A sketch by courtroom artist Janet Hamlin that was reviewed by the U.S. Department of Defense shows Khalid Sheikh Mohammed observing a pre-trial hearing at the U.S. Naval Base Guantanamo Bay, Cuba on Aug. 19, 2013. (REUTERS / Janet Hamlin)
Prosecutors are arguing that the jury in the trial of accused al Qaida spokesman Sulaiman Abu Ghayth should not hear from Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, by closed-circuit testimony from Guantanamo Bay.
In a filing Monday morning, the Southern District U.S. Attorney’s Office argued that Judge Lewis Kaplan (See Profile) should reject defense attorney Stanley Cohen’s bid to call Mohammed as a witness because it was too late in the game. The bid also “unambiguously fails on the merits,” the office argued, because “Mohammed has flatly and definitively refused to testify.”
Cohen on Sunday filed with the court Mohammed’s written answers to questions that the defense team submitted through Mohammed’s lawyer at Guantanamo, David Nevin.
In his 14-page declaration, Mohammed stated, “Sheikh Sulaiman Abu Ghayth was not a military man and had nothing to do with military operations” for al Qaeda.
These and other statements by Mohammad, Cohen submittedz, could provide enough reasonable doubt for the jury to exculpate Abu Ghayth. He faces two conspiracy counts and a single charge of providing material support and resources to the terror group— recruits he called to join the fight in his role as al Qaida propagandist.
The problem for Cohen is that, at the start of his declaration, Mohammed said, “I will not agree to give video or audio recorded testimony at the request of the government or the defense.”
Mohammed also stated the questions he received from attorneys for Abu Ghayth “corresponded precisely with the way the CIA and the FBI posed questions” so he would not cooperate with the defense lawyers.
In his submission, Cohen tells the court that Mohammed indicated he would help the defense by testifying, but only if the request came directly from Abu Ghayth himself.
Cohen said the filing of his own application to the court should be enough to sway Mohammed and persuade him to testify by closed-circuit video or, in the alternative, by deposition under Rule 15.
But Assistant U.S. Attorneys Michael Ferrara, John Cronan and Nicholas Lewin said Cohen “inexplicably waited until the last minute (indeed well past the last minute) to file a motion which, obvious to all, could very well prove time consuming to resolve.”
Cohen, they said, could have sought access to Mohammed in the spring or summer of 2013 and then missed deadlines before submitting hundreds of questions to Nevin on the eve of trial.
The government rested Friday after seven days of testimony in the case that included an expert on the history and methods of al Qaida.
Prosecutors have shown the jury videos of Abu Ghayth declaring after 9/11 that attacks would continue and urging recruits to join the fight against the United States.
Cohen claims his client, a son-in-law of Osama bin Laden, was not a part of al Qaida and played no role in plotting operations but was chiefly known as a respected imam. He said Mohammed’s submission supports this argument.
Mohammed in his declaration stated, “those commissioned with playing a role in the media, such as reporting on letters or speeches, do not know the extent of them or what is behind them or that this is only a war of attrition. The operations which the leadership intends to undertake and the plans for them are known only to the leader of the operation and the military and security officials involved.”
Mohammed also stated that he never communicated to Abu Ghayth the substance of the Richard Reed shoe-bomb plot, and he questioned whether Abu Ghayth was even affiliated with al Qaida or pledged his loyalty.
“As for the question of whether I saw Sheikh Sulaiman Abu Ghayth giving lectures or participating in activities to push the Arab Mujahideen to swear bayat to Sheikh Osama bin Laden, the answer is no,” he said. “To tell the truth, I do not even know if Sheikh Sulaiman Abu Ghayth personally swore bayat to Sheikh Osama bin Laden or not.”
But the prosecutors said it doesn’t matter what Mohammed said, because his refusal to testify is “simple and explicit.”
“Indeed, Mohammed’s position is plain: He will not testify,” they said, and Cohen’s claim that he might was “rank speculation, unsupported by anything in Mohammed’s answers.”
They called the motion “little more than an attempt to delay the trial after Jeopardy has attached and it should be denied as procedurally barred.”
The prosecutors went on to argue Cohen’s application also should be denied on the merits, because the defense attorney failed to show how the evidence he wants to introduce would be material.
“There is no proffered evidence,” they stated. “There is no basis for a Rule 15 motion as there is nothing that—even if the motion were granted—would be put before the jury.”
Cohen and other defense lawyers Monday called to the witness stand two FBI special agents to provide details about the transporting of Abu Ghayth from the Middle East to New York in 2013.
Cohen told the court he would call two more witnesses before resting.
Judge Kaplan will hold oral arguments on the issue of outstanding defense motions on Tuesday. Neither the defendant nor the jury will be present. Testimony is expected to resume Wednesday.
Kaplan, who was doubtful that the defense had any right to question Mohammed in the first place, let alone have him testify, is expected to rule on the application after getting response papers from Cohen Tuesday morning.