The 9/11 case judge on Wednesday froze pretrial hearings in the death-penalty case over a controversial Pentagon order requiring the judges to move permanently to this remote outpost until their cases are over.
Army Col. James L. Pohl’s order was not immediately available to the public. But those who read it said Pohl, who is also chief of the Guantánamo war court judiciary, abated the prosecution of alleged 9/11 mastermind Khalid Sheik Mohammed and four accused accomplices until the Pentagon rescinds its move-in order.
A fellow war court judge, Air Force Col. Vance Spath, disclosed the order from the bench during a hearing in the USS Cole bombing case — Guantánamo’s other death-penalty prosecution — and abruptly ordered an early lunch recess to let lawyers study it.
The controversial Jan. 7 order was signed by Deputy Secretary of Defense Robert Work, stripping military judges of their other duties, including presiding at U.S. service members’ courts martial, without consultation with the top lawyers of the Army, Navy and Air Force.
So far none of the judges have obeyed it pending clarifications from their overall commanders, called The Judge Advocates General.
Defense lawyers in both the Sept. 11 and USS Cole cases have alleged the move is an attempt to illegally rush justice through the move-in order, describing it as a pressure play designed to exile them to Cuba, cut short pretrial hearings and move straight to trial.
Prosecutors have defended the order, designed by a retired Marine general functioning as war court overseer, as part of an effort to improve resourcing at the crude compound here called Camp Justice.
The development came as defense lawyers for the alleged USS Cole bombing mastermind, Abd al Rahim al Nashiri, a Saudi, were questioning the war court overseer, retired Maj. Gen. Vaughn A. Ary, on what he meant when he proposed the rule change Dec. 9, saying “the status quo does not support the pace of litigation necessary to bring these cases to their just conclusion.”
Ary, speaking from his Pentagon headquarters replied: “Pace of litigation defines its own pace depending on the issues that come up.”
Nashiri, 50, is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the warship off Yemen that killed 17 U.S. sailors and wounded dozens of others. The Pentagon’s war crimes prosecutor wants him executed, if he’s convicted.
Nashiri’s lawyers want the judge to rule the move order was the result of illegal meddling in the judicial domain, and dismiss the charges.
Before recessing for lunch, Spath expressed the hope that the Pentagon would forgo a 15 business day review period that lets intelligence agencies scrub war court documents so the public could see Judge Pohl’s order soon.
An attorney in Washington, D.C., who read the order, described it like this: “Judge Pohl just issued an order which directs abatement of procedures until the relocation order is rescinded by proper authority. If not, he says he will consider other remedies.”