GUANTANAMO BAY, Cuba — The defense lawyer for 9/11 mastermind Khalid Sheikh Mohammed argued Friday for the ouster of the new judge in his death penalty case as legal teams clashed over what went on at CIA black sites and key questions about alleged torture and confessions remain unresolved.
Air Force Col. Matthew McCall, who took over as a judge on Tuesday, is the fourth judge to preside over the 9/11 hearings. McCall served a short stint as the judge last year before he was removed for not having two years of military experience on the bench at the time, but he now has the requisite experience.
Gary Sowards, who previously represented Ted Kaczynski, also known as the “Unabomber,” and now represents Mohammed, said Friday that McCall should recuse himself due to a lack of impartiality stemming from the controversy related to McCall leaving the case last year. Sowards said he’d initially been outraged over the “shoddy treatment” of McCall but later learned the judge may have had a role in leaving the case. Sowards said the decision was done prior to the hearing of a motion from Mohammed and that “all of that was done extrajudicially.”
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: Ammar Baluchi, Walid bin Attash, Ramzi bin Shibh, and Mustafa Hawsawi.
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Cheryl Bormann, a defense attorney for bin Attash, also objected Friday to McCall presiding over the case, claiming that “with respect to this case … you’re not familiar with the record.” David Bruck, the lawyer for bin Shibh, joined the objections, and the defense team for Hawsawi objected to the proceedings because it learned counsel wasn’t present.
Only the defense team for Baluchi endorsed the judge’s presence on the case, with attorney Jay Connell saying that “the questioning of the judge demonstrated that he has an open mind, a willingness to learn, and a commitment of fairness — that’s all we can ask.” Clay Trivett, the managing trial counsel for the prosecution, also said, “The government has no challenge.”
Mohammed’s lawyer had pressed McCall over his views on the death penalty on Wednesday.
“I see the death penalty as being a valid option for the government. It’s lawful. It’s legal,” McCall said, adding that “because of the seriousness and the finality” of a sentence death sentence, its application requires a higher standard.
Mohammed’s attorney also asked whether McCall has “any difficulty presuming him innocent of these charges,” and McCall said that he had asked himself whether he was “really qualified” for the case and whether he could be “fair” on the case. He said the answer to both questions was yes.
Sowards also asked whether McCall would be willing to entertain testimony about “torture.”
“I see it as being a very complicated area, and I look forward to getting educated on it via counsel for both sides,” the judge replied.
Mohammed’s lawyer said the defense intended to pursue an “outrageous governmental misconduct” defense and asked if the judge would let them do that, and McCall answered, “I intend to allow defense to try to make their case.”
U.S. Navy Lt. Peter Berg, another lawyer for Mohammed, complained about the lack of detail in much of the information that the prosecution had turned over related to the terrorist’s interrogations at CIA black sites, saying that information on 803 separate interrogations had been narrowed down to 11 pages. Berg said, “We cannot even begin to make these arguments unless we know what Mr. Mohammed was asked, and what Mr. Mohammed said, in these 803 interrogation sessions.”
Trivett noted that there had been 601,150 pages of discovery provided to the defense so far, adding that 20,908 pages relate to the CIA’s interrogation programs, including black site details, Office of Legal Counsel memos, photos of the black sites, and photos of the accused in the black sites.
“I believe that the defendant is entitled to no further information,” he said.
The prosecution’s case will rely on phone and bank records, FBI witnesses, photographs and video of the attacks, and admissions from the accused, Trivett said.
“At no point are we ever going to be relying on any statement made by the accused while in CIA custody,” he said.
The government alleges that the men in custody carried out a criminal conspiracy in planning and executing the 9/11 plot, listing the names of all 2,977 victims killed, in the 90-page 2011 charging sheet. The five men, who were arraigned in 2012, were also charged with attacking civilians, hijacking, terrorism, violations of the rules of war, and more.
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In the two decades since 19 al Qaeda terrorists hijacked and crashed planes killing nearly 3,000 people, the five men believed to be responsible for the planning and execution of the plot have yet to stand trial. The key unresolved question is the admissibility of confessions obtained by the FBI after the CIA subjected them to “enhanced interrogation techniques” — called “torture” by some.
