GUANTANAMO BAY, Cuba — The judge presiding over the death penalty case against five al Qaeda members who played key roles in 9/11 said he wasn’t “shocked” the terrorist attack happened but was stunned by its massive “scope” as he recounted his personal experience while grilled by defense lawyers Wednesday.
Air Force Col. Matthew McCall took over the case on Tuesday, making him the fourth judge to preside over hearings in this iteration of the 9/11 case. On Tuesday, the U.S. Court of Military Commission Review, which oversees the island war court, handed down a ruling that shot down defense claims the Pentagon had unlawfully influenced decisions on which judge should preside over the case. McCall was grilled by the defense and prosecution on Wednesday as part of the “voir dire” process.
McCall was asked about his personal experience on Sept. 11, 2001, by Gary Sowards, a defense lawyer for Khalid Sheikh Mohammed, who also represented the “Unabomber” Ted Kaczynski. Mohammed, dubbed “KSM” and described as “the principal architect of the 9/11 attacks” in the 9/11 Commission Report, was a close ally of Osama bin Laden and is being tried alongside four co-defendants: his nephew, Ammar Baluchi, alleged hijacking trainer Walid bin Attash, 9/11 facilitator Ramzi bin Shibh, and al Qaeda money man Mustafa Hawsawi.
The judge said he was living in Hawaii at the time of 9/11 after graduating from law school at the University of Hawaii. The island state is six hours behind Eastern Standard Time, so it was just a few hours after midnight in Hawaii when the hijacked planes struck, and McCall’s roommate woke him up, saying, “Hey, there’s been an attack.”
McCall said he then sat in the living room with his roommate and watched news coverage all morning. McCall said his older brother has lived in Queens for roughly 35 years and that his mother texted him that morning to tell him his brother was OK.
Lt. Cmdr. Leah O’Brien, a military officer assigned as a defense attorney for Baluchi, asked McCall further questions about his memories.
9/11 MASTERMIND SMILES AND WAVES IN GITMO COURT
McCall said he visited his brother in New York City with his family in 2013, and they went to where the World Trade Center had been and visited the memorial. The judge said that it was then that his brother mentioned to him then that he had been in Manhattan on 9/11, with his brother calling it a “chaotic day” trying to get home to Queens. McCall said he loved his brother but wasn’t very close with him, so that is why he hadn’t learned it until a decade later, adding that “I never even thought of him as potential victim” of 9/11.
The judge was asked how he felt when visiting the 9/11 memorial and said, “Sad, similar to the feelings of when it first happened. Just such a loss of life.” He also said of 9/11: “I recall being shocked at the scope of it. … The fact that there was a terrorist attack didn’t shock me. … Incredibly sad. Such a sad loss of life.”
When asked if 9/11 played a role in him joining the military, McCall said, “It really didn’t.” The judge called himself a longtime “military brat” and said he visited a military base in Okinawa when playing rugby and teaching English in Japan and said he felt comfortable there.
In the two decades since the attacks, the five men believed to be responsible for the planning and execution of the plot have yet to stand trial. The key question of whether confessions obtained by the FBI after their CIA custody should be admissible remains unresolved.
When the judge was asked about his thoughts on Islam, he said he was a Christian, and he did not believe in seeing the majority of Muslims as somehow hostile to Christians and Jewish people.
Cheryl Borman, a defense lawyer for bin Attash, grilled him further over his views on Islam, and he said: “I don’t think you can look at Islam as one big block. … People that follow almost any of the major religions have a wide variety of views. … Some are going to be more intolerant, some are going to be more tolerant. … It’s not monolithic.”
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KSM’s lawyer also asked the judge if he could consider the 9/11 mastermind to be presumed innocent. McCall said he asked himself two questions before accepting the job: “Am I really qualified?” and “Can I be fair?” McCall said the answers were yes.
Mohammed confessed to planning the 9/11 attacks in a March 2007 statement to the Combatant Status Review Tribunal.
After multiple scuttled military commissions, numerous retired judges, battles over classified information, and accusations of torture, the death penalty trial had been set for 2021, but COVID-19 upended that.
McCall said: “I get it. This case has been going on for a really long time. … I feel zero pressure to get this case done.”
He said he would like to see “some progress,” but he felt there was “no pressure to rush this into trial.”
“Conviction or acquittal — that’s not my job,” McCall said. “I will sleep well if I try my best to ensure this is a fair process.”
