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Story Publication logo March 26, 2020

Military Judge in 9/11 Trial at Guantánamo Is Retiring

The entrance to Camp 1 in Guantanamo Bay's Camp Delta. The base's detention camps are numbered based on the order in which they were built, not their order of precedence or level of security. Photo by Kathleen T. Rhem. Cuba, 2018. Source: Wikimedia Commons.

Carol Rosenberg tells both big-sweep and incremental stories about the court and captives at...

Col. W. Shane Cohen wrote that he was ending his 21 years of Air Force service on July 1. Image by Office of Military Commissions. United States, undated.
Col. W. Shane Cohen wrote that he was ending his 21 years of Air Force service on July 1. Image by Office of Military Commissions. United States, undated.

WASHINGTON — The military judge presiding in the Sept. 11 death penalty trial at Guantánamo Bay, Cuba, has scheduled his retirement for later this year, in the latest blow to efforts to start the long-running trial in 2021.

The judge, Col. W. Shane Cohen, wrote in a one-page letter to the chief war court judge that he was ending his 21 years of Air Force service on July 1. Unless another judge is appointed sooner, he wrote, April 24 would be his last day presiding in the case against Khalid Shaikh Mohammed and four other men who are accused of orchestrating the Sept. 11, 2001, attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon.

The looming departure of the judge, coupled with a current shutdown of legal team access to the United States Navy base prison zone because of the coronavirus pandemic, cast a shadow on the prospects of meeting the target start date of Jan. 11, 2021. A new judge has to be chosen, and he or she will need time to read the more than 33,150-page transcript of the case as well as hundreds of legal filings, some still awaiting rulings.

Colonel Cohen's decision to leave the case also comes as he has been hearing testimony — and has scheduled more witnesses — in an ongoing set of hearings on the defense lawyers' requests to exclude from the trial the F.B.I. interrogations of the men in 2007. The defense lawyers say those interrogations are tainted by the torture the defendants endured during their three and four years in secret C.I.A. prisons.

Although two psychologists who waterboarded Mr. Mohammed and designed the agency's interrogation techniques as contractors testified earlier this year, their testimony has not yet been completed.

In his letter, dated March 17, Colonel Cohen said he was acting in "the best interests of my family and was not impacted by any outside influence from any source." In an open session of the war court on June 17, Colonel Cohen told a defense lawyer that he believed "a court of this magnitude" needed "some level of continuity" that would "allow this case to move forward and for some continuity in rulings by the military judge."

Colonel Cohen, the third judge in the case, was the first to set a trial date and an aggressive hearing and trial schedule that would have required long stretches of time at the remote Navy base in southeast Cuba. In recent hearings, he had begun to suggest that the trial itself could start later than January 2021 and increased his trial time estimate to 12 to 13 months from his initial nine-month prediction.

The judge's decision comes at a time of uncertainty about trial preparation during the coronavirus pandemic. Guantánamo this week disclosed that a sailor there was the first of its 6,000 residents to test positive for Covid-19, the disease caused by the virus.

Terry Rockefeller, who lost her sister Laura in the 2001 attack on the World Trade Center, said she was "outraged and deeply concerned about the likelihood of further delay. Judge Cohen purported to be committed to seeing the 9/11 trial through to a conclusion."

The prison over the weekend halted legal meetings for all 40 wartime prisoners there.

All of the legal team members are based in the United States. Under a new policy, instituted in response to the virus outbreak, lawyers who obtain "mission essential status" to take a Navy air shuttle to Guantánamo must remain in isolation for two weeks at housing near the airstrip before being allowed to cross Guantánamo Bay to the site of the prison.

As of Wednesday, no prisoner had the virus, according to S. Maria Lohmeyer, a Navy commander and a spokeswoman for detention operations.

She said the guards and other detention center staff had planned "for weeks" and rehearsed "for the possibility of Covid-19," including "scenarios that would require isolation." She did not provide specifics but said the prison leadership had "implemented a layered defense that includes prevention and precautionary measures."


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