(GUANTANAMO BAY) — After over 560 days of delay, the drawn-out pretrial proceedings of Khalid Sheikh Mohammed and four other detainees accused of orchestrating the Sept. 11 attacks got underway again on Tuesday. But it took only a matter of hours for the hearing to run into yet another speed bump.
Mohammed, the alleged architect of the terror plot, along with Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al Hawsawi, filed into the courtroom of Guantanamo Bay Naval Base's "Camp Justice," which hosts the military commissions, for the first time since the pandemic sidelined the military court.
Seated with their defense teams, the men talked amongst each other and appeared engaged in their cases. Mohammed, known in recent years for his vibrantly colored facial hair, sported a bright orange beard along with thick black glasses. Some of the other defendants wore paramilitary attire.
Each detainee spoke out only once during the hearing, affirming that they understood their rights. Mohammed answered "yes," speaking in English. Bin al-Shibh also responded in English, while the other three men communicated through translators.
While Mohammed has a reputation for courtroom outbursts, in a twist, it was the judge who became the central focus of the day's hearing.
As part of his debut on the bench in the proceedings, Col. Matthew McCall -- who was named to preside over the case last month -- conducted a review of his qualifications, opening himself up for questions from the prosecution and the defense.
One of Mohammed's attorneys, Gary Sowards, latched on to McCall's circuitous route to his appointment. McCall was initially selected to oversee the trial last year, but withdrew after prosecutors objected, citing his lack of experience. He was reinstated after completing two years as a military judge, meeting the minimum requirement for the war court.
Sowards questioned McCall on whether the prosecution's complaints had resulted in undue influence over the judiciary, resulting in his temporary removal from the case. The defense argued that this allowed for another judge to step in and -- after a prolonged legal fight -- authorize the destruction of a CIA black site, a secret international prison where terror suspects were subjected to "enhanced interrogation tactics" like waterboarding, which many human rights organizations consider to be torture.
During the questioning, McCall remained level, describing the situation as legally ambiguous in his estimation, but went along with the withdrawal to avoid complicating an already very complicated case.
"Why create an appellate issue? There are other judges who could do this case," he said.
But moments later, the prosecution interrupted, informing the bench of a newly issued Military Commission Review on the exact topic of discussion. It determined that McCall could preside, but that all of the decisions he made before clocking two years of experience would be undone -- leaving only the ruling on the destruction of the black site in place.
McCall dismissed the court several hours ahead of schedule to allow both sides to regroup and strategize.
But James Connell, a civilian death penalty attorney representing al-Baluchi, needed little time to process the information.
"One of the most important issues in the case is how the torture of these men is going to ultimately affect the trial and trials mean evidence," Connell told reporters on the base. "The intentional destruction of evidence takes away from the defense and really the American people, information about what actually happened."
Connell said the defense plans to appeal the order, but lamented yet another delay in a trial that's dragged on for nearly a decade.
"This order is one more example of why this process takes so long, because each issue has to be separately litigated," he continued. "Things come up in this military commission that never come up anywhere else. Where else in the world does the Pentagon issue an order telling a judge how to decide a case? It just doesn't happen anywhere else except here at Guantanamo."