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The judge in the September 11 case has announced that he will remain on the bench until 2024 to provide continuity as pretrial litigation resolves important issues. The fourth military officer to lead the long-running case, Col. Matthew N. McCall, was originally scheduled to retire from the Air Force next month.
Why it matters: Continuity at a critical time.
Colonel McCall has been working on this case since August 2021. He has demonstrated a deep understanding of both the obstacles to trial and the track record established by his three predecessors after their 2012 arraignment.
He was initially expected to step down in April, but that schedule would have left him making major decisions after absorbing hundreds of pages of filings and exhibits and more than 42,000 pages of public and confidential records. was scheduled to be referred to a fifth judge. Colonel McCall will now have at least 19 more weeks until 2024 to proceed with witness testimony and legal arguments in public and private sessions.
What happens next: A hearing and possibly a verdict.
On the timeline, Colonel McCall will compile witness testimony and help prosecutors finalize confessions made in 2007 by Khalid Sheikh Mohammed, accused of masterminding the September 11 plot, and three co-defendants. It is to be decided whether it can be used in a public trial. The men were held in CIA prisons for years, where they were tortured. Guantanamo Bay’s so-called clean team then interrogated the men, now in their fourth year in U.S. custody, without intimidation or violence.
Two other important issues have reached decision points. One is whether the restrictions placed on defense attorneys will impede a fair trial for the defendant. In 2018, the first judge threw out the 2007 confession on that basis. Since then, his successors have continued to revisit that question.
Another issue is whether what happened during the September 11 defendants’ first years in U.S. custody constituted “outrageous government action.” Lawyers for one of the defendants, Mustafa al-Hawsawi, presented their arguments to the judge, who has not yet issued a verdict. The delay could give the other three defensive teams time to do the same.
What we don’t know: The fate of pretrial litigation.
If Colonel McCall rules against the government on any of these three crossroads issues, he could order a variety of remedies. He could exclude the 2007 Clean Team statement, which an Army judge issued last year in another capital case at Guantanamo, forcing an appeal to a higher court. He could commute the maximum sentence for a conviction to life in prison instead of the death penalty. Or the lawsuit could be dismissed.
Go deeper: Related books.
A character guide to the events of September 11 at Guantanamo Bay.
Col. McCall’s previous retirement plans and the disappointment of the 9/11 families.
Article about the crossroads ruling in the Guantanamo Alternative Capital case.
Missing witnesses and fading memories are already hampering progress in the September 11 case.
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