Defense teams in 9/11 case call for disqualification of new judge

Monday (September 10) marked the first appearance of the new military judge appointed to preside over the case of the United States versus the five men accused of plotting 9/11.

On the first day of the case’s 31st pre-trial hearing, the new judge was subject to the process of voir dire, or examination of his qualifications, biases, and temperament by both defense and prosecution lawyers before continuing with court proceedings.

Marine Colonel Keith Parella, a 44-year-old with two years of military judge experience, was appointed on August 27 by former presiding judge Army Colonel James Pohl, who had been presiding over the case since the accused were arraigned six years ago. Judge Pohl maintained that his decision to retire was a personal one, but the new appointment came as a surprise to members of the defense.

Shortly after court convened in the morning, Parella opened the floor to members of the five defense teams to begin questioning. Throughout each round of questioning, Parella maintained that he believes he is qualified and unaware of any grounds on which he could be removed from the case.

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David Nevin, lead counsel for alleged 9/11 architect Khalid Sheikh Mohammed, was the first to take the podium to question Parella. He opened by asking the judge about the extent of his knowledge of the religion of Islam.

“I’m not going to go into a detailed explanation of my knowledge of Islam,” Parella said. He added that he had a general understanding of the religion, comparable to his knowledge of other major religions.

Counsel also asked Parella about his feelings about the September 11 attacks, particularly from his perspective as a member of the military. Parella stressed that he had no direct connections to any victims of the attacks, and therefore no inherent biases that might affect his ability to soundly judge the complex case.

“What this feels like is a quiz of the Military Judge,” Parella said when capital defense attorney for Ramzi bin al-Shibh, Jim Harrington, continued to push the issue. “I’m not going to stand up here and be quizzed,” Parella urged.

A view of Hospital Cay, Guantanamo Bay, Cuba during the arraignment of Khalid Sheikh Mohammed, and four co-defendants on May 5, 2012. (AP)

The voir dire process

The purpose of the voir dire process is to give counsel an understanding of whether the new judge’s background might pose any ethical conflicts in the case, especially considering the death penalty is on the table for all five accused.

In addition to questions about his feelings towards Islam and 9/11, counsel asked Parella detailed questions about prior cases he’s worked on, and his personal relationships with members of the prosecution. Parella grew visibly irritated when all five defense teams brought forth similar concerns.

“We’re just rehashing what was already stated,” Parella said tersely, often adding that he wouldn’t continue to take a litany of questions about his qualifications.

Another significant development that emerged in court was the possibility that Parella would only be available to preside over the case for the next 11 months.

The judge confirmed that he had been selected for a Marine Corps position slated to begin in 2019, and may leave the case at that time. Though defense counsel were aware that Parella had been offered the position, it wasn’t clear until Monday’s hearings that he intended to take it.

People gather on a rooftop as the ‘Tribute in Light’ illuminates the night sky, on September 10, 2017 in New York City, on the eve of the anniversary of the September 11, 2001 terror attacks. (AFP)

Possibility of bias

After several hours of questioning, three out of the five teams asked the judge to recuse himself, largely based on the possibility of bias, his availability, and the sheer volume of case materials.

“I don’t move to disqualify you lightly. I mean no disrespect,” Nevin said, stressing the case’s unique complexity and the fact that in order to adequately catch up, Parella would likely have to read several thousand pages of court transcriptions and case documents.

Legal teams for Ammar al-Baluchi and Mustafa al Hawsawi, two men accused of providing training and support to hijackers leading up to the attack, opted to conduct further investigation before deciding whether to seek recusal.

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James Connell, lead counsel for al Baluchi, said his team is particularly interested in looking further into the judge’s relationship with members of the prosecution.

“A more legally significant basis for disqualification is the relationship to the prosecution,” Connell said in a press conference following the court session. According to him, it’s a “classic reason why judges recuse themselves.”

The five men accused of plotting the September 11, 2001 attacks on the United States are currently detained at Guantanamo Bay. The joint trial is currently in its sixth year of the preliminary pre-trial stage. No trial date has been set at this time.