FT. MEADE, Md. (CN) — A military judge on Thursday shot down the suspected 9/11 mastermind's request to let another judge decide if he and the 9/11 prosecution team should step aside over allegations of evidence destruction.
Khalid Shaikh Mohammad's attorney David Nevin claims the government, led by Brig. Gen. Mark S. Martins, secretly colluded with Judge Army Col. James L. Pohl to destroy classified trial evidence crucial to Mohammad and the other four 9/11 defendants.
That includes evidence of Mohammad's torture by the United States, Nevin said during pretrial hearings at the Guantanamo Bay Naval Base, which the Defense Department showed in a closed-circuit feed at Ft. Meade.
Mohammad's defense team needs the evidence to reconstruct his torture, which includes waterboarding and sexual humiliation, to be able to argue against executing him, Nevin said.
"We have lost our ability to put our hands on some of the most important evidence in this case," Nevin said.
The defense learned in February that Pohl had granted a secret order 20 months earlier reversing a defense request to preserve the classified evidence in question. Nevin said the defense thought the order to preserve the evidence had resolved the issue, but would have challenged its destruction had they known about it.
"I believe it is appropriate for you to recuse yourself from ruling on the motion itself," he told Pohl.
Pohl had approved the substitution of classified evidence without ever seeing the original evidence, something he was obligated to do to determine its adequacy, Nevin said. But he also noted that he deduced this from court documents, not from any information he obtained directly from asking Pohl.
"The art of deduction is the craft of Sherlock Holmes. And from what I can see, Mr. Nevin is not Sherlock Holmes," prosecutor Bob Swan later responded.
But Pohl had a response as well.
"As a standard practice, both sides submit me orders to sign. If you're implying that I don't read them and simply sign them, I'm just telling you that's not true," he said. "None are simply signed because the government hands them to me, or the defense hands them to me."
The government staunchly denies that it did anything wrong.
"Rules allow for an ex parte presentation. It is not a secret hearing," Swan said. Ex parte contact allows one party to directly contact the judge without the other party's knowledge.
Swan contends that the defense still has access to the evidence, but in substituted form. A verbatim, sealed record of the ex parte hearing exists for appellate courts to look at post-conviction should there ever be one, he said.
But that would require a trial first. Pretrial hearings have bogged down efforts to try the five suspected 9/11 plotters over the deaths of nearly 3,000 people for years, and there is no trial date on the horizon. In the meantime, Guantanamo defense attorneys have long complained about their lack of access to classified evidence regarding their clients.
Military commissions have rules that require prosecutors to disclose the existence of evidence favorable to defendants. In the interest of national security, however, the United States can ask Guantanamo judges to review classified material, and the judges can then seal the classified material and provide defense teams with summaries or substitutions admitting relevant facts that the classified information would tend to prove.
The government has long held that classified evidence is preserved and that information is only deleted from the summaries and substitutes. Though the Classified Information Procedures Act does not permit evidence destruction, the Military Commissions Act allows for deletion.
This issue popped up in May during a hearing
for suspected al-Qaida commander Abd al-Hadi al-Iraqi, who now calls himself Nashwan al-Tamir. The Military Commissions Act does not define what "delete" means, Army Maj. Wendall Hall had told reporters after the hearing. It could mean delete, but it could also mean physical destruction, he said.
Al-Hadi's defense team raised the issue of the destroyed 9/11 evidence in May, and said it might impact their client as well.
One of al-Hadi's military defenders, Army Maj. Robert Kincaid, declined to discuss the issue in further detail but said in an interview Thursday, "We believe the same issue involving the same substantive evidence is implicated in our case. Whatever it is that was destroyed in that case has a bearing on our case."
Swan called the defense allegations that the prosecution secretly asked Pohl to order the destruction of evidence a "distortion of facts."
"There is no reason for you to recuse yourself. You have done nothing wrong. Nor have we," Swan told Pohl. He called the defense request "pompous condemnation," "undignified" and "lacking in civility."
Swan said the substitute that Pohl placed in the record is adequate. But Nevin disagreed, though he acknowledged that the Classified Information Procedure Act allows ex parte contact between a judge and the prosecution. However, he objected to the secretive nature, even if it is allowed.
"Let me be clear: these were secret proceedings in any sense of the word," he said.
Nevin raised the recent Supreme Court ruling in Williams v. Pennsylvania
to bolster his argument that Pohl should temporarily step aside. In that case, the high court found that prosecutors cannot fairly judge cases they have prosecuted.
Nevin argued that the Supreme Court cautioned that a judge would be biased from their previous position as a prosecutor, and that the ruling articulates the principles for how Pohl should decide the issue.
However, he failed to convince Pohl. With little fanfare and no explanation, Pohl denied Mohammad's request after the lunch break — meaning that Pohl will be the one to decide whether he should remove himself from the case.
Earlier in the day, Pohl also ejected unruly suspected al-Qaida leader Walid bin Attash from the court, sparing him from having to choose
whether he will keep his unwanted defense team or represent himself moving forward.
That issue could be decided on Monday, since Friday's hearing in the case will be a closed session.