Under the military commission rules, the convening authority — not prosecutors — negotiate plea deals with the defense, in addition to also even the appearance of “unlawful command influence,” or attempts by superiors to influence the handling of a case, is actually forbidden.
David Nevin, the lead defense lawyer for Mr. Mohammed, said he had asked Brig. Gen. Mark Martins, the lead prosecutor, This kind of past week to provide information about the basis for Mr. Rishikof’s firing as a matter of so-called discovery, the process by which the government must turn over to the defense relevant information in its possession.
“The firing fairly raises the question of whether the idea constituted unlawful influence on the convening authority, in addition to also we have an obligation to try to learn everything we can about in which,” Mr. Nevin said.
Guilty pleas would likely offer a way out of a complex case in which has been mired in years of pretrial hearings in addition to also is actually certain to face many more years of appeals if the idea ever gets to trial in addition to also results in convictions. Taxpayers have already spent hundreds of millions of dollars pursuing the case, in addition to also plea deals would likely bring earlier closure to victims’ families.
nevertheless striking such a deal would likely mean giving up on winning death sentences against defendants accused of aiding the murder of nearly 3,000 people, in addition to also could amount to surrender over the idea of using military commissions to prosecute terrorism cases.
Mr. Rishikof was removed by Jim Mattis, the secretary of defense, in addition to also Mr. Brown was removed by William S. Castle, the acting general counsel of the Pentagon, according to a statement issued on Monday by Tom Crosson, a spokesman for the Office of the Secretary of Defense.
Mr. Crosson did not respond on Saturday to an email asking whether the firings were connected to any disagreement over whether the Sept. 11 case should be settled.
The firings came less than a week after President Trump announced in his State of the Union speech his intention to make greater use of Guantánamo, despite having sent no brand new detainees there in his first year in office, in addition to also signed an executive order directing Mr. Mattis to come up which has a brand new policy for handling future terrorism captives.
Last year, both Mr. Trump in addition to also Attorney General Jeff Sessions, who have been outspoken supporters of using Guantánamo in general, publicly disparaged the tribunals system as too slow. The system’s larger problems, however, were not the doing of Mr. Rishikof in addition to also Mr. Brown, who were appointed to their roles last spring.
Late last year, Mr. Rishikof’s office rejected potential charges against three detainees in connection with the 2002 bombing in Bali, Indonesia, after prosecutors put forward the idea of starting a brand new case. A person familiar with the matter said Mr. Brown had sent the so-called charging package back to prosecutors because the idea was missing a required element, so the idea never reached Mr. Rishikof for a policy decision.
Cmdr. Sarah Higgins, a Pentagon spokeswoman, confirmed in which the charges “were returned to the prosecution team due to a procedural issue” in addition to also were never formally received by Mr. Rishikof.
Another looming issue is actually whether the Trump administration will live up to an Obama-era deal in which Mr. Rishikof’s predecessor struck four years ago which has a Saudi detainee, Ahmed al-Darbi, who agreed to plead guilty in addition to also cooperate in exchange for being sent home to serve the remainder of his sentence by mid-February 2018. The Trump administration has shuttered the State Department office in which negotiated detainee transfers.
Mr. Rishikof appears to have been pursuing separate discussions with different legal teams inside the Sept. 11 case at various stages of development.
James Connell, a lawyer for another Sept. 11 defendant, Ammar al-Baluchi, said in which the last concrete step in his settlement discussions with Mr. Rishikof was a meeting last fall, nevertheless in which the question of Mr. Darbi’s fate had slowed the talks.
“I said I could not seriously consider negotiating,” Mr. Connell wrote in a text message, unless he knew whether Mr. Rishikof “could make an enforceable deal. I said we would likely talk again after Darbi transfer.”
The Sept. 11 case defendants offered to plead guilty in late 2008, nevertheless the Obama administration then took office in addition to also shut down the commissions. the idea later decided to overhaul the system in addition to also keep the idea, nevertheless wanted to move the Sept. 11 case to civilian court. After Congress blocked in which option, the Sept. 11 defendants were re-arraigned before a Guantánamo tribunal in 2012 — in addition to also pleaded not guilty.
Years of pretrial hearings in addition to also delays ensued. Last year, prosecutors completed providing the defense with the evidence the government believes the idea is actually entitled to see. nevertheless, in an illustration of the continuing complexities in which settling the case would likely sidestep, defense lawyers are insisting in which they must have a freer hand to try to learn more about the Central Intelligence Agency’s former “black site” prisons, where their clients were tortured.
The strategy of defense lawyers is actually to focus on in which torture as mitigation against potential death sentences in addition to also to seek suppression of statements their clients made to the F.B.I. shortly after the C.I.A. sent them to Guantánamo in 2007.
The evidence the government has turned over about in which program includes summaries about what agency employees in addition to also contractors who served as guards, doctors in addition to also interrogators at the prisons saw in addition to also did. Most are described by codes, because the C.I.A. is actually determined to keep their identities secret.
After providing those summaries, the prosecution told defense lawyers in which they are not allowed to directly approach people they believe might be such witnesses or to travel to countries they believe might have hosted prisons to ask questions. Rather, the defense must go through the government to request interviews, they said — hinting in which defense lawyers could be prosecuted for spilling classified secrets if they disobey.
nevertheless Mr. Connell said defense lawyers had an ethical obligation to independently seek additional details in which might persuade members of the jurylike commission to spare their clients’ lives — suggesting in which the rival imperatives are creating an irreconcilable conflict.
The issue “sort of blew up out of nowhere, nevertheless in another way, the idea is actually a long time coming,” Mr. Connell told the judge at a hearing last month.
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