KSM . Motion to Recuse Military Judge (Army Colonel James Pohl) and the Current Prosecution Team and for Further Appropriate Relief. 10.May, 2016.
“This motion arises from facts and events summarized below, and described in in more detail in references 1-6, Classified Attachment B.
In summary, the government sought permission from the Military Commission to dispose of certain evidence that had important guilt-phase and mitigation value. The defense filed an objection to the proposed disposal, and the Military Judge issued an order directing the government to ensure the evidence was not destroyed pending further order of this Commission.
As a result, counsel for Mr. Mohammad reasonably understood that timely notice would be provided if the Commission decided to alter or rescind the Order and permit the government to destroy the evidence. In direct reliance on the Commission’s assurances, Mr. Mohammad refrained from seeking further orders to maintain the status quo, to include a stay from the Commission, or interlocutory relief or writ of prohibition to prevent the destruction of the evidence.
Indeed, unless and until the Commission provided defense counsel further notice, and the defense were able to allege that the order barring destruction been withdrawn or substantively revised, initiating litigation of an appeal or a writ of prohibition would have been premature as a matter of law.
Meanwhile, during the period that the controlling order remained in effect publicly, the government communicated ex parte and in camera with the Military Judge seeking authorization to destroy the evidence; the Military Judge, in an ex parte, sealed and classified order, which the defense was not permitted to read, GRANTED the government’s request; and the government hereafter destroyed the evidence – all without giving fully-cleared defense counsel for Mr. Mohammad even a hint as to the changes until more than 18 months after the Commission’s issuance of the ex-parte destruction order, and waiting more than 20 months before disclosing to cleared defense counsel a partially-redacted though still classified version of the destruction order.” [emphasis added]
“The test for the appearance of partiality on the part of a judge so as to require recusal is whether an objective, disinterested observer fully informed of the facts would entertain a significant doubt that justice was done. The question to be asked is: Would a hypothetical onlooker be trouble by what happened?”[pp 12 below]
Would the hypothetical onlooker, knowing a judge had secretly – in collusion with government prosecution, allowed destruction of evidence helpful to the the defence […. evidence damaging to the prosecution….’] while pretending to the defense the evidence was protected from destruction, for 18 months; Would a ‘hypothetical onlooker’ be deeply troubled by that?
‘Being troubled’ would depend on whether I am awake or asleep. Upon whether Habeas Corpus and rule-of-Law means anything atall except something dead. It depends whether my reading includes/excludes all evidence gained since that terrible day holding the Official Commission Theory, a fabrication., a myth built around the magic-bolt myth-maker ZELIKOW, who closed off any evidence contrary to his original brief, as DULLES did 50 years before him. It depends whether I have read the Senate Select Committee Investigations into the black sites where it was categorical the ‘informations gained’ [KSM/waterboarded 183 times] were ‘impossible to assess [the effectiveness of the CIA’s enhanced interro[r]gation techniques] without violating “Federal Policy for the Protection of Human Subjects” regarding human experimentation. (pp.13 of 19.SenateSelectCommittee on Intelligence) wherein the OCT cannot/would not/has not withstood even basic scrutiny since its publication – is a basic fantasy ; as this case clearly indicates…Evidence helpful to the defence has been officially destroyed. Not only that, but (pp7.) “The prosecution further informed the defense, and Military Judge, that the government never had any intention of disclosing the material, exculpatory evidence to the defense, and in the future it will not disclose similar evidence to the defense, irrespective of the sanctions that the Military Commission might impose for the government’s willful behaviour.” This from the land of the free and home of the brave, where mercenary psychologists with no practical interro(r)gation skills, [Jensen and Mitchell,] can make millions of dollars as privateers torturing out the 911 narrative.
Habeas Corpus RIP.
MEANWHILE On the other side of the Atlantic, in identical vein, an identical twin :