Defense lawyers in the Sept. 11 trial have for years argued, mostly unsuccessfully, that a series of remarks by political leaders dating back to the Bush administration have contaminated the possibility of finding an impartial jury of U.S. military officers in the death-penalty case.
This week, lawyers for the accused lead 9/11 plotter Khalid Sheik Mohammed took aim at remarks the new CIA Director Gina Haspel made in her Senate confirmation hearings — and asked the trial judge to either dismiss the charges or remove the possibility of a death penalty because of alleged unlawful influence.
“As the court is well aware, since ancient times, as long ago perhaps as Deuteronomy, there’s been a presumption of innocence for those accused in any criminal proceeding,” one of Mohammed’s attorneys, Rita Radostitz, told the judge Monday.
In one example, Haspel told senators: “I’m very proud of the fact that we captured the perpetrator of 9/11, Khalid Sheik Mohammed. I think we did extraordinary work.”
Other allegedly contaminating remarks Radostitz cited involved Haspel calling Mohammed “the architect and mastermind of the 9/11 attacks,” stating that Mohammed was behind the 1993 attack at the World Trade Center, and “that he was the individual who personally killed a Wall Street Journal correspondent,” Daniel Pearl.
In none did she note that Mohammed has only been accused of plotting the Sept. 11, 2001 attacks by hijackers who crashed airliners into New York’s World Trade Center, the Pentagon and in a Pennsylvania field, killed 2,976 people. Prosecutors say Mohammed has claimed to have killed Pearl.
“The director of the CIA is not authorized under any circumstances to announce, with the whole world watching in a hotly contested hearing under oath, that a capital defendant is guilty,” said Radostitz, who wore a baby-blue hijab in court in deference to her client’s religious sensibilities.
Prosecutor Bob Swann countered that Haspel, who was the station chief at a black site in Thailand, was just answering questions asked by senators about the agency’s black site program. Moreover, he said, the CIA director was repeating what Mohammed himself said to a U.S. military review panel after his September 2006 transfer to Guantánamo.
A transcript of that Feb. 8, 2007 closed hearing had a military officer quoting him as saying he was responsible for the 9/11 operation “from A to Z.” CIA agents waterboarded Mohammed 183 times during the three years he was in the CIA’s secret prison network.
“We have not reached a stage where he gets a get-out-of-jail card for killing 3,000 people because of a bunch of tweets or a statement at a confirmation hearing before senators,” Swann said.
The prosecutor told the judge, Army Col. James Pohl, that it is the judge’s role to make sure that the eventual panel of military jurors selected understands the concept of a presumption of innocence in the capital case. No juror will be seated, Swann said, until the officer “convinces you that they can listen to your instructions and listen to the evidence with their minds open until such time as they have reached that decision of guilt or innocence.”
In 2016, the judge ruled that remarks by political leaders stretching back to the George W. Bush presidency did not constitute unlawful influence but said that lawyers will be allowed to more liberally scrutinize who is chosen for the jury of U.S. military officers because of those remarks.
Mohammed’s lawyers also argued for dismissal of the case on grounds of unlawful influence due to her role as the Original Classification Authority of information about the CIA’s black site program, know as the Rendition, Detention and Interrogation program.
An OCA is the ultimate decider on what information is classified, and at what level — secret, top secret, or others — and provides guidance for authorized reviewers deciding what elements of a document are classified. In the case of the 9/11 trial, prosecutors work with OCAs to decide what information from and about the black sites that defense lawyers with top secret clearances can and cannot see.
Sometimes prosecutors in consultation with the CIA decide that defense lawyers don’t need to know certain information to properly defend the case. At other times, despite their clearances, defense lawyers get classified summaries of classified information crafted by the prosecution with the CIA and then approved by the judge as an adequate substitute for the original.
Radostitz argued that Haspel has probably had that behind-the-scenes role of OCA since she was acting director.
Swann did not respond to the OCA issue in court arguments, and the prosecution court filing was still under seal this week.
In May, Mohammed’s lawyers argued that President Donald Trump’s incendiary tweets on military justice tainted the 9/11 trial, which still has no start date. Pohl has yet to rule.