WASHINGTON — Proceedings in the long-delayed trial at Guantánamo Bay, Cuba, of five men accused of plotting the Sept. 11, 2001, attacks hit a new roadblock on Friday when the military assigned an Air Force judge to preside in the case, and war court prosecutors declared the officer unqualified for the job.
The chief of the military commissions named Lt. Col. Matthew N. McCall as the sixth judge to handle the death penalty case since arraignment in 2012. He is a deputy chief circuit judge for the Air Force at Joint Base Langley-Eustis in Virginia but has served less than two years as a military judge, prompting prosecutors to file a protest on Friday night.
“While respectful of Lt. Col. McCall’s military career and achievements, the government does not believe he is qualified to preside over this case based on the information available,” prosecutors wrote in a two-page notice.
The rules for military commissions trials require a judge at the war court to have been a military judge in one of the services for at least two years. The prosecutors added that if Colonel McCall did not recuse himself from the case on his own, they would seek to remove him.
The development cast further doubt on when and how prosecutors will be able to restart pretrial proceedings, yet alone the anticipated yearlong trial, in the case against Khalid Shaikh Mohammed and four other prisoners at Guantánamo who are accused of conspiring with the 19 hijackers who killed 2,976 people in New York and in Pennsylvania and at the Pentagon.
The case has had a number of judges assigned to it, and this year, one chose to retire, another filled in on an administrative basis and a third lasted two weeks before recusing himself, citing personal ties to New Yorkers who were “directly affected” by the attacks.
The Senate confirmed Colonel McCall’s promotion to colonel on July 30, although his elevation in rank has yet to take place in a Pentagon system that handles the promotions on a rolling basis. Once it becomes official, he would have to serve in the rank for three years to be eligible for full retirement with a colonel’s benefits, circumstances that suggest he could remain on the bench long enough to see the complex conspiracy case to a trial.
Colonel McCall also appears to have no such conflicts. His official biography showed he was a law clerk in Hawaii at the time of the Sept. 11 attacks and before that attended law school at the University of Hawaii.
He was admitted to the Hawaii bar on Nov. 1, 2001, has been deployed at least once to Iraq, for six months in 2006 and 2007 as a prosecutor, then focused on military defense work from 2008 to 2013. He was a defense lawyer in 2009 at the Air Force Special Operations Command at Hurlburt Field in the Florida Panhandle and also served as a senior defense counsel in Charleston, S.C.
More recently, the Sept. 11 trial has been hampered by changes in personnel, logistical challenges and the coronavirus pandemic. Combined, they have stalled most litigation and forced cancellation of every pretrial hearing in the case since February.
Now, coming construction to fill a gap in available housing at the base makes clear that the Pentagon is planning for a 2022 trial start date.
The Defense Logistics Agency recently ordered more than 150 prefabricated, single-occupancy quarters from a Las Vegas company for $11.6 million, with a delivery date of January and February 2022. A village of 375-square-foot houses would be installed on an obsolete airfield at the court compound, Camp Justice, for the lawyers and other professional staff participating in the Sept. 11 trial.
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