Defense Counsel: 9/11 Case Halted, Pending Change in Judges' Assignment Rule

WASHINGTON, DC-Today, a military commissions judge ordered a halt to the 9/11 case at Guantanamo Bay because Department of Defense officials tried to unlawfully influence the military commissions judiciary.  The order, known as "abatement," means that no further proceedings will take place until the DOD rescinds a controversial order for military commissions judges to move to Guantanamo. On December 9, 2014, Major General Vaughn Ary, U.S.M.C. (Ret.), the "Convening Authority" in charge of the military commissions at Guantanamo, sent a memorandum to Deputy Secretary of Defense Robert Work asking him to require military commission judges to relocate to Guantanamo Bay "to accelerate the pace of litigation."  On January 7, 2015, the Deputy Secretary of Defense issued the rule change requested by the MajGen Ary. On January 30, defendants in the 9/11 case filed a motion to dismiss the case for unlawful influence over the military judiciary.  "Unlawful influence, an issue in some military cases with no direct analogue in the civilian courts, occurs when a government official attempts to influence the action of a military judge," said Lt Col Sterling Thomas, a U.S. Air Force Judge Advocate General detailed to represent Ammar al Baluchi in the military commission.  In their motion, the defendants argued that the rule change was increased "the personal cost to military judges of time between hearings, as the military judges must spend that time at Guantanamo Bay rather than their current place of residence." On February 25, 2015, Chief Judge Colonel James Pohl, U.S. Army, ruled that the actions by the Deputy Secretary of Defense, on the recommendations of the Convening Authority, constitute at least the appearance of an unlawful attempt to pressure the military judge to accelerate the pace of litigation and an improper attempt to usurp judicial discretion, thereby compromising the independence of the military judge.  Military Judge Pohl ordered "abatement" of the case until the rule change is rescinded by the proper authority.   The prosecution has five days to appeal the new order, if it chooses to do so. "The military commissions have been plagued by intrusions by the FBI, CIA, and now senior DOD officials," said James Connell, civilian attorney for al Baluchi.  "It would not surprise me if the administration seizes on this latest problem as an excuse to move the cases back to the civilian courts."  In April 2014, the military commission learned that the FBI had recruited a defense team member as a confidential informant, and earlier this month, a temporary courtroom interpreter was revealed as a former CIA contractor. A public version of the defendants' motion (AE343) is available at www.gitmowatch.com/unlawful-influence-motion.  Today's order is still under seal.