March 1, 2015
While diplomatic relations with Cuba may be warming, the five 9/11 terrorists charged with masterminding the historic 2001 attacks against the US are stuck in judicial limbo after Chief Judge Army Col James Pohl froze the proceedings citing the Pentagon’s order mandating all judges involved with trials at Guantanamo Bay, Cuba be transferred to the island for the duration of the proceedings. Judge Pohl said the government’s actions constitute the appearance of pressuring military judges to speed up the pace, something that usurps judicial discretion and compromises the military judges.
Watch Kimberly Dvorak’s SD6 TV segment here
According to Gitmo Watch, the order, known as “abatement,” essentially means that no further proceedings will take place until the Department of Defense (DoD) withdraws the controversial order requiring all military commission judges relocate to GITMO or appoints new judges.
In an effort to speed things up, the Convening Authority, retired Marine Major General Vaughn Ayr, requested and received the approval of Deputy Secretary of Defense Robert Work to amend the Regulation for Trial by Military Commission in an effort to “accelerate the pace of litigation” for the 9/11 military tribunals. However, their decision was met with skepticism by defense attorneys who argued the government was interfering with the discretionary authority of the appointed trial judge to conduct the trial and have falsely asserted the trial judge was the cause for the delays.
In January, the 9/11 defendants filed a motion to dismiss the case citing unlawful influence over the military judicial process. “Unlawful influence, an issue in some military cases with no direct analogue in the civilian courts, occurs when a government official attempts to influence the action of a military judge,” Lt Col Sterling Thomas, a U.S. Air Force Judge Advocate General assigned to represent Ammar al Baluchi in the military commission said. “In their motion, the defendants argued that the rule change was (sic) increased the personal cost to military judges of time between hearings, as the military judges must spend that time at Guantanamo Bay rather than their current place of residence.”
James Connell, civilian attorney for Mr. al Baluchi explained, “The military commissions have been plagued by intrusions by the FBI, CIA, and now senior DoD officials. It would not surprise me if the administration seizes on this latest problem as an excuse to move the cases back to the civilian courts.”
It’s important to remember that in April of last year, the defense also accused the government of tampering with the case by recruiting a defense team member as a confidential informant. And earlier this month the defense said the government improperly used a temporary courtroom interpreter, who “happened” to be a CIA contractor associated with the torture of prisoners after 9/11.
The government has charged Khalid Shaikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi with attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel, or aircraft, terrorism, and conspiracy in connection with the attacks on 9/11.
The judge’s ruling gave the prosecution five days to appeal the new order. The lead prosecutor, Army Brigadier General Mark Martins has yet to comment on the latest delay.
On Friday, the Pentagon rescinded the order, but GITMO Judge Pohl refused to cancel his abatement and will wait to see how the government prosecutors refute the undue influence allegations before making a final decision.
But the question of prosecutorial or government misconduct is nothing new, as Ninth Circuit US Court of Appeals Chief Judge Alex Kozinski wrote last year, “There is an epidemic of Brady violations (cases where prosecutors fail to turnover evidence they have discovered that could affect the guilt of the defendant) abroad in the land..” “Only judges can put a stop to it,” he bluntly said.
So far the military tribunals have convicted eight terrorists connected with 9/11, of that, four of those convictions have been overturned on appeal. The latest Order to Vacate came from the U.S. Court of Military Commission Review earlier this month when former Guantanamo Bay detainee David Hicks, an Australian, was absolved of providing material support for terrorism, despite his 2007 plea agreement.
Daphne Eviatar of Human Rights First said, “Today’s unanimous ruling is just one more piece of evidence showing that the inefficient, unnecessary military commission system at Guantanamo Bay is ill-equipped to handle terrorism cases. There is no doubt that Hicks could have been tried in federal court on terrorism-related charges.” Nevertheless, President Obama has accelerated the pace of GITMO detainee releases, leaving 122 alleged terrorists on the remote Naval base.
According to Human Right First, the military tribunals have proven to be a costly failure as well. “Guantanamo is also much more expensive than federal prisons, costing more than $2.9 million per prisoner annually, compared to less than $35,000 in a maximum security federal prison.”
Many legal scholars also point out the repeatedly overturned verdicts make a mockery of the American justice system.
Read more GITMO articles reported by Kimberly Dvorak from Guantanamo Bay, Cuba by clicking here.
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