In another setback for the death penalty trial of the five men accused of aiding the terrorist attacks of September 11, 2001, two defense lawyers for Khalid Shaikh Mohammed say the U.S. government secretly destroyed relevant evidence.
On May 11, defense lawyers for the accused mastermind of the 9/11 terror attacks asked for judge Col. James Pohl and the prosecution team to be recused from the trial, and for the case to be shut down. Defense lawyers David Nevin and Maj. Derek Poteet say that the U.S. government destroyed evidence related to the case, according to the New York Times. The two men are unable to provide further details because the issue is classified, but Mr. Nevin said the evidence was “favorable” to the defendants.
Major Poteet also told the Times that the defense was first informed in February that Colonel Pohl would provide them with a “summary of a substitute” for the original, classified evidence. The defense requested Colonel Pohl to preserve the evidence for the record and Pohl complied. Or so they thought.
“But they learned in February, they said, that about 20 months earlier, and without their knowledge, prosecutors had obtained from Colonel Pohl a secret order that reversed his previous decision,” theTimes writes. “By the time they found out, the government had already destroyed the evidence, giving them no opportunity to challenge the move.”
Major Poteet said the situation created the appearance that Colonel Pohl was “colluding with the government.” The Times reports that the original, now destroyed evidence, may have been related to one of several foreign black site prisons operated by the Central Intelligence Agency in Thailand, Poland, Romania, Lithuania and Afghanistan, and at a secret site at the Guantánamo base. KSM was tortured for several years at one of these sites before being transferred to the military prison at Guantánamo Bay, Cuba in 2006.
The accusations are likely to delay upcoming scheduled hearings from May 30 to June 3. If there is a delay it will be latest in a long line of interruptions to this alleged pursuit of justice. Most recently, Col. Pohl canceled two weeks of hearings that were scheduled to begin on Friday, April 1st.
“The whole thing is really odd to me. I thought it was an April Fools’ joke,” said Chicago defense attorney Cheryl Bormann, who was already in Washington to travel to Guantánamo this weekend to represent alleged 9/11 plot deputy Walid bin Attash.
The destruction of evidence is, unfortunately, not the first controversy this trial has faced. Another conflict of interest became an issue in 2014 when the defense attorneys for Mohammed and the four alleged co-conspirators said they believed they were being spied on by the Federal Bureau of Investigation.
Foreign Policy reported,
the FBI had secretly conducted an investigation into possible wrongdoing on the part of one or more members of the five separate defense teams (one for each defendant). Such an investigation could put defense team members in the untenable position of having to provide information to defend themselves or others against possible criminal action — information that could be used against the interests of their own clients.
There was also the issue of interference from outside sources during the hearings. FP continues:
In January 2013, the court’s audio-visual feed, visible to a small set of commission observers, was abruptly cut off by someone other than Judge Pohl; previously, Pohl was believed to be the only person with the authority to use the unique-to-Guantanamo “kill-switch.”
Later, a clearly annoyed Pohl learned that something called the Original Classification Authority (OCA) — which is likely the CIA given that most of the information subject to censorship in the case is related to the agency’s rendition, detention, and interrogation program — had hit the kill switch. Judge Pohl promptly cut off their privileges.
In February 2013 it was revealed that listening devices were hidden within smoke detectors, possibly infringing upon attorney-client privileges. The defense also claimed their emails and work files were disappearing. Former defendant Ramzi Bin al-Shibh was also removed from the trial by the judge in an attempt to speed the process along after so many delays. However, critics argue that al-Shibh was removed because he refused to be quiet, complaining loudly of sleep deprivation.
Is this trial really about truth, justice, and upholding law and order? If the military court hopes to find something close to the truth they should open the hearings to the public, end the spying on the defense team, and be transparent about the treatment of the alleged hijackers. Only by allowing the truth to be released will the wounds of 9/11 begin to heal.