Defence lawyer Jay Connell said on Monday that military prosecutors claimed they had tapes of phone calls between the alleged architect of the 9/11 terrorist attacks, Khalid Sheikh Mohammed, and three of his accused accomplices discussing their plot in code months before it took place, The New York Times reported.
Connell revealed the information in order to show opposition to plans to use the alleged tapes as evidence at the death penalty trial of the suspected perpetrators.
While investigating their origins, defence lawyers reportedly found out that the original trial judge, Army Col. James L. Pohl, had issued a secret order preventing them from learning about a system that permitted the collection of phone calls or asking questions about it.
Connell, who is currently representing Mohammed’s nephew, Ammar al-Baluchi, claimed that prosecutors had secretly obtained a ruling in August 2018 from Colonel Pohl banning defence lawyers from finding out how the calls had been collected or looking into that matter. According to the NYT, the phone calls in at least two languages were made between April and October 2001.
Connell argued that such a restriction violated the Sixth Amendment to the US Constitution, meaning that it breached a defendant's right to challenge the evidence used against him in a trial, and contended in court on Monday that either the tapes should be suppressed or the case should be dismissed.
While the military trial judges have yet to decide which aspects of the Constitution apply in military commissions — the war court set up by President George W. Bush after the 9/11 events — prosecutor Clayton Trivett responded by saying that defence lawyers would be allowed to question an FBI linguist who compared samples of the voices of the accused to the voices on the tapes to confirm they were Mohammed, al-Baluchi, and two other suspected co-conspirators.
In the meantime, Colonel Pohl said that prosecutors could say that the evidence had been obtained from "telephone calls from between April and October 2001 that were later determined to pertain to the planned attacks on Sept. 11, 2001", the NYT reported.
Trivett refused to reveal how and when the FBI acquired voice samples of the alleged attackers, but said that they were not from the CIA black sites where the five accused plotters were held before being transferred to Guantanamo for trial in 2006.
This week, a new military judge, Col. Keith Parrella of the Marines, is set to hear attorneys and prosecutors argue in the 34th round of pre-trial hearings since the five defendants were arraigned in 2012.
Khalid Sheikh Mohammed, a Pakistani Islamist militant who allegedly boasted in 2007 that he "was responsible for the 9/11 operation — A to Z", is accused of first proposing to carry out attacks on the United States to then al-Qaeda leader Osama bin Laden in 1996.
On 11 September 2001, al-Qaeda terrorists hijacked airplanes to bring down the twin towers of New York City’s World Trade Centre and attack the Pentagon, and a Pennsylvania field. The worst attack in the history of the United States claimed the lives of some 3,000 people.