JURIST - Paper Chase: US military judge denies defense motions in 9/11, USS Cole trials

[JURIST] The chief US military judge at Guantanamo Bay [JURIST backgrounder] on Thursday denied defense motions filed in both the 9/11 military commission trial and the 2000 USS Cole [Navy backgrounder] bombing trial. Defense counsel for accused 9/11 [JURIST backgrounder] conspirators, including Khalid Shaikh Mohammed [JURIST news archive], filed a motion requesting that the court find that the US constitution was "presumed to apply" in the proceedings, and that the prosecution must bear the burden of proving that any particular provision did not apply. Colonel James Pohl ruled [order, PDF] that the request presented a nonjusticiable issue because the Commission cannot rule on hypothetical legal questions that do not aver "real and substantial controversy admitting of specific relief" relating to actual historical fact. In a separate case, counsel for accused USS Cole bomber, Abd al-Rahim al-Nashiri [JURIST news archive] filed a motion to dismiss alleged violations of the Military Commissions Act [text, PDF] in August 2012 on grounds that the bombing occurred "prior to the commencement of hostilities" between the US and al Qaeda [JURIST news archive]. Pohl denied the motion [order, PDF] and found that US political branches have made determinations that such hostilities did exist prior to 9/11 and that these determinations are owed judicial deference to the extent that they present questions of law. However, the factual burden required to prove whether or not hostilities coincided with the USS Cole bombing is to remain with the prosecution. The prosecution is seeking the death penalty for all five accused 9/11 conspirators, and alleged USS Cole bomber, Abd al-Rahim al-Nashiri.

Controversy continues to surround Guantanamo military trials. Last month a federal judge affirmed the denial of a habeas petition [JURIST report] for a Guantanamo detainee. Earlier that month a US military judge upheld [JURIST report] a request to censor 9/11 conspirators' testimony. In September a judge for the US District Court for the District of Columbia rejected [JURIST report] new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. The Department of Defense announced in 2011 that it had sworn charges against the five men [JURIST report] accused in the 9/11 attacks. In April 2011 US Attorney General Eric Holder announced that Khalid Sheikh Mohammed and the four others would be tried by a military commission [JURIST report] after the Obama administration abandoned attempts to have the 9/11 suspects tried in civilian courts. Controversy has also surrounded the USS Cole trial. In October, al-Nashiri boycotted his pretrial hearing [JURIST report] at the Guantanamo Bay facility. In September Military Judge James Pohl ruled [JURIST report] that he did not have the authority to allow media to broadcast al-Nashiri's trial. In February Pohl ruled [JURIST report] in al-Nashiri's case that attorney-client mail that was inspected at Guantanamo Bay can not be released by the Pentagon. Days before that ruling defense lawyers in the case of another Guantanamo detainee filed a suit [JURIST report] challenging the order for officials to read all legal correspondence for suspected 9/11 conspirators.