National Security

Judge, Prosecutor Conspired To Manipulate 9/11 Mastermind’s Trial, Lawyers Claim


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Kevin Daley Supreme Court correspondent
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Attorneys representing 9/11 mastermind Khalid Sheikh Mohammed have alleged his trial’s presiding judge secretly conspired with federal officials to destroy evidence.

According to recently unsealed documents, Mohammed’s defense team filed a motion May 10 claiming that the trial’s presiding judge, Army Col. James L. Pohl, secretly authorized the destruction of evidence relevant to al-Qaeda leader’s defense. On December 19, 2013, Col. Pohl issued an order preserving several items of evidence relevant to the defense. The evidence at issue remains classified. Pohl then allegedly issued a secret order six months later authorizing the Obama administration to destroy the evidence in question.

The defense claims the order was “the result of secret communications between the government and Judge Pohl, which he conducted without the knowledge of defense counsel.”

The secret order included a provision requiring the prosecution to proffer a redacted version of the order to the defense. The defense was not provided with a redacted version until 18 months after the order had been issued, and more than a year after the evidence itself was destroyed. Thus, for nearly a year and half, defense lawyers were unaware that evidence previously ordered preserved had in fact been destroyed. The redacted report, when furnished by the prosecution, was attached to another secret report.

“As a result, his right to prepare a defense in a capital case and his right to a reliable determination of guilt in penalty in a capital case has been substantially gutted,” the defense motion reads. (RELATED: Enforcing Legal Limits On Gitmo Transfers)

Mohammed’s lawyers also slammed the court’s lack of transparency, writing “Whatever legitimate national security interests might purportedly justify the near-Star Chamber proceedings that have riven this case, there can be no articulable excuse for so clearly misleading Mr. Mohammed’s counsel and preventing them from seeking remedies to prevent the destruction of crucial evidence.”

The defense has called for Colonel Pohl’s recusal, claiming his conduct in the case “evidences a lack of detached impartiality and the neutral, even-handed administration of the laws governing this case to which Mr. Mohammed is constitutionally entitled.”

The government’s response to the defense motion will not be made public for several more weeks, per military commission rules.

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