MIAMI — A Pentagon defense attorney is invoking a recent civilian court decision in a bid to get the military’s Sept. 11 death penalty case dismissed at Guantanamo.
Navy Cmdr. Walter Ruiz filed the challenge Friday on behalf of Mustafa al Hawsawi, 44, who is accused of helping some of the Sept. 11, 2001, hijackers with financial and travel arrangements to the United States. He faces a military tribunal along with the accused 9/11 mastermind, Khalid Sheikh Mohammed, 47, and three other alleged plotters.
The filing, still under seal at the Pentagon’s war court, is the first known challenge to the military commissions system since a civilian court on Oct. 16 tossed out the 2008 conviction of Osama bin Laden’s driver in a ruling that disqualified material support for terrorism as a retroactive war crime.
In it, Ruiz said, he seeks dismissal of the case and argues that the 9/11 judge, Army Col. James Pohl, should adopt the same “ex post facto” interpretation of the U.S. Court of Appeals for the District of Columbia Circuit when it vacated the conviction of driver Salim Hamdan.
The 9/11 accused are charged with different crimes in a more up-to-date format of the court, which was reformed by President Barack Obama after he took office. Hamdan was convicted during the George W. Bush years. But Ruiz said in a statement describing his filing, “The Hamdan decision strikes at the heart of an already frail and unsettled military commissions system.”
A notation on the sealed docket indicated that Pentagon lawyers for another of the Sept. 11 accused, Mohammed’s nephew, Ammar al Baluchi, 35, joined in the filing.
Their military judge, Pohl, said in recent hearings at the remote U.S. Navy base in Cuba that he expected briefs on the implications of the Hamdan decision. Others are also considering the consequences of the Hamdan decision.
The Justice Department has not yet decided whether to appeal it to the U.S. Supreme Court. “We continue to review the court’s opinion,” Dean Boyd, a Justice Department spokesman, said Monday.
So-called Australian Taliban David Hicks, who like Hamdan was repatriated not long after his conviction, has said through an attorney that he will seek to have his war crimes conviction vacated, too.
Lawyers for a former CIA captive, Majid Khan, were also researching their options, said Army Lt. Col. Jon Jackson, Khan’s Pentagon-appointed attorney.
In February, Khan pleaded guilty to providing material support for terrorism and other war crimes, admitting he helped move al-Qaida money that was ultimately used in a bombing, in exchange for the possibility of eventual release from Guantanamo for his testimony at the war crimes tribunal.
Khan faces a 2016 sentencing hearing and the question is whether the material support for terror charge can simply be dropped or if his guilty plea will need to be revised.