The judge overseeing the premiere military tribunal at Guantánamo Bay effectively conspired with the prosecution to destroy evidence relevant to defending the accused architect of the 9/11 attacks, according to a scathing court document.



Army Col James Pohl, who this week at Guantánamo is presiding over a resumption of pretrial hearings in the already troubled case, “in concert with the prosecution, manipulated secret proceedings and the use of secret orders”, the document alleges, preventing Khalid Sheikh Mohammed’s defense team from learning Pohl had permitted the Obama administration to destroy the evidence.

The accusation comes in a 10 May defense filing that the military commissions have recently unsealed. It contains significant detail about an episode that Mohammed’s attorneys say has permanently tainted the most high-profile test of the US’s post-9/11 turn toward military justice for terrorism cases.

“First they tell us they will not show us the evidence, but they will show our lawyers. Now, they don’t even show the lawyers. Why don’t they just kill us?” Mohammed, who faces execution, is quoted as saying in the filing.

Mohammed’s attorneys argue that the secret maneuvering left them unable to challenge the destruction of evidence. They contend that the case ought to be scrapped entirely. Their brief quotes a famous 1932 supreme court case, Powell v Alabama, to argue that failing to provide the defense access to evidence “would be little short of judicial murder”.

“Whatever legitimate national security interests might purportedly justify the near-Star Chamber proceedings that have riven this case, there can be no articulable excuse for so clearly misleading Mr. Mohammed’s counsel and preventing them from seeking remedies to prevent the destruction of crucial evidence,” they continued.

The filing does not specify what the destroyed evidence was. Classified annexes accompanying the filing remain withheld.

The episode 'call[s] into question Judge Pohl’s impartiality' Court document

But on 19 December 2013, Pohl ordered the US to “ensure the preservation of any overseas detention facilities still within the control of the United States” – a reference to the secret “black site” prisons where the CIA and its allies tortured Mohammed and his co-defendants.

According to the defense filing, six months after Pohl issued an evidence-preservation order at the defense’s behest and over the prosecution’s objections, the judge “authorized the government to destroy the evidence in question”. Pohl’s reversal of course was “the result of secret communications between the government and Judge Pohl, which he conducted without the knowledge of defense counsel”, the motion asserts.

That order, issued exclusively to the prosecution, carried with it a direction to provide the defense with a “redacted version”. But Pohl “did not actually instruct the prosecution to proffer any proposed redactions of the order until 18 months after granting the government permission to destroy the evidence, and over a year after it was apparently actually destroyed”, the defense team claims.

“[B]elatedly,” Mohammed’s attorneys say, the commission gave them a version of Pohl’s destruction order “by attaching it to another secret order,” and concluding, “without benefit of ever having examined the actual evidence, that the government’s proffer or a summary of a substitute for the original (now destroyed) evidence provided the defense with an adequate alternative to access to the evidence in question.”

Destroying the evidence in secret while permitting the defense to believe it had been preserved has “substantially gutted” the credibility of the military commission and “irreparably harmed” Mohammed’s ability to defend himself in a death-penalty case, the lawyers say. The episode “call[s] into question Judge Pohl’s impartiality”.

On 24 May, the prosecution led by army Brig Gen Mark Martins filed a response to the motion, but it will remain unavailable to the public for at least another two weeks, according to military commissions rules. Martins declined earlier this month to respond to Mohammed’s attorneys.

Attorneys for one of Mohammed’s co-defendants, Mustafa al-Hasawi, informed the commission that same day that they “reasonably expect to disclose” classified evidence related to the episode in an unscheduled oral argument.

This may well be the straw that breaks the camel’s back in underscoring the unviability of the military commissions Karen Greenberg

Once proposed to provide swift justice for the 9/11 attacks, Mohammed’s military commission has yet to proceed to trial four years after the Pentagon announced charges against him. Mohammed and his co-defendants have clashed with the prosecution for years over access to evidence and standards of fairness, to include an ongoing controversy about the FBI spying on the defense attorneys. Pretrial hearings resume this week, with Pohl still presiding.

The current military commission is the second Mohammed and his co-defendants face. They were initially charged in 2008, but that commission was voided after Barack Obama launched an ultimately doomed 2010 effort to move the trial to civilian court. In the interim, Obama and Congress passed an overhaul of the military commissions in an effort to bolster their credibility against the charge of ad-hoc justice.

Karen Greenberg, the director of Fordham University Law School’s Center on National Security, said the allegation of collusion to destroy evidence could prove to be a tipping point for the military tribunals more broadly.

“This may well be the straw that breaks the camel’s back in underscoring the unviability of the military commissions,” Greenberg said.

“Remember, a main reason they couldn’t have this [trial] in federal court was that it would have been such a circus. And now you have a full-blown circus, with judicial and every other kind of misstepping.”