigations of defense team members, stop destroying evidence favorable to the defense, and revise its strategy of denying, delaying, and degrading the production of discovery.”