With the clock ticking toward Inauguration Day, an Army judge has ordered the prison to send a letter from the alleged 9/11 mastermind to Barack Obama by Friday, a week before this commander in chief leaves office.
Khalid Sheik Mohammed, 51, wrote to Obama in 2014 about “Muslim oppression at the hands of the West in general and the United States in particular,” his lawyer David Nevin said then. He also shares his views on what happened in Iraq during the period of U.S. sanctions and “events in Palestine and Gaza over the years.”
The prison declined to deliver it. Prosecutors called the 18-page letter “inflammatory propaganda” and urged the judge, Army Col. James L. Pohl, to defer to a detention center staff decision not to send it.
But Pohl’s eight-page decision, according to those who have read it, notes prosecution “inconsistency” in its own practice that has sometimes sought to use to its own advantage the incendiary language of the man who, after the CIA waterboarded him 183 times, bragged that he ran the Sept. 11 terror attacks “from A to Z.”
Pohl noted that in 2014, while litigating the rights of female guards to touch the captives, prosecutors attached — unsealed — a jailhouse document signed by Mohammed and the other alleged 9/11 plotters called “The Islamic Response.”
Nearly 3,000 people died in the simultaneous hijackings on Sept. 11, 2001. Pohl is presiding at pretrial hearings on war-crimes charges that seek to execute Mohammed and four alleged accomplices.
Pohl’s decision, dated Jan. 6, was still under seal Wednesday on the war court website whose motto is “Fairness * Transparency * Justice.” Security officials get up to 15 business days to scrub all filings, including judicial rulings, of information they consider too risky for the public to see. The letter itself has likewise been under seal.
Pohl found no “legal basis for continued sealing of the letter’s contents,” according to attorneys who read the ruling. He gave the prison 30 days to screen it — citing an unspecified security concern raised by prosecutors in a unilateral filing to the judge — and then release it to the public.
If the Pentagon sticks to that timetable neither the decision nor the letter itself will be released to the public until after Donald Trump takes office. Pohl, in his ruling, took “judicial notice on the pending change of administrations.”
Nevin, Mohammed’s Pentagon paid death-penalty defender, noted at the outset of the controversy that Obama has the highest of security clearances and should be entitled to receive even the most sensitive of classified material. However, he said, the letter had been screened by security officials and found to contain no classified material.
Mohammed’s military defense attorney, Marine Maj. Derek Poteet, declined to describe the letter’s contents further but said, with Pohl ordering its release, the public should be able to see for itself.
“In past things that he’s written you’ve seen an invitation to the Islamic faith and criticism and anger at U.S. foreign policy over the decades. You’ve also seen him in the past express no fear of death. Don’t expect any surprises,” Poteet said.
He added that Mohammed’s defense team was “gratified that the judge saw through the prosecution’s over-the-top claims about propaganda.”
The 29-month tug-of-war over the letter illustrated uncertain, if not inconsistent, prison communications policies across the years since CIA captives like Mohammed got to military detention in Cuba in 2006. A Pentagon spokesman said at the time Nevin disclosed the existence of the letter, if screeners found no classified information in it, the lawyers should be able to put it in the mail.
Then a year later, lawyers said in a court filing that prison staff refused to send the letter, invoking a two-page limit on non-legal correspondence each month. Unclear in the filing was whether Mohammed asked the prison to mail the letter in nine monthly installments to 1600 Pennsylvania Ave. — and was rebuffed.
The issue essentially put a spotlight on who has the authority to mail a letter from the alleged 9/11 mastermind to the Constitutional law professor turned commander-in-chief from a place where the war court is still resolving which portions of the Constitution apply.
The chief war crimes prosecutor, Army Brig. Gen. Mark Martins, did not respond to a request for a comment on whether he would follow the judge’s order, or appeal it. Martins generally declines to comment on litigation while it is still undergoing a security scrub.
Martins called the letter to Obama an attempt to justify the Sept. 11, 2001, attacks “as a means of self-defense based on alleged American actions throughout history.” To make it public, the prosecutors wrote, “would be an end run” around prison protocols “meant to ensure our nation’s enemies are not given a soap box to spread their radical agenda to the world.”
Mohammed’s lawyers argued the War on Terror captive’s First Amendment right to air his grievances and “express his opinions to government officials.”