The judge in charge of military tribunals at Guantánamo Bay allegedly colluded with prosecutors to hide evidence that supported the defense of suspected 9/11 architect Khalid Sheikh Mohammed, "irreparably" harming his case, according to a court document obtained by the Guardian on Tuesday.
The accusation could be the impetus to reform the highly controversial tribunals at the U.S. military prison in Cuba altogether, according to Karen Greenberg, the director of Fordham University Law School's Center on National Security.
"This may well be the straw that breaks the camel's back in underscoring the unviability of the military commissions," Greenberg told the Guardian.
According to the recently unsealed defense filing, Army Colonel James Pohl "in concert with the prosecution, manipulated secret proceedings and the use of secret orders."
Pohl's actions prevented Mohammed's attorneys from learning that evidence in his defense had been destroyed, the document alleges.
"First they tell us they will not show us the evidence, but they will show our lawyers. Now, they don't even show the lawyers," Mohammed is quoted in the filing as saying. "Why don't they just kill us?"
It is unclear what evidence Pohl and the prosecutors hid. However, as the Guardian reports:
[O]n 19 December 2013, Pohl ordered the US to “ensure the preservation of any overseas detention facilities still within the control of the United States” – a reference to the secret “black site” prisons where the CIA and its allies tortured Mohammed and his co-defendants.
According to the defense filing, six months after Pohl issued an evidence-preservation order at the defense’s behest and over the prosecution’s objections, the judge “authorized the government to destroy the evidence in question”. Pohl’s reversal of course was “the result of secret communications between the government and Judge Pohl, which he conducted without the knowledge of defense counsel”, the motion asserts.
Mohammed's attorneys say the prosecution "belatedly" gave them a version of Pohl's destruction order "by attaching it to another secret order," and said that "without benefit of ever having examined the actual evidence, that the government’s proffer or a summary of a substitute for the original (now destroyed) evidence provided the defense with an adequate alternative to access to the evidence in question."
The destruction of the evidence "irreparably harmed" Mohammed's defense and "call[s] into question Judge Pohl's impartiality," his attorneys said.
The Guardian continues:
The current military commission is the second Mohammed and his co-defendants face. They were initially charged in 2008, but that commission was voided after Barack Obama launched an ultimately doomed 2010 effort to move the trial to civilian court. In the interim, Obama and Congress passed an overhaul of the military commissions in an effort to bolster their credibility against the charge of ad-hoc justice.
Greenberg added, "Remember, a main reason they couldn't have this [trial] in federal court was that it would have been such a circus. And now you have a full-blown circus, with judicial and every other kind of misstepping."