Lawyer claims repeated assertions from U.S. administration that the men will be found guilty has damaged any potential jury pool.
The case against five men accused of plotting the September 11, 2001 attacks is tainted because President Barack Obama and other senior officials have already deemed them guilty, an attorney said Thursday.
Walter Ruiz, who represents Mustapha al-Hawsawi of Saudi Arabia, spoke while arguing a joint defense motion—first filed in 2012—to dismiss the case, highlighting the glacially slow pace of proceedings against the “9/11 Five.”
Ruiz told military judge Colonel James Pohl in a Guantanamo Bay courtroom that members of Obama’s administration, including the president himself, have repeatedly asserted to the U.S. public that the men would be found guilty and sentenced to death. Such “unlawful influence” taints any potential jury pool, Ruiz said.
“We’ll never quite get away from the public comments from people in the position of power,” Ruiz told the judge as he presented a slideshow featuring a string of officials opining about the case.
The so-called 9/11 Five are alleged mastermind Khalid Sheikh Mohammed, Walid bin Attash and Ramzi Binalshibh of Yemen, Ali Abd al-Aziz Ali—Mohammed’s nephew—and al-Hawsawi. “Khalid Sheikh Mohammed is going to meet justice and he’s going to meet his maker,” Obama’s then press secretary Robert Gibbs said in 2010, according to a slide Ruiz showed the court. “He will be brought to justice and he’s likely to be executed for the heinous crimes that he committed in killing and masterminding the killing of 3,000 Americans. That you can be sure of.”
Fourteen years after about 3,000 people died in New York, at the Pentagon and in a field in Pennsylvania, the chances of the case being dismissed are remote. Obama tried to prosecute the suspects in federal court in New York in 2009 but the move proved too controversial and charges were reinstated in military court.
The case has slowed to a crawl owing to a myriad of issues stemming from the CIA torture of the detainees when they were first taken into custody.
“There’s fundamental questions about whether the rules of this tribunal are calculated to produce convictions rather than ensure a fair trial,” said Naureen Shah, a director with Amnesty International USA. Further slowing matters is the bizarre reality that the court must travel to the defendants, and not the other way round.
Every time a hearing takes place in Guantanamo, the military must fly in the judge, lawyers and other court workers.
Al-Hawsawi was not in the courtroom Thursday. On Tuesday, he sat on a white cushion throughout proceedings. He claims this is because he suffered damage to his rectum during aggressive CIA body cavity searches and has been denied surgery to correct it.
While dismissal of the case is a long shot, Ruiz hopes the “unlawful influence” motion might at least persuade Pohl to split Hawsawi’s prosecution off into a separate case, or take the death penalty off the table for his client.
The five men are appearing in a Guantanamo Bay military court this week for hearings ahead of an eventual trial. The hearings have been dominated by the issue of whether the five accused, who are strict Muslims, should be handled by female military guards as they are escorted to the courtroom.
Judge Pohl on Thursday declined a prosecution request to lift a January order barring the use of women guards.
Obama wants to close the prison at Guantanamo but has been frustrated by a reluctant Congress. The facility has housed about 780 detainees since the start of 2002. Currently, 107 remain.