Judge to stay on bench in 9/11 defendants’ case

McCall could exclude the 2007 clean-team statements, which an Army judge did last year in Guantánamo’s other capital case, forcing a higher court appeal. He could reduce the maximum possible sentence for a conviction to life in prison, instead of death; or he could dismiss the case.

GUANTÁNAMO BAY, Cuba — The judge in the 9/11 case has announced that he will stay on the bench through 2024, providing continuity as pretrial litigation wraps up crucial issues. Col. Matthew McCall, the fourth military officer to preside in the long-running case, had initially planned to retire from the Air Force next month.

McCall has been on the case since August 2021. He has displayed a deep understanding of both the obstacles to a trial and the record his three predecessors built after arraignment in 2012.

He was initially expected to retire in April, a timetable that would have left it to a fifth judge to make key decisions — after absorbing hundreds of pages of filings and exhibits and more than 42,000 pages of public and classified transcripts. Now McCall can proceed with witness testimony in open and closed sessions and legal arguments for at least 19 more weeks in 2024.

The timetable positions McCall to wrap up witness testimony and decide whether prosecutors can use confessions made in 2007 by Khalid Sheikh Mohammed, who is accused of masterminding of the 9/11 plot, and three co-defendants, at the eventual trial. The men spent years in detention in CIA prisons, where they were tortured. Then, so-called clean teams at Guantánamo Bay questioned them without threats or violence in their fourth year in U.S. custody.

Two other key issues are reaching decision points. One is whether restrictions imposed on defense lawyers prevent the defendants from getting a fair trial. In 2018, the first judge threw out the 2007 confessions for that reason. His successors have been revisiting that question ever since.

The other issue is whether what was done to the 9/11 defendants in their first years in U.S. custody constitutes “outrageous government conduct.” Lawyers for one defendant, Mustafa al-Hawsawi, have presented their argument to the judge, who has yet to rule. The delay could give the other three defense teams time to do the same.

McCall could order a range of remedies if he rules against the government. He could exclude the 2007 clean-team statements, which an Army judge did last year in Guantánamo’s other capital case, forcing a higher court appeal. He could reduce the maximum possible sentence for a conviction to life in prison, instead of death; or he could dismiss the case.