GUANTANAMO BAY, Cuba — The first day of court for the 9/11 proceedings at Guantanamo Bay in more than 500 days was cut short on Tuesday when the U.S. Court of Military Commission Review, which oversees the island war court, handed down a ruling that shot down defense claims the Pentagon had unlawfully influenced decisions on which judge should preside over the case.
Air Force Col. Matthew McCall took over as a judge on Tuesday, making him the fourth judge to preside over hearings in this iteration of the 9/11 case. At issue was a saga stemming from last year, when McCall served a short stint as a judge before he was removed for not having two years of military experience on the bench at the time. McCall now has that experience.
Then-chief trial judge of the Military Commissions Trial Judiciary, Army Col. Douglas Watkins, picked McCall for the 9/11 case gig last October, but the prosecution argued McCall did not meet the proper requirements. Watkins asked the Pentagon for clarification, and McCall says he agreed to recuse himself, with Watkins removing McCall and temporarily putting himself in charge of the case.
McCall passed the two-year milestone this summer and was reassigned shortly after. Defense lawyers had asked the military appeals court to intervene, arguing the Defense Department exercised undue influence over the judicial selections, but the review court disagreed on Tuesday.
After McCall’s selection last year, the prosecution pointed to the military commission regulations and said that it didn’t look like McCall “possesses the requisite qualifications.”
Watkins wrote to the secretary of defense in October, saying the war court “must be the authority to waive the two-year experience requirement when a military judge is otherwise qualified and certified.” But Deputy Secretary of Defense David Norquist concluded in November that a waiver “does not rest with you or members of the trial judiciary” and argued the requirement is a “reasonable and necessary requirement.”
The military appeals court ruled Tuesday that Norquist “did not act improperly, and he did not unlawfully influence” the decisions of Watkins or other military judges.
After Watkins removed McCall from the case, he ruled earlier this year the government could move forward with the destruction of a CIA black site that the defense argued was evidence.
In the two decades since 19 al Qaeda terrorists hijacked and crashed planes into the World Trade Center buildings, the Pentagon, and a field near Shanksville, Pennsylvania, killing nearly 3,000 people, the five men believed to be responsible for the planning and execution of the plot have yet to stand trial. The key question of whether confessions obtained by the FBI after their CIA custody should be admissible remains unresolved.
Khalid Sheikh Mohammed, dubbed “KSM” and described as “the principal architect of the 9/11 attacks” in the 9/11 Commission Report, was a close ally of Osama bin Laden and is being tried alongside four co-defendants: his nephew, Ammar Baluchi, alleged hijacking trainer Walid bin Attash, 9/11 facilitator Ramzi bin Shibh, and al Qaeda money man Mustafa Hawsawi.
The defense teams argue the black site issue goes back to 2012 when the U.S. government wanted to destroy a black site known publicly as “Site A” — likely in Afghanistan, where it is believed numerous detainees were held. The government filed an order to destroy the site, and it was preliminarily approved in 2014, with years of litigation following. Watkins greenlit the destruction of the site in 2021 after McCall left the case. Baluchi’s team said they would now appeal this to the U.S. Court of Appeals for the District of Columbia Circuit.
“The larger issue is that this is one more example of the Department of Defense’s unlawful influence over the judiciary process. Judges are supposed to be independent, to make their own decisions on legal issues,” Jay Connell, a lawyer for KSM’s nephew, told reporters on Tuesday. “This is yet one more example of the Pentagon telling military commission judges how to decide issues — in this case, how to decide the qualifications of Judge McCall.”
Connell added: “The prosecution asked for permission for the United States government to destroy the black site. We have fought that for years now, and during the time of the temporary judge, he made the final decision on that matter.”
Watkins had ruled in May that the prosecution had given him “compelling practical reasons, unrelated to this litigation, for the dismantling of Site A.”
The New York Times reported in early September a CIA compound that helped with evacuations during the Taliban takeover this summer had been destroyed, including the part thought to have been a CIA black site.
McCall is a graduate of the University of Hawaii Law School, with one of his many stints at U.S. bases and installations worldwide being a trial attorney at the Central Criminal Court of Iraq in Baghdad.
McCall said Tuesday he believed he was “certified and qualified” to preside over the case and that “I’m not aware of any grounds for challenge against me.” He said that “I closed down my social media when I was detailed to this case” and didn’t think he had any conflicts of interest.
Right before the military appeals court ruling suddenly interrupted the court, KSM’s lawyer Gary Sowards, who previously represented “Unabomber” Ted Kaczynski, began questioning McCall, dubbing him “the Grover Cleveland of our judges.” That questioning will resume Wednesday morning.