Defense attorneys seeking to derail the trial of five men accused of orchestrating the Sept. 11 attacks are asking a military judge to order President Barack Obama and former president George W. Bush, Vice President Joe Biden, South Carolina Senator Lindsey Graham and Attorney General Eric Holder to testify at the Guantánamo war court.
At issue in the motion unsealed Wednesday evening at the Pentagon is whether accused 9/11 mastermind Khalid Sheik Mohammed and his alleged co-conspirators can get a fair capital murder terror trial from a military jury of 12 or more U.S. officers.
Attorneys for the accused argue they cannot, citing “widespread pretrial publicity that has included unending prejudicial statements from the highest public officials in the U.S. government.” They are asking the military judge, Army Col. James L. Pohl, to acknowledge the political influence in the process and, if not throw out the case entirely, “remove death as a potential sentence” — even before the case is presented to a jury at least a year from now.
“For the past 10 years, through the administrations of two presidents, these accused have consistently been described as ‘thugs,’ ‘murderers,’ and ‘terrorists’ who ‘planned the 9/11 attacks’ and must ‘face justice,’ ” the lawyers argued.
“It can easily be understood by members of the public that this system of military commissions exists solely for the purpose of imposing a death sentence upon these accused.”
Unlawful command influence motions are not unusual at the Guantánamo war court, which Bush had set up within months of the Sept. 11, 2001 attacks. Obama criticized them as a senator and candidate, then reformed them as president. At least one motion has succeeded in excluding a Pentagon official, a brigadier general, from involvement in a Bush-era case, after a military judge ruled the general was biased toward the prosecution and obtaining a conviction.
Attorneys filed notice of the motion last week. But it was only on Wednesday that the Pentagon finally made public the list of eight upper-echelon witnesses the lawyers for the alleged terrorists are asking the judge to compel to testify to bolster their argument.
A Pentagon spokesman did not have an immediate comment on whether the judge even had the authority to order testimony from the current or former commander in chief. Moreover, testimony at past commissions has not always been in person at the Guantánamo court, which has video-teleconferencing capabilities to hear witnesses from overseas.
Graham’s office said it would not be known until Thursday whether the senior Republican senator who has been influential in the creation of commissions had been told of the request, and whether he would voluntarily comply.
The defense lawyers also want the judge to compel testimony from the senior Pentagon official now responsible for oversight of the war court, retired Navy Vice Adm. Bruce MacDonald, whose title is convening authority for military commissions; Defense Department General Counsel Jeh Johnson, Defense Secretary Leon Panetta’s most senior lawyer; as well as the chief prosecutor, Army Brig Gen. Mark Martins.
One of the most damning quotes attributed to Obama in the 42-page motion — “Khalid Sheik Mohammed is going to meet justice and he’s going to meet his maker” — actually came from the lips of then-White House spokesman Robert Gibbs in remarks to CNN in January 2010. Gibbs is now an advisor to the re-election campaign.
Defense attorneys argue that Pohl, who is outranked by even the chief prosecutor on the case, “is duty-bound to ensure that the accused are afforded process that will guarantee them that a death sentence will not be imposed due to the passions and prejudices injected into the proceedings by the President of the United States, political appointees, or elected representatives.”