Defence lawyers raise concerns over potential conflicts of interest and bias but judge says hearings will move ahead.

Guantanamo Bay, Cuba – As the American flag lowered to half staff at dawn on Guantanamo Bay Naval Base — home of the controversial detention camp — to commemorate the 17th anniversary of the September 11, 2001 attacks, the US military courtroom a short walk away sat empty.

But two hours later, it would fill with dozens of lawyers deliberating the events of 17 years earlier and their fallout, including torture and indefinite detention without trial at the prison next door. Some wear suits, some wear military uniforms, some wear abayas. But all await a big decision: Will the new military judge recuse himself?

One day prior, defence lawyers representing Khalid Sheikh Mohammed, who is accused of masterminding the September 11 attacks, and alleged co-conspirators, called for recusal of a newly appointed judge over possible conflict of interest and bias.

Marine Colonel Keith A Parrella, 44, took over the military court late last month from Army Colonel James L Pohl — who had overseen the case since it began six years ago — after Pohl’s sudden retirement.

Mohammed’s lawyer, David Nevin, on Monday cited Parrella’s lack of relevant experience or familiarity with the case, potential conflicts of interest from previously serving in the counterterrorism section of the US Department of Justice and a probable new military posting starting next year as sufficient grounds for the judge’s dismissal.

Lawyers for two other defendants joined the motion for the judge’s recusal, with one arguing Parrella revealed implicit bias by admitting to “shock and anger” on 9/11, combined with his military service.

In his opening statement at the hearing, Parrella, who only has slightly more than two years experience as a military judge and has not presided over any capital cases, seemed unfazed by the criticisms.

“I’m qualified in accordance with (the military’s requirements), and we’re moving ahead,” he said, later agreeing to consider their motion overnight.

But on Tuesday, Parrella quickly dismissed the allegations against him and ruled against the defence’s motion for his recusal, saying that despite a day of questioning, the defence showed no evidence proving him unqualified.

Parrella argued that his time at the Department of Justice did not impact his impartiality, because he did not have any professional interaction the lawyers assigned to this case or any involvement with military commissions.

“I do not have a personal bias toward any party,” Parrella said.

The five men accused of planning the attacks, including Mohammed, have yet to face trial.

Slow pace of trial

Since the suspects were arraigned in 2012, pre-trial hearings have progressed slowly and no trial date has been set. If the suspects are convicted of aiding the 9/11 hijackers, they could face the death penalty.

Parrella has inherited more than 20,000 pages of transcripts, hundreds of unaddressed motions and a classified record of unknown size in the complex case.

The defence particularly expressed concern over a fellowship Parrella completed in 2014-15 with the Department of Justice’s Counterterrorism Section, a division in which several lawyers for the prosecution served.

“Connection to a party with the litigation is a classic reason why judges recuse themselves,” James G Connell III, the lawyer for one of the accused, told reporters. “I would feel much less concern if he hadn’t worked for the same specific unit that much of the prosecution worked for.”

Connell did not join Nevin’s motion for Parrella’s dismissal but requested time for a further investigation into the judge’s past.

Despite rejecting the defence’s motion he step down, Parrella said he will allow new evidence for reconsideration of potential bias or impartiality to be introduced.

Defence lawyers’ other primary worry is that Parrella was selected for an embassy security position with the Marine Corps beginning in the summer of 2019 and announced his intention to accept the posting.

That means he’ll likely preside over the hearings for less than a year before being replaced by another new judge, adding further delay to the long-running case.