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Army judge not planning for 9/11 trial at Guantanamo in 2019

Alleged al Qaeda kingpin Khalid Sheik Mohammed, in detention at Guantanamo, in a 2009 file image. (Photo courtesy Jarret Brachman via Miami Herald/TNS)

The military judge in the 9/11 trial is scheduling 16 weeks of on-again, off-again pretrial hearings at Guantanamo in 2019, a timetable that makes clear the five-man war crimes trial won’t actually begin before 2020.

Accused mastermind Khalid Sheik Mohammed and his four alleged accomplices got to Guantanamo in 2006 after three and four years in CIA prisons. They were arraigned in this death-penalty case in May 2012.

The judge, Army Col. James L. Pohl, has been holding pretrial proceedings ever since, as he and attorneys work out basic legal questions and what classified evidence defense lawyers can see, and which portions they can discuss with the accused terrorists, as they prepare for the trial.

Last summer, Chief Prosecutor Army Brig. Gen. Mark Martins proposed deadlines for defense filings that would start the trial in 2019, a timetable the judge never accepted.

Instead, Pohl has devoted portions of pretrial hearings to pointed questions about whether the remote Navy base in Cuba with about 5,500 residents is prepared to accommodate the demands of a long-running, complex trial with participants coming and going from the United States. The Pentagon has built a tent city and trailer park at Camp Justice, the court compound, and has negotiated with the Navy base to set aside guest quarters for the judge, his staff, some attorneys and 9/11 families who attend each hearing.

The jury will be made up of military officers chosen from a pool shuttled to the island, perhaps 50 at a time, and housed across Guantanamo Bay, a situation that helps sequester them but requires a special boat trip to and from their guest quarters each court day.

Pohl circulated the proposed 2019 hearing dates on Tuesday to allow lawyers to comment before the dates are put on the court calendar. He had set aside 13 weeks for pretrial hearings this year but so far reduced the 2018 schedule to 10 weeks as lawyers and the judge continue to work on pretrial legal pleadings, and occasionally call witnesses.

The next hearings are scheduled for July 23 to Aug. 3. Pohl has ordered testimony from the top lawyer at the Defense Department and a fired war-court overseer on whether the firing amounted to unlawful influence on the case.

The proposed 2019 schedule has not yet been released. But military commission staff members who saw it provided the dates to McClatchy, noting that unlike recent years the proposed 2019 calendar includes two weeks of hearings during next summer’s Ramadan holiday and a session on Sept. 11, 2019.

“It has proposed hearing dates through November,” said attorney Jay Connell, who represents Mohammed’s nephew, Ammar al Baluchi, who allegedly help move money to the 9/11 hijackers for flight-school training and travel to the United States.

The 19 suicide-hjackers commandeered commercial aircraft on Sept. 11, 2001, and crashed them into the World Trade Center, Pentagon and a Pennsylvania field — killing 2,976 people. It was the worst terror attack on U.S. soil.

Connell noted that the judge scheduled three sessions of 2019 hearings straddling three weeks, interpreting that to mean the judge may be planning to hear from witnesses ahead of motions to suppress certain evidence — a necessary pretrial step toward jury selection.

The case is especially complicated by the captives’ years in CIA prisons where they were waterboarded and subjected to other, now illegal brutal treatment to get them to spill al-Qaida’s secrets. Only voluntary confessions are admissible at the war court, and defense attorneys are seeking sufficient evidence from the CIA black sites to argue that even un-coerced statements the defendants made to FBI agents at Guantanamo in 2007 must be excluded from trial as the fruit of torture.

Pohl’s proposed 2019 schedule includes these hearing days: Jan. 28-Feb. 9; March 18-29; May 6-17; June 17-21; July 22- Aug. 9; Sept. 9-27; Oct. 28-Nov.15, according to legal staff who had seen the memo and provided the dates to McClatchy.

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© 2018 Miami Herald

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