http://www.nytimes.com/2016/05/12/us/evidence-in-khalid-shaikh-mohammed-9-11-case.html?mabReward=A4&action=click&pgtype=Homepage®ion=CColumn&module=Recommendation&src=rechp&WT.nav=RecEngine Judge Allowed Destruction of Evidence in 9/11 Case, Defense Says
WASHINGTON — The government has secretly destroyed evidence that is relevant to the death penalty trial of the five Guantánamo Bay detainees accused of aiding the terrorist attacks of Sept. 11, 2001, two defense lawyers for Khalid Shaikh Mohammed, the self-described architect of those attacks, said on Wednesday. The dispute appears likely to add a new chapter to the problems that have plagued the effort to bring the case before a military commission, which has been bogged down for years in pretrial proceedings. The defense lawyers are asking for the judge overseeing the case, Col. James Pohl of the Army, and the prosecution team, led by Brig. Gen. Mark S. Martins, to be recused from further involvement, and for the case to be shut down. The defense lawyers, David Nevin and Maj. Derek Poteet, said they were not permitted to say what the evidence was, or what exactly had happened to it, because the underlying issue was classified. But Mr. Nevin characterized it as “favorable” to the defendants, and Major Poteet said it was “important or even critical” to an eventual trial, including in terms of weighing what sort of punishment should be imposed if the defendants were convicted. Major Poteet also said the defense was informed in February that Colonel Pohl had approved a plan by the government to give the defendants a government-prepared “summary of a substitute” for the original, classified evidence that is no longer available. He provided no further details about what the alternative evidence consisted of. [image: Description: cid:[email protected]] Col. James Pohl of the Army is the judge overseeing the death penalty trial of the five Guantánamo Bay detainees accused of aiding the terrorist attacks of Sept. 11, 2001. Taylor Jones/Getty Images Still, the defense lawyers offered several clues from the unclassified portion of their filing, which they submitted on Tuesday but is not yet publicly available. They said the issue traced back to several years ago, when the question of the evidence’s fate first arose. Colonel Pohl eventually issued an public order, at the defense’s request, requiring it to be preserved, and they thought that had settled the matter. But they learned in February, they said, that about 20 months earlier, and without their knowledge, prosecutors had obtained from Colonel Pohl a secret order that reversed his previous decision. By the time they found out, the government had already destroyed the evidence, giving them no opportunity to challenge the move. Continue reading the main story Major Poteet said their motion portrayed this event as having created at least the appearance of Colonel Pohl “colluding with the government,” damaging the defendants’ right to a fair trial. He also said the government had said it would not allow the defense access to any other evidence of a similar kind, and would instead use similar substitutions. The dispute may center on one of the overseas facilities where the Central Intelligence Agency formerly ran a “black site” prison where Mr. Mohammed was tortured before his transfer to the military-run prison at Guantánamo Bay, Cuba, in 2006. The defense strategy has been to argue that their clients’ lives should be spared as mitigation for the government’s abuses of them in the black-site prisons, which were reportedly in Thailand, Poland, Romania, Lithuania and Afghanistan, and at a secret site at the Guantánamo base. In September 2012, defense lawyers submitted a joint motion <http://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20%28AE080%29.pdf> to require the government to “preserve any existing evidence of any overseas detention facility used to imprison any of the defendants or potential witnesses in this case, including maintaining any structure or fixture in its current state.” “Given the realities of this case, it is certain that what occurred during that detention will be at issue at the pretrial, trial and (if necessary) sentencing phases of these proceedings,” the motion said. “The conditions under which the accused were detained will be highly significant to the defense sentencing case.” On Dec. 19, 2013, over the government’s objections <http://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20%28AE080A%29.pdf>, Colonel Pohl issued a public order <http://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20%28AE080G%29.pdf> granting the request. Asked whether what they had learned was that the government had later secretly obtained Colonel Pohl’s permission to alter one or more of the C.I.A. facilities that had hosted a black-site prison, the defense lawyers said they could not comment. Asked the same question, Dean Boyd, a C.I.A. spokesman, said the agency “has complied with all applicable preservation orders in this matter.” Cmdr. Gary Ross, a spokesman for the Office of Military Commissions, said, “It would be inappropriate to comment on a document not yet released to the public.” __._,_.___ ------------------------------ Posted by: "Beowulf" <[email protected]> ------------------------------ Visit Your Group <https://groups.yahoo.com/neo/groups/grendelreport/info;_ylc=X3oDMTJmb2RtZjF0BF9TAzk3MzU5NzE0BGdycElkAzIwMTk0ODA2BGdycHNwSWQDMTcwNTMyMzY2NwRzZWMDdnRsBHNsawN2Z2hwBHN0aW1lAzE0NjMzNDkwMDY-> [image: Yahoo! 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