Suspected 9/11 mastermind Khalid Sheikh Mohammed’s defense team is calling for the entire prosecution at Guantanamo Bay to relieve themselves of their duties after suspicions arose that they secretly destroyed evidence in the long-running case.
They also believe the entire case against Mohammed should be dismissed, based on the alleged actions of the prosecution, which the defense labeled as “at least the appearance of a collusion.”
“Now, and indeed over other matters previously, Khalid Sheikh Mohammed’s military commission is fatally flawed,” lead defense attorney David Nevin told the Guardian.
US President Barack Obama’s term is nearly up, and if the defense gets its way, it will be the new administration that has to figure out what to do with the suspect, who has been in custody for 12 years now for his suspected role in the September 11, 2001, attacks on New York and Washington, DC.
The prosecution is seeking the death penalty for Mohammed, who confessed under interrogation to being the architect of the attacks.
The court wouldn’t provide further details of the defense’s allegations, which are contained in an unclassified legal filing made Tuesday. The document has still not passed the mandatory security check.
Pentagon spokesman Commander Gary Ross added that “it would be inappropriate to comment on a document not yet released to the public.”
Mohammed’s other attorney Marine Corps Major Derek Poteet was disheartened at the prospect of filing the allegations against members of the prosecution.
“I have great respect for Colonel Pohl and Brigadier General Martins, and accordingly I am disappointed, disturbed and sad that we found it necessary to file this motion,” Poteet said.
Although Nevin and Poteet have only been given permission to discuss the surface details of the court filing, they said there had been a request by the government to Pohl to destroy the evidence, which pertains to both Mohammed’s guilt and the handling of his trial. But Pohl ordered to keep the documents, pending further investigation, and no complaints from the defense team followed.
It wasn’t until December 15 that Nevin says he received, in his words, a “hint from the prosecution that the evidence was no longer available to us.” By early February the defense received a sealed order from Pohl outlining that the judge had already sanctioned the destruction of the documents 20 months prior.
“There’s at least the appearance of collusion between the prosecution and the judge. We’re not saying more than that, but there is that appearance,” Poteet said, adding that had they known of the order to destroy, they would have contested it.
The defense added that no matter if the prosecution steps down – or if Mohammed goes to trial and is found guilty – they will still likely seek to address the evidence destruction during sentencing.
The government has 14 days to respond to the current motion, with the next pre-trial hearing set for end of May. Time is of the essence, and Pohl may not get to the allegations in time, as there are other outstanding matters to be settled as well before the case goes to trial.
There is disagreement among the defense as to whose fault it is ultimately that the documents vanished into thin air. But the lawyer for co-defendant Ammar al-Baluchi says they agree on one thing: that “at the very least, the prosecution team manipulated the system that resulted in the destruction of evidence.”
Mohammed’s trial has been wrought with uncertainty and legal wrangling by both teams. The case is considered to be the most important remaining 9/11-related trial.
The self-described architect of the attacks, Mohammed had been kept in US custody at Guantanamo since 2003, with 183 documented cases of waterboarding in a single month. The upcoming trial is the culmination of a very long-winded process: previous federal and criminal trials couldn’t go forward, because of a law passed by Congress, preventing the Pentagon from transferring Guantanamo detainees onto US soil. The current tribunal, which is the second, has now gone on for four years without going to trial.