New Judge in 9/11 Trial Lacked Enough Experience For Job Last Year

WASHINGTON — An Air Force judge who had been considered too inexperienced last year to oversee the trial of five prisoners at Guantánamo Bay who are accused of plotting the attacks of Sept. 11, 2001, was named on Friday to preside in the case.

In October, Col. Matthew N. McCall was chosen as the judge for the death penalty case involving Khalid Shaikh Mohammed, but his name was withdrawn after prosecutors protested. Under the rules for military commissions, they said, he had not yet served for two years as a military judge, a prerequisite for a judge at the war court. He passed that milestone last month.

In the intervening year, according to Air Force judiciary records, Colonel McCall has presided in several sexual assault and drug-related courts-martial of service members.

On Friday, Col. Lanny J. Acosta Jr. of the Army, the chief judge for military commissions, reassigned Colonel McCall to the case in a single-page memo that made no mention of the earlier stumble.

Now it will be up to Colonel McCall, who is based in Virginia, to decide whether to assemble the court next month for two weeks of hearings at Guantánamo. The court’s judiciary headquarters had reserved Sept. 6-17 for hearings in the case, which will straddle the 20th anniversary of the Sept. 11 attacks.

If he sits on the bench at Guantánamo, Colonel McCall would be the case’s fourth judge. Others have filled in for administrative purposes.

No hearings have been held throughout the coronavirus pandemic given that nearly every participant, with the exception of the defendants, must travel there. The base has 6,000 residents and has been under strict restrictions, like, for example, requiring unvaccinated visitors to quarantine for two weeks. Those restrictions were recently extended after the base reported new cases as the highly contagious Delta variant is surging.

The case, which has been in pretrial proceedings, has essentially been without a judge since Col. W. Shane Cohen of the Air Force abruptly chose to retire from the service in March 2020. He had started holding hearings meant to resolve the fundamental question of which evidence is not tainted by torture and would be admissible at a trial. Mr. Cohen has since joined the district attorney’s office in Salt Lake City as a prosecutor in his native Utah.

Credit…U.S. Air Force

For Colonel McCall, the first order of business is likely to be determining whether he has any conflicts that might make his serving as a judge impossible. At the war court, that means prosecutors and defense lawyers ask new judges a series of questions about their background to examine for potential bias, and decide whether they are fit to serve. A Marine judge who was earlier chosen for the role, Col. Stephen F. Keane, disqualified himself after realizing he had close relationships with victims of the attacks that killed nearly 3,000 people in New York, in Pennsylvania and at the Pentagon.

Another question that an early hearing will address is the representation of one of the defendants, Ramzi bin al-Shibh. The lawyer who had represented him since arraignment in the case in May 2012 had stopped traveling to the base on medical advice. To succeed him, the Pentagon hired David I. Bruck, a lawyer with capital defense experience who began meeting with Mr. bin al-Shibh this summer, once pandemic restrictions and quarantines eased.

The last court session was held in February 2020. The new judge will need to set a new timetable for the selection of a jury of U.S. military officers to preside in the trial. Military retirements, the pandemic, problems with available infrastructure at the remote base and questions about the admissibility of and access to case evidence have derailed an earlier schedule. Also, under the current timetable, Mr. bin al-Shibh has different deadlines for filing legal briefs.

The Pentagon has ordered prefabricated housing for lawyers and jurors in the case, which could be installed sometime next year at the temporary court compound atop an abandoned airstrip. In preparation, American forces tore down a tent city that had housed up to 60 journalists during pretrial proceedings and have yet to replace it.

Colonel McCall inherits a case with more than 33,100 pages of transcripts of proceedings and more than 100 unresolved legal motions. Because all five defendants spent years in C.I.A. custody, where they were tortured, much of the case material is classified and the judge needs to have a specialized top secret security clearance to review it.

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