Sparring Over the 9/11 Trial Recusal Motion

Anyone who’s been following the military commission prosecution of the five alleged 9/11 plotters at Guantánamo Bay is likely familiar with some of the absurd happenings in the case. From the discoveries that attorney-client meeting rooms were wired for surveillance, that microphones in the courtroom could capture and record supposedly confidential attorney-client conversations, that the government could search defense counsel’s computers, and that the FBI was actually investigating at least one of the five legal defense teams while the prosecution ensued, the case has felt a bit like a three-ring circus to those of us watching. Still, even I was surprised by the latest motion filed by lawyers for Khalid Sheikh Mohammad, the self-professed 9/11 mastermind, claiming the judge and all members of the prosecution team must recuse themselves from the case because they’ve colluded to deny the defense access to critical evidence. The government’s response, filed last week, was only made public in the last couple of days.

Mohammad’s lawyers claim that the government secretly destroyed evidence, that the judge secretly approved destruction of that evidence after having ordered the evidence be preserved, and that he later approved an “adequate substitution” of the evidence, which the defense only learned about after the evidence was already gone.

As Mohammad’s lawyers put it: “the Military Judge, in concert with the prosecution, manipulated secret proceedings and the use of secret orders to mislead the defense and unfairly deprive Mr. Mohammad of his otherwise available remedies to prevent the destruction of material, helpful evidence.” Defense lawyers called the series of events “unconscionable,” and claim that as a result of “Military Judge Pohl’s judicial head-fake,” Mohammad has no way to challenge the commission’s action.

What exactly the evidence in question is about remains classified, as does much of the evidence underlying this motion and referred to only obliquely in the lawyers’ briefs. Most likely, the evidence at issue concerns the CIA “black sites” — secret CIA prisons overseas where Mohammad and others were tortured. Defense lawyers in September 2012 filed motions asking the judge to require the government to preserve the sites and information related to them as evidence. He ruled in their favor in December 2013, although that ruling specifies that it is “subject to subsequent modification.”

The government’s response to this latest twist in the case is that it did nothing wrong, that Judge Pohl later ruled that the substituted evidence they provided was adequate, that ex parte proceedings (secret from the defense and the public) are allowed under the military commission rules, and that the defense is making a big stink about nothing. 

Like the Classified Information Procedures Act followed in civilian federal courts, the Military Commission Rules of Evidence allow a judge to approve the government’s submission of a substitution for classified evidence if the judge deems the substitution adequate for defense purposes.

Much of the dispute seems to center on timing: The judge and prosecutors didn’t tell Mohammad’s lawyers that the evidence was being destroyed (after the judge ruled it should not be) and would be substituted with something else until that evidence was already gone and it was too late for the defense to object.

It’s not clear from the publicly available documents whether that notice was required. But the defense attorneys’ accusations that this demonstrates judicial bias and prosecutorial misconduct have clearly gotten under the prosecution’s skin. In its response, the government accuses the defense of employing a “scorched-earth litigation strategy” that “maligns the reputation of the Military Judge and the entire Prosecution team.” The prosecution also accuses defense lawyers of drumming up “breaches of judicial and prosecutorial ethics” that actually amount to “defense-manufactured nonsense.”

More specifically, the government claims:

the Defense counsel seek to undermine the Military Commission system — a system codified by two acts of Congress, signed into law by two different Presidents, and implemented by military and legal professionals who daily seek to honor their oaths. Defense counsel will apparently stop at nothing in their attempts to convince whoever may still be following their shrill antics that justice is simply not attainable at Guantanamo Bay before a military commission.

Of course, one hardly needs to follow the defense lawyers’ “antics” to question the likelihood that we’ll see anything resembling justice at Guantánamo. Four years after it began, the case remains mired in pretrial proceedings that have showcased one misstep by the government after another. As the government itself admits in its brief, instead of addressing the defense request for preservation of evidence, “Between April 2014 and October 2015, this Military Commission held sessions focused almost exclusively on issues related to the AE292 motion series, which pertained to a potential conflict of interest stemming from an FBI investigation of one of the Defense teams.” Indeed.

With the lawyers and judge bogged down for years arguing over the impact of such prosecutorial antics, the prosecution now seems to be trying to deflect attention from its own interfering conduct by professing outrage. Four years into the case against the alleged plotters of the worst terrorist attack ever on US soil, it has begun to take on the tone of a nasty political campaign, with the lawyers impugning each other’s character as much as their conduct.

Perhaps that’s not surprising. After all, politics is the reason the case was brought in the military commissions at Guantánamo in the first place, instead of in a civilian federal court, where the vast majority of these problems would never have arisen.

Back in 2009, Attorney General Eric Holder announced he had sufficient evidence to prosecute the five alleged co-conspirators in a federal court and planned to do so in New York City, not far from where the terrorists’ planes struck the World Trade Center and killed more than 2,700 people. Soon, however, protesters, whipped up by right-wing opponents of the Obama administration, gathered in downtown Manhattan to decry the decision, calling Holder a “traitor” and a “communist”; some even called for his lynching.

After New York politicians chimed in to oppose the Manhattan trial, Holder withdrew his plans, and took so long to locate another forum that Congress passed a law forbidding the trial from being brought in the United States. Rather than fight that, the Obama administration conceded Guantánamo was the only place it could go forward.

That concession to the ban on bringing any Guantánamo detainees to the United States has made it impossible for the Obama administration to close the detention center ever since, despite President Obama announcing his intention to do so within a year at his inauguration in 2009. Obama has since said that if he could do things over, “I think I would have closed Guantánamo on the first day.” He said he didn’t anticipate the dramatic political turnaround on the issue; in 2009 there was bipartisan agreement it should be closed.

Today, 80 men remain at the US prison in Cuba. The vast majority are not even accused of having committed a crime. Of these, 30 have been cleared for transfer, but the Obama administration hasn’t yet been able to secure a place for them to go. And the 9/11 case, which would surely have been over and done with long ago had it been prosecuted in federal court, drags on through a procedural quagmire and personal recriminations that can only further undermine the credibility of any eventual outcome. 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Follow her on Twitter (@deviatar).