Carol Rosenberg, Miami Herald
The 9/11 trial judge on Wednesday froze pretrial hearings in a death-penalty case over a controversial Pentagon order requiring the judges to move permanently to this remote outpost until their cases are over.
In a 10-page order, Army Col. James L. Pohl abated the prosecution of alleged 9/11 mastermind Khalid Sheik Mohammed and four accused accomplices until the Pentagon rescinds its move-in order.
He ruled that the circumstances surrounding the controversial Jan. 7 relocation order “raise the issue of Unlawful Influence by creating the appearance of improper pressure on the military judge to adjust the pace of the litigation.”
Defense lawyers in both the September 11 and USS Cole death-penalty cases have alleged the move is an attempt to illegally rush justice, describing it as a pressure play designed to exile the military judges to Cuba, cut short pretrial hearings and move straight to trial. Unlawful Command Influence, or commanders meddling in the judicial function, is a crime in the U.S. military.
Prosecutors have defended the order, designed by a retired Marine general functioning as a war court overseer, as part of an effort to improve resourcing at the crude compound here called Camp Justice.
Deputy Secretary of Defense Robert Work signed it within a month of getting a recommendation from the overseer, retired Marine Maj. Gen. Vaughn A. Ary. It stripped military judges hearing Guantánamo cases of their other duties, including presiding at U.S. service members’ courts martial, without consultation with the top lawyers of the Army, Navy and Air Force.
So far none of the judges has obeyed it pending clarifications from their overall commanders, called The Judge Advocates General.
One 9/11 defense attorney, Jay Connell, said that Pohl “was right to pull the plug on the case” — and recited what he saw as a pattern of government interference.
“The FBI has infiltrated a defense team, a former CIA contractor became a defense interpreter, and the Deputy Secretary of Defense has unlawfully attempted to influence the military judge,” said Connell, the death-penalty defender of Mohammed’s nephew, Ammar al Baluchi.
The Chief War Crimes Prosecutor, Army Brig. Gen. Mark Martins, had no immediate comment. The next 9/11 hearings were scheduled for April 20-24. A Pentagon spokesman, Army Lt. Col. Myles B. Caggins III, said prosecutors were “studying the judge’s ruling and will make an appropriate response through court filings.”
The development came as defense lawyers for the alleged USS Cole bombing mastermind, Abd al Rahim al Nashiri, a Saudi, were questioning the war court overseer, Ary, on what he meant when he proposed the rule change Dec. 9, saying “the status quo does not support the pace of litigation necessary to bring these cases to their just conclusion.”
Ary, testifying from his Pentagon headquarters, said that he believed the order to move the war court judges to Guantánamo and strip them of their court martial duties was “influence neutral.”
He said he didn’t anticipate the order sidelining progress in the hearings. “Knowing what I knew then, I didn’t believe that it would have this effect, no,” he said, adding, “I stand by that recommendation.”
Nashiri, 50, is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the warship off Yemen that killed 17 U.S. sailors and wounded dozens of others. The Pentagon’s war crimes prosecutor wants him executed if he’s convicted.
Nashiri’s lawyers want the judge, Air Force Col. Vance Spath, to dismiss the charges over the interference.
Unlike Spath, Pohl ruled based on legal motions and without hearing testimony. He is chief of the Guantánamo war court judiciary, and noted in his ruling that neither he nor any of the top lawyers of the different services was consulted in advance.
Spath said in court Wednesday that Pohl’s ruling would have no bearing on his considerations. He was to hear from the top lawyers from the different services — two three-star generals and a vice admiral — later in the week on the implications of the order.
Lawyers for the five men accused of training, funding and directing the September 11, 2001, hijackers have asked their judge to dismiss the charges in their case, too.
But Pohl said in his ruling Wednesday that he believed the “taint” of what Work and Ary did “can be remedied and as such does not believe such a drastic remedy is needed at this time under the current facts.”
Pohl also declared himself “at a loss” over how his living in Cuba rather than at his home on the East Coast would “make the litigation proceed at a faster pace. Hearings require the presence of counsel and support personnel, apparently none of whom is being assigned to the Naval Station.
“Unless the intent is to make the military judge ignore his duty to exercise discretion under the law and instead move the case faster to shorten his stay at [Guantánamo], the purported change will not, and cannot, have its intended effect.”
He also noted: “It has long been a tenet of American law that an independent trial judiciary is essential to any system of justice.”
