Hours before the 20th anniversary of the 9/11 terrorist attacks, pretrial proceedings in the case against the five accused orchestrators started and ended on Friday with none of them present in the courtroom for the final public session of the week – while multiple defense teams raised formal objections against the judge continuing to preside over the military commission.
Khalid Sheikh Mohammed, the self-proclaimed mastermind of the attacks, had been present during public sessions of the proceedings on Tuesday and Wednesday this week, even taking the rare moment out of his detention cell to wave at reporters in the public gallery in the courtroom. But he and his co-defendants surprised reporters Friday by skipping the final public portion of the commission before the world recognizes the solemn commemoration on Saturday.
An assistant staff judge advocate, identified only by a pseudonym "Pa," testified to their absence and provided signatures acknowledging their "voluntary" decision not to attend. James Connell, defense counsel for Ali Abdul Aziz Ali, aka Ammar al-Baluchi, attempted to have the military witness identify himself, but the government objected, insisting the testimony should proceed anonymously and was within the regulations of the military commission and not a violation of the Sixth Amendment.
Connell’s complaint was less about identifying this particular witness on the record, and more about expressing his continuing objection to the government’s use of unnamed witnesses. The interaction illustrated not only the tedious nature of the pretrial proceedings where nearly every action warrants deliberation, but it also revealed another unusual aspect of this case: the defense does not have access to their own clients -- even when the court is in session – unless the accused actually attend the hearings.
The assistant staff judge advocate testified that one 9/11 defendant, Ammar al-Baluchi was sleepy and chose to nap rather than attend Friday's public session. No explanation was given for the absence of the other four defendants, though Connell was able to extract details that the condition worsened of another Gitmo detainee, Abdul Hadi al-Iraqi -- who is charged in another case but shares communal living quarters with some of the 9/11 defendants.
Al-Iraqi now claims that he is paralyzed and has lost the function of his legs, so al-Baluchi apparently aided him throughout the past several nights after the detainees rejected the assistance of a female corpsman. (His lawyers say that her initial offer was an invasive exam as the reason al-Iraqi waved off care.) The assistant staff judge advocate rejected the claim that Al-Iraqi is paralyzed.
Col. Matt McCall, presiding over the proceedings, offered to make a change to the schedule to allow the defendants more time to sleep Friday morning and attend today's proceedings in the afternoon, but the defense counsel ultimately refused the accommodation – rather than face the prospect that the codefendants would be dragged out of their cells and forced to attend in person.
After discussing the judge’s qualifications at length this week, Mohammed's lawyer Gary Sowards surprised many in the courtroom by announcing he would seek to disqualify McCall from sitting on the bench, saying there is a reasonable question about the judge’s impartiality, given the "extra-judicial" nature of McCall's removal from the case after he was initially assigned. (Sowards argues the decision was made without appropriate litigation and at the behest of the Pentagon.)
A second chief counsel argued not for McCall’s removal from the case, but that he needed more time to read in on the case at hand and capital law.
"You're not familiar with the record," defense counsel Cheryl T. Bormann told the judge. "You are not familiar with the law as it applies to capital cases. Being a judge in a trial courtroom requires you to rule spontaneously on objections."
A third lead attorney echoed both Sowards and Bormann. Connell declared he had no objections with McCall and would not seek to disqualify him. The final team deferred for now.
McCall said he would consider the arguments and render a decision on his own position.
The teams then moved into arguing over discovery, one of the most contentious issues in this case. The defense teams argued in favor of a motion demanding the government turn over more detailed evidence from the CIA black sites where KSM and the other detainees were held. After pointing out that the government provided limited assessments of more than 800 interrogation sessions, the defense further pressed the government's secrecy.
In step with this line of questioning, Connell also revealed to reporters after the session that he could now share that the prosecution had withheld evidence linking an FBI interrogator that was part of the so-called “clean team” that questioning the detainees after they arrived at Guantanamo and the CIA black site program, providing fresh scrutiny surrounding the 2008 testimony from the detainees that the government is expect to build much of its case upon.
This slow drip of information and lack of transparency creates a significant hurdle for each defense team, they argue. "We don't know what we don't know," Corey Krzan, one of Ramzi bin al-Shibh’s lawyers, said before the judge.
After about three and a half hours of public session, the court recessed for lunch and a classified session. The public portion of the proceedings will resume on Monday.