Military commission likened to a schoolyard brawl as prosecution hits back but does not deny that proof in Khalid Sheikh Mohammed case was destroyed
The military lawyers prosecuting the self-proclaimed designer of the 9/11 assaults have struck back against the allegations that they colluded with a military magistrate to destroy evidence relevant to Khalid Sheikh Mohammeds defense.
In the latest sign that the USs premier military commission at Guantnamo Bay is becoming what one observer likened to a schoolyard brawl, the prosecutors said Mohammeds attorneys had cynically sought a scorched-earth litigation strategy that involves batter[ ing] the reputation of the army colonel presiding over the case.
In a 24 May military commissions filing lately unsealed to the public, the prosecution accuses Mohammeds defense team of bad faith and shoddy lawyering and says the true goal of its counterparts was to destroy the credibility of the controversial military trial system.
Yet in the filing, the chief commissions prosecutor, Brigadier General Mark Martins, and his team elide the central charge in the dispute: the destruction of proof in a death penalty case.
Last month, Mohammeds lawyers leveled the extraordinary accusation that military judge and army colonel James Pohl had secretly issued an order permitting the government to destroy evidence that he had earlier publicly agreed to preserve. While extensive classification rules render central facts in the case difficult to conclusively determine, other rulings suggest the evidence in question concerns Mohammeds torture by the CIA at secret prisons.
Mohammeds attorneys learned about what they call Pohls destruction order more than a year after Pohl issued it and after they said the destruction of evidence took place, which they said prevented them from attempting a remedy. On 10 May, they filed a motion trying the removal of Pohl and of Martins and his prosecution team and an aim to the long-delayed military tribunal for Mohammed.
In its 24 May response, the prosecution calls the accusation of collusion defense-manufactured nonsense and a willfully blind narrative. It notes pointedly that Mohammeds attorneys alerted reporters to their claims before their filing was publicly available.
Martins team say their equivalents will apparently stop at nothing in their attempts to convince whoever may still be following their shrill antics that justice is simply not attainable at Guantnamo Bay before a military commission. Their goal is not acquittal in this case; their goal, and their entire defense strategy, is that the lawsuit never, ever be tried.
However, the prosecutions 18 -page filing does not explicitly dispute the alleged demolition of evidence. It disputes that the demolition occurred in secret, claiming that the defense team possessed insufficient legal savvy to understand what was passing. The filing instead repeatedly refers to moves to preserve and/ or replace info in the case.
Evidentiary substitution occurs in civilian tribunals as a mechanism to conserve classified or sensitive information in open trials. The procedure puts forward summaries of information rather than the information itself. It featured in the terrorism trial of Zacarias Moussaoui, whose lawyers agreed to summaries of statements from , among others, Khalid Sheikh Mohammed.
Theyre finessing the questions, Karen Greenberg, writer of Rogue Justice: The Making of the Security State, said of the prosecution.
Mohammeds lawyers have rejected the adequacy of the substitution. On 31 May, they filed a response to the prosecutions answer. Under the rules of the military commissions, it is not yet available publicly.
I take it we would not be going through all this if they had not actually destroyed the evidence, David Nevin, lead attorney for Mohammed, told the Guardian.
A Pentagon spokeswoman for Martins declined to elaborate on the destruction of proof.
If Mr Mohammed had been informed timely[ ie, before the extermination of the original] that the Commission was approving a substitute for this evidence, Mr Mohammed would have had the right and they are able to bring a motion to oblige disclosure of the original proof, Mohammeds lawyers wrote on 10 May, despite apparently prohibitive military commissions rules.
The prosecution concedes that the defense team was not informed in any timely manner. Pohls 4 June 2014 order concerning the disposition of the evidence in question was not provided to the defense until January 2016. The prosecution said that both it and the judge believed the other would inform Mohammeds lawyers, but it denied any collusion took place.
Simple miscommunication, resulting in inactivity, is what caused a postpone of provision of the redacted order to the defense , nothing else, wrote the prosecution, which argued that the 18 -month delay was ultimately irrelevant to the case.
The adequate substitute[ info] is all the defense would have ever been entitled to under the law; so the fact that they were not notified of the specifics of the order until 18 months ago, while regrettable and completely unintentional, caused no actual racism to the accused.
Four years after Mohammed and his co-defendants were indicted before the commission their second military commission, following an aborted attempt to try the 9/11 instance in federal tribunal the trial stage is nowhere in sight. Years of pre-trial hearings, in which disputes have ranged from the fact that there are classified evidence to the conditions of the detainees Guantnamo confinement, have yet to conclude all before Pohl addresses the question of his fitness to continue.
Greenberg, the director of the Center on National Security at Fordham University Law School, called the prosecutions filing an indication that the military commissions had run aground.
The incensed tone and rhetoric of this document belong more to a schoolyard brawl than a courtroom debate, she said.
The document is little more than a name-calling lament of frustration against the defense team, a deflection of responsibility for the governments failures to share information in an acceptable way, and above all, a sense of shock that their intents and behavior have been called into question.
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