MIAMI — The military judge and the entire prosecution team in the Sept. 11 war crimes trial should be removed from the case because important classified evidence that would have been helpful to the defense was destroyed, lawyers for the lead defendant said Wednesday.
Lawyers for Khalid Shaikh Mohammad also said the proceedings, which have dragged on for years in the pretrial stage at the U.S. base at Guantanamo Bay, Cuba, should be put on permanent hold because of what they portrayed as a serious breach of the defendants’ constitutional rights in the death penalty case.
The lawyers, civilian David Nevin and Marine Corp. Maj. Derek Poteet, declined in a conference call with reporters to reveal the nature of the evidence or to describe it in anything but the vaguest of terms to avoid violating rules for the handling of classified evidence.
They said that the judge had previously directed the government to preserve the evidence and then allowed it to be destroyed without notifying the defense lawyers, who learned about it last month.
“This is an extremely significant situation,” Nevin said. “I believe you have the defense being misled.”
Nevin and Poteet filed a motion for the dismissal of the prosecutors and recusal of the judge on Tuesday but the document has to undergo a security review and has not been released. The chief prosecutor, Army Brig. Gen. Mark Martins, said he was unable to comment on a matter before the court.
Prosecutors have two weeks to file a response to the defense motion and the issue is not on the docket for the next pretrial hearing, scheduled to start May 30 and run for five days.
There have been repeated attempts by the defense to halt, or “abate” in legal terms, a case that has been plagued by legal and logistical challenges. The Obama administration sought at one point to move the case to civilian court in the U.S. but withdrew in the face of intense political opposition.
Mohammad and four co-defendants face charges that include nearly 3,000 counts of murder in violation of the laws of war and terrorism for their alleged roles in planning and helping to carry out the Sept. 11, 2001, hijacking plot. They are being tried by military commission, a system that combines elements of the civilian and military legal systems in what officials have described as the most complex and expensive legal proceeding in U.S. history.
That complexity stems in large part from the fact that Mohammad and his co-defendants were held in secret CIA prisons, known as black sites, and subjected to harsh interrogations that are now widely considered to have amounted to torture. Many of the details of the CIA interrogation program remain classified as is much of the evidence in the case, requiring the defense lawyers to hold top security clearances and to abide by strict rules for handling the material.
Pohl issued an order in December 2013 for the government to preserve overseas detention facilities, prompting speculation among journalists that the destroyed evidence is related to that subject. Lawyers for Mohammad, however, refused to comment.