Air Force Col. Matthew McCall presided over his first session this week. Courtroom sketch by William J. Hennessy Jr. / CourtroomArt.com.
Guantanamo Naval Base, Cuba – The largest criminal case in U.S. history resumed this week with Air Force Col. Matthew McCall taking the bench – the most recent military judge tapped to helm proceedings that are set to eclipse the 20th anniversary of the Sept. 11, 2001, terrorist attacks for which the Guantanamo Bay tribunals were created.
The government is seeking the death penalty against the five detainees accused of planning the 9/11 operation that killed nearly 3,000 people at the World Trade Center towers, the Pentagon and in a field outside Shanksville, Pa., where United Airlines Flight 93 crashed.
The complicated and unwieldy military commission proceedings date to the May 2012 arraignment, and have been stalled by an unprecedented array of obstacles, lately the Covid-19 pandemic. This week’s hearings are the first in the case since February 2020.
The task of moving the proceedings towards a jury trial now rests with McCall, who was reappointed to the case last month. Defense teams and prosecutors began questioning McCall Tuesday about possible biases or conflicts of interest. McCall asked attorneys to remain masked during the session but removed his mask during voir dire so that the parties could view his "facial reactions" when answering.
The lead attorney for accused 9/11 mastermind Khalid Shaikh Mohammad, Gary Sowards, was the first to inquire about the judge's suitability to hear the historic matter. At one point, McCall recollected that a predecessor of his on the case thought he would be “a good fit” because of his ability to be patient.
“I think this case requires some patience, right?” McCall said.
As if on cue, Tuesday's long-awaited hearing was cut short when prosecutor Clay Trivett announced that an appellate ruling had come down from the Court of Military Commission Review related to McCall’s appointment. After a brief recess, McCall postponed proceedings until Wednesday morning so that the parties could study the ruling.
The number of judges who have presided over the case is a matter of potential confusion and some debate. Army Col. James Pohl was the first and longest serving judge on the case from the 2012 arraignment through August 2018. Marine Col. Keith Parrella took over for less than a year, until June 2019, an expected departure as his next position for the Marines had been planned prior to his appointment.
The third judge appointed, Air Force Col. Shane Cohen, had been expected to stay on the case for the remainder of pretrial proceedings or longer, but he retired in March 2020 for family reasons. The chief judge of the military commissions, Army Col. Douglas Watkins, appointed himself as judge while he sought a replacement. Late last summer, Watkins appointed Marine Col. Stephen Keane to the case, but he recused himself two weeks later due to potential conflicts of interest.
Watkins appointed McCall as the next judge in October. In response, the government filed a notice pointing out that McCall did not have the two years of judicial experience required by commission rules. Watkins, who thought he might have the authority to waive the two-year requirement, sought input from the Office of the Secretary of Defense, whose officials determined he did not have such authority. Watkins decided to reappoint himself as the 9/11 judge and remained so for much of 2021.
As he neared retirement this summer, Watkins appointed Army Col. Lanny Acosta to replace him as chief judge. Acosta served briefly as a placeholder on the 9/11 case before appointing McCall again last month after he completed the two-year threshold requirement in his position as a military judge with the Air Force Trial Judiciary at Joint Base Langley-Eustis, in Virginia.
The Court of Military Commission Review ruling came in response to defense objections to Watkins’ communications with Pentagon officials over the two-year requirement issue. They argued that it constituted “unlawful influence” by the Deputy Secretary of Defense to provide guidance that Watkins ultimately followed.
In Tuesday’s ruling, the commissions review court disagreed and declined to vacate rulings made by Watkins after he reappointed himself as judge on the case. The court did vacate the limited number of rulings that McCall made in his brief first stint on the case last fall. McCall highlighted this aspect of the ruling Tuesday morning when deciding to recess for a full day.
Tuesday's decision also leaves in place a May ruling by Watkins allowing the government to dismantle the remainder of a foreign black site the defense teams had hoped to have preserved. Alka Pradhan, a lawyer for Ammar al Baluchi, said after court that defense lawyers planned to file a writ of mandamus to the D.C. Circuit Court of Appeals, which is the appellate court above the Court of Military Commission Review, in another effort to prevent its destruction or seek other remedies if the site is unavailable. The government has previously prevailed at trial and appellate levels with its contention that video and photographic substitute evidence of the site is adequate.
If McCall remains, as expected for now, he will be called upon to guide the proceedings through their most important phase to date. Set to resume is the years-long battle over evidence and witnesses associated with a CIA interrogation program that subjected the five defendants to a series of abuses and isolation before they were sent to Guantanamo Bay in 2006. Still pending after nine years of hearings are rulings on the admissibility of the government's key evidence.
Defense lawyers claim past torture by the CIA should render inadmissible the statements the defendants made to FBI agents on Guantanamo in 2007, about four months after their arrival from CIA black sites. Before the pandemic shut down the hearings, defense lawyers were in the midst of witness testimony supporting the suppression of those statements.
One key witness was Dr. James Mitchell, the contract psychologist who designed and led the CIA program. He testified in January 2020 to the numerous abuses he inflicted on detainees, most notably Mohammad, who sits at the front defense table in the courtroom. FBI agents who took the stand in prior sessions acknowledged participating in black site interrogations by sending in questions for CIA personnel to ask detainees. They also testified to reviewing information from the black sites prior to traveling to Guantanamo Bay in 2007. Lawyers believe this level of CIA-FBI coordination undercuts claims that the FBI statements were “clean” and separate from the earlier black-site interrogations.
The government contends that the 2007 statements should be admissible because the FBI did not use any coercive techniques during the sessions and instead engaged in traditional rapport-building exchanges with the detainees. The FBI agents who testified in 2019 said that defendants participated voluntarily, did not exhibit duress and were told they would never be returned to CIA custody, no matter the content of their answers or level of participation.
The team for al Baluchi, who is Mohammad’s nephew, was the first to move forward with its motion to suppress, though lawyers for the other teams have questioned witnesses – including Mitchell – with overlapping relevance to multiple defendants.
James Connell, the lead lawyer for al Baluchi, is expected to resume calling witnesses during the three-week hearing scheduled for November. Connell forecast in a pre-hearing meeting with reporters that the pretrial phase could extend another two years. The Biden administration has said it plans to close the detention facility but has moved forward with commissions in the meantime, even arraigning a trio of defendants in a new case in late August.
A 12-member panel of military officers will eventually decide the fate of the five 9/11 defendants, who also include Walid bin Attash, Ramzi bin al Shibh and Mustafa al Hawsawi. Jury selection alone could last two to three months, court officials have said.
The bin al Shibh team presents another potential quandary for McCall. James Harrington, the longtime "learned" counsel for bin al Shibh, stepped aside from his role as lead lawyer in February 2020 due to health reasons. His replacement, David Bruck, said in a May court filing that he would not be ready for pretrial proceedings starting in September. Bruck met his client for the first time earlier this summer, after the Naval Base lifted quarantine requirements for vaccinated visitors.
In a brief exchange with reporters on Sunday, Bruck declined to answer a question on his timeframe for being ready or if his position had changed. Bruck said that his team has been somewhat preoccupied with the continued torture that bin al Shibh claims to suffer at the detention facility – a longstanding issue that Harrington litigated over several years. Bruck said that his client believes a remote force is subjecting him to noises, vibrations and stabbing sensations, all of which contribute to an ongoing sleep deprivation that is closing in on its second decade.
“The torture program for him never ended, and in fact it’s getting worse,” Bruck said. He added that “job one” for his team is to “solve the mystery” of what’s happening to his client at the detention camp.
Even before the Court of Military Commission Review ruling derailed Tuesday’s proceedings, the process encountered a complication with the absence of Walter Ruiz, the lead lawyer for defendant al Hawsawi. Ruiz had to depart Guantanamo Bay Tuesday for personal reasons. Defendants are statutorily required to have representation by “learned counsel” experienced in handling death penalty defenses. Al Hawsawi's team will have lawyers in court, but McCall has allowed the team to defer voir dire.
On Wednesday, the four other defense teams and prosecutor Trivett completed their questioning of McCall, who gave them until Friday morning to decide whether to challenge his appointment. McCall said on several occasions that he would bolster his limited judicial experience by studying capital case law and that he would not feel pressured to move the case quickly to a trial.
Under questioning by Sowards, McCall said that he knew the past treatment of the defendants by the CIA was “an issue” in the case and that he had not read the Senate’s summary report on the disbanded interrogation program.
Sowards asked the judge if he could keep an open mind if asked to dismiss the case against Mohammad for “outrageous government conduct" that the team plans to argue in the future.
“No hesitation if I’m convinced,” McCall said.
On behalf of bin al Shibh, who is accused of being a key facilitator of the 9/11 attacks, Bruck touched on a similar theme. In a brief voir dire, he said that the torture experienced by the defendants might make a prosecution impossible.
“Can you remain open to that possibility?” Bruck asked.
The judge said that he could. Bruck pressed him about his chances of remaining free of pressure, given that he will likely either be “lionized” for guiding the case through its conclusion or taking the blame if it once again ends up “in the ditch.”
“Great question,” McCall responded. The judge, who is 50, said that his “military career is basically set” and that he does not want a promotion to general. He pledged to have “tunnel vision” in his role.
Trivett criticized the defense teams for working into their questions numerous soliloquies and factual and legal assertions that the government disputes. He said he only objected three times because he recognized the judge seemed eager to answer as many questions as possible.
“I think I could have objected 70 times,” Trivett said.
The prosecutor confirmed with McCall that his first court martial as an Air Force judge began on Aug. 19, 2019, and that his reappointment to the 9/11 case came Aug. 20, 2021 – marking two years and one day.
On Friday, the prosecution did not seek to challenge McCall assuming control of the case. Three of the four defense teams who participated in voir dire did present objections, though with a degree of reluctance given their appreciation for McCall's candor, demeanor and judicial temperament.
Sowards told McCall that the extra day to review voir dire led his team to move for the judge’s disqualification. In doing so, Sowards focused on McCall’s decision to agree to be removed from the case in December 2020 after the government objected to his appointment for not yet having two years on the bench; the recusal took place before defense teams could file motions in opposition to the government’s. Sowards described that sequence of events as happening “extra-judicially,” though he said he otherwise would have not challenged his reappointment to the case.
Cheryl Bormann, the lead attorney for bin Attash, told McCall that her challenge was based on his decision to hold hearings before better learning the record of the case and capital case law. Bruck joined Sowards and Bormann in their objections. Connell told the judge he was not moving to disqualify him from the case.
McCall said he would later rule on the challenges; lawyers did not expect him to recuse himself based on the objections made Friday. The judge then moved into oral arguments on a pending defense motion to compel additional discovery of evidence related to CIA black site interrogations.
About the author: John Ryan (email@example.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.