In another likely setback to progress toward a trial, the long-serving Army judge in the Sept. 11 case on Monday announced he will retire on Sept. 30 and assigned a Marine colonel who has been a military judge for three years to replace him, effective immediately.
In his notice filed at the Office of Military Commissions, Army Col. James L. Pohl said he has chosen to “leave active duty after 38 years. To be clear, this was my decision and not impacted by any outside influence from any source.”
Pohl assigned Marine Col. Keith A. Parrella, 44, a military judge who currently handles court-martial cases at Camp Lejeune, North Carolina, to replace him. Accused mastermind Khalid Sheik Mohammed and four other alleged accomplices are accused of conspiring with the hijackers who killed 2,976 people on Sept. 11, 2001, and could face military execution if they are convicted.
But it’s been six years since the suspects were arraigned. The Guantánamo case still has no trial date as Pohl and now Parrella sift through pretrial motions at the court President George W. Bush created after the 9/11 attacks. To catch up, Parrella will need to read six years of motions, more than 20,000 pages of pretrial transcripts and a classified record whose size is not known.
Parrella’s assignment marks a transition to a new generation of post 9/11 military judges handling Guantánamo’s two long-running death-penalty cases.
Earlier this month, Pohl assigned Air Force Col. Shelly Schools to preside in the long-running trial of a Saudi man accused of plotting al-Qaida’s suicide bombing of the USS Cole warship. Alleged Cole plotter Abd al Rahim al Nashiri, who was captured in 2002, is in his seventh year of pretrial hearings. that are now stalled while a Pentagon appeals panel resolves key questions about a war court judge’s authority at a military commission.
Schools became a military judge in July 2014. Parrella, a 1998 Arizona State University College of Law graduate, took the course to become a judge in April 2015. The year before he went to judge’s school, he did a one-year assignment as a Marine Corps fellow at the Department of Justice’s National Security Division where, public records show, he helped prosecute an Islamic State case in Texas.
Both Schools and Parrella had joined service by the time of the 9/11 attacks.
Pohl, 67, leaves at a consequential time. It will be up to Parrella to decide whether to overturn one of Pohl’s most significant rulings in the case: His Aug. 17 order to exclude 2006 and 2007 interrogations by the FBI of the alleged conspirators, most conducted soon after their transfer from secret CIA prisons to the U.S. military base in Cuba.
In a filing just last week, prosecutors said Pohl had excluded some of the strongest evidence in the conspiracy case — FBI agents’ descriptions of the men ostensibly confessing to their roles in the 9/11 conspiracy. Pohl ruled that prosecution and spy agency prohibitions on defense teams questioning former CIA black site workers put the defense attorneys at an unfair disadvantage.
A key question confronting the case is whether Secretary of Defense Jim Mattis’ decision Feb. 5 to fire the overseer of military commissions, Convening Authority Harvey Rishikof, at a time when Rishikof was exploring plea deals, constituted unlawful influence. A plea deal would have removed the death penalty from the trial.
Aside from the henna-bearded Mohammed, who sits at Table One in the five-defendant courtroom, Pohl has been a looming, consistent presence in the war court case that has gone through fits and spurts — and has approved all the substitutes and redactions of secret evidence in the case and read, if not ruled on, hundreds of pretrial motions.
Pohl had scheduled the next 9/11 pretrial hearing for Sept. 10-14. With the reassignment, it will be up to Parrella to decide whether to keep that date.
Pohl has presided at the 9/11 trial since the May 2012 arraignment. He has served as the chief judge for military commissions, the authority for assigning other judges to cases. With his resignation, Mattis or someone he designates will have to pick Pohl’s successor as the chief judge for military commissions.
Parrella’s appointment did not come as a complete surprise in U.S. Marine circles. While presiding in a court-martial case at Camp Lejeune on Aug. 3, according to those who were present, Parrella announced in open court that he was going to be detailed to a Guantánamo military commissions case with the initials “KSM.” KSM is the initials of the lead defendant, Mohammed, as well as the shorthand for how legal briefs are labeled on the war court website.