As the pre-trial hearings in the 9/11 case continue this week, here are the major topics the court is scheduled to tackle this week:
Access to information
Perhaps the biggest issue of the case so far is the limited and filtered access to evidence that the defense team is given, also referred to as discovery in legal jargon. Before evidence ever reaches the defense team, it goes through a couple rounds of filtering—first from the CIA where the evidence is screened for any operational classified information, defense lawyers say they’re pretty sure happens, and then a second round by the prosecution who is only required to share information that is “relevant, helpful, and non-cumulative.” But what that exactly means is up in the air.
On the schedule for this week are several motions related to this topic—AE 568 about business records, AE 534 about interrogation documents, AE 561 about on-CIA interrogation requests, and AE 538 about FBI’s role in interrogation policy.
Suppression of “clean team” statements
In September 2015 pre-trial hearings, then-Judge James Pohl issued Protective Order #4, which essentially limited the defense team’s ability to question people connected to the enhanced interrogation and torture of the CIA’s program and whose association with the CIA is classified while also suppressing “clean team” statements for the prosecution. “Clean team” statements are the information and confessions that the defendants gave after they had been subjected to torture and then read their rights.
The prosecution filed a motion to reconsider, AE 524, and with a new judge, Judge Marine Col. Keith Parrella, it is possible it’s overturned. If it is reconsidered, then the defense team has said it already had 80+ witnesses ready to call to trial over the issue of investigating people associated to the interrogation program. If it is not overturned, the prosecution could appeal the case, which would suspend pre-trial hearings and send the case to DC until the issue is resolved.
Defense lawyers said that Protective Order #4 probably cut one to two years off the case, but that added benefit could disappear, depending on what happens.
Unlawful trial meddling by former-AG Jeff Sessions and CIA Director Gina Haspel
Lastly, there are two motions related to unlawful trial meddling, called unlawful influence in legal jargon—one against Secretary of Defense James Mattis and another against CIA Director Gina Haspel.
The first one about SecDef Mattis, AE 555, relates to an incident that supposedly spiked plans for a plea deal between the prosecution and defense. According to defense lawyers, then-Attorney General Jeff Sessions heard that there the two sides of the case were in discussion of a plea deal and that the convening authority Harvey Rishikof—the person in charge of the military commissions system in the trial—was open to the possibility. Sessions, then instructed SecDef Mattis to fire Rishikof to avoid a plea deal, which the defense team argues is unlawful influence by the DOJ in a case where the convening authority is supposed to be independent.
The issue the defendants claim with CIA Director Gina Haspel, outlined in AE 579, is that she made comments during her confirmation hearings in July that presumed the guilt of some of the defendants, without providing any caveat, such as “accused” or “suspected.”
For example, during her hearings Haspel said “I’m very proud of the fact that we captured the perpetrator of 9/11, Khalid Sheik Mohammed. I think we did extraordinary work.”
The defense argues that the language is a pressure impeding a fair and independent trial by the convening authority.
Check DSJ throughout the week for updates on the case.