People wondering when the 9/11 terror trial will actually begin got a new, if somewhat mysterious, metric from the military judge Monday.
Army Col. James L. Pohl, the judge, said prosecutors have presented him with about 50 percent of the evidence they believe defense lawyers should get about the CIA’s now defunct secret prison program — and he’s sent “virtually all” of it back to the prosecution team as inadequate, requiring fixes.
The format for the national security court seeking to execute the five alleged architects of the 9/11 attacks permits the prosecution to shield certain information from defense lawyers. Instead they can provided redacted documents or summaries of evidence, if the judge authorizes it.
The chief prosecutor, Brig. Gen. Mark Martins, compares the system to the Classified Information Procedures Act in federal court. Martins has publicly pledged to get all the evidence to either the judge or defense attorneys by Sept. 30. After that, defense lawyers say, they will litigate for more information they want the udge to order the U.S. government to give them.
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But at the war court Monday, Pohl announced that he’s not been satisfied with the proposed prosecution evidence. He said he has sent most of the documents on the CIA ‘black site’ program with handwritten notes to Martins’ team for more work. He did not specify how many pages or documents he has reviewed, but defense lawyers argue they are entitled to millions of pages — while the prosecution argues it can eliminate information it considers “cumulative.”
Defense attorney Jay Connell said after court Monday that, based on the CIPA-style system, the judge’s remark probably means one of two things: Original documents were over-redacted, requiring more transparency of what’s been blacked out. Or documents the prosecutors crafted as substitutions for evidence are too skimpy, don’t meaningfully represent the underlying evidence.
The rejection rate “says a lot about the quality of the substitutions he’s getting that he has to send it back,” Connell said.
There is, however, one known prosecution substitution for black site evidence that passed Pohl’s test: Case defense attorneys said Sunday that the prosecution has presented them with Top Secret photographs and diagrams of a former CIA black site — in an unknown country — that Pohl then allowed the U.S. government to “decommission” at a time when the attorneys thought a protective order was in place.
The lawyers want Pohl to disqualify himself and the prosecution from serving on the Sept. 11 mass murder trial because they call it clandestine destruction of evidence. The judge last week ruled he was qualified to decide the disqualification issue, which could be argued when the sides all meet again at the war court in October.
Lawyers for alleged mastermind Khalid Sheik Mohammed and four accused accomplices want graphic details of what went on in the spy agency’s clandestine prison network that hid the alleged terrorists from U.S. courts and the International Red Cross from 2002 to late 2006.
These were the places where CIA agents kept their captives naked, or in diapers, waterboarded some, rectally abused others, used cramped confinement boxes and hot and cold temperatures to break the men in their pursuit of al-Qaida secrets — techniques that the so-called Senate Torture Report concluded was mostly ineffective.
Defense lawyers call the details necessary first to challenge any confessions the men gave once they got to Guantánamo about their roles in the hijackings that killed nearly 3,000 people on Sept. 11, 2001. Later, if the al-Qaida captives are convicted of the conspiracy, the lawyers want to argue that the United States lost the moral authority to execute them.