The judge presiding over the military tribunals at the Guantánamo Bay prison allegedly “effectively conspired” with prosecutors to destroy evidence related to the case of accused 9/11 planner Khalid Sheikh Mohammed (KSM), according to a court document first obtained and published by the Guardian.
The document accuses US Army Col. James Pohl of secretly working with military prosecutors to approve the destruction of evidence in the KSM case while preventing the accused terrorist’s attorneys from discovering that Pohl had allowed the Obama administration to destroy the material.
Mohammed’s legal team claims the covert collusion rendered lawyers unable to challenge the destruction of evidence, and as a result the case should be dismissed. A legal brief filed by the defense cites the famous 1932 “Scottsboro Nine” Supreme Court case, Powell v Alabama, asserting that the tribunal’s failure to provide the defense access to evidence “would be little short of judicial murder.”
“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 lawyers said.
“First they tell us they will not show us the evidence, but they will show our lawyers,” Mohammed, who faces execution if found guilty of murdering 2,973 people in the September 11, 2001 terrorist attacks on the United States, said in the court filing. “Now, they don’t even show the lawyers. Why don’t they just kill us?”
Pohl’s judicial impartiality had previously been questioned when he ordered a blackout of all testimony related to GITMO detainees’ capture, imprisonment and torture in December 2012. In contrast, Susan J. Crawford, the senior George W. Bush administration official in charge of deciding which suspected terrorists to try, declined to charge alleged “20th 9/11 hijacker” Mohamed al Kahtani after she admitted he had been “horrendously” tortured.
Numerous high-ranking GITMO officials have resigned over what they claim is a corrupt military commissions system established to prosecute detainees at the prison. Former GITMO lead prosecutor Col. Morris Davis called trials there “rigged from the start.” After resigning, Davis said he was told by top Bush lawyer Jim Haynes that acquittals were unacceptable. At least four other military prosecutors—Maj. Robert Preston, Capt. John Carr, Capt. Carrie Wolf and Darrel J. Vandeval—requested to be removed from the GITMO military commissions because they also felt that the proceedings were unfair.
Marine Corps Gen. Michael Lehnert, the first commander of GITMO during America’s war against terrorism, has called for the prison’s closure, arguing that its continued existence helps America’s enemies and “validates every negative perception of the United States.”
“In retrospect, the entire detention and interrogation strategy was wrong,” Lehnert wrote in 2013. “We squandered the goodwill of the world after we were attacked by our actions in Guantánamo, both in terms of detention and torture.”
Col. Lawrence Wilkerson, former chief of staff for Bush-era Secretary of State Colin Powell, has claimed that Bush, his vice president Dick Cheney—who admitted in 2014 that innocent men were caught up in the CIA torture program—and Donald Rumsfeld, who was defense secretary, all knew the “vast majority” of GITMO detainees were innocent or no danger but held them anyway for political reasons.
GITMO proponents argue that detainees there are not subject to protections against torture under domestic and international law and that the focus should be on the horrific crimes of al-Qaeda committed on September 11, 2001. The GITMO military commissions are about the “summary execution” of nearly 3,000 people on 9/11, not about how prisoners are treated, said military prosecutor Clayton Trivett Jr., who was involved in the prosecution of some of the most high-profile Guantánamo detainees, including KSM.
Although he issued an executive order to close GITMO on his first full day in office and offered a plan to relocate its detainees to a stateside facility, President Barack Obama has been thwarted by popular demands to keep detainees out of the United States and by repeated congressional action to prevent him from closing the prison.
Of the 780 men and boys imprisoned at GITMO since it opened in 2002, 80 remain there. Of these, 29 have been cleared for release.