MIAMI _ In a new test of the Guantanamo war court's reach backward, prosecutors in the Sept. 11 conspiracy case are asking a higher court to reinstate two charges that were recently dismissed by the trial judge.
The filing Wednesday at the U.S. Court of Military Commissions Review was a first in the 9/11 death penalty case. Prosecutors led by Brig. Gen. Mark Martins are asking the Pentagon panel, which typically sides with the prosecution, to reinstate two non-capital charges of attacking civilian objects and destruction of property.
Army Col. Judge James L. Pohl dismissed the charges April 7 in a 22-page decision that was still under seal Thursday at the war court. Defense lawyers said the argument agreed with their position that the statute of limitations had run out on those two charges related to the Sept. 11, 2001, attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon. Pohl also disagreed with Congress, which created the court years after the 9/11 attacks, and ruled that the principle of ex-post facto applied to the two charges, according to lawyers who read the decision.
Defense attorney Jay Connell said from Guantanamo Bay, Cuba, on Thursday that prosecutors had asked the judge not to halt pretrial hearings in the case during the appeal. Connell said his side would at least seek cancellation of the May hearings because the question of ex-post facto is at issue in other pretrial arguments.
Either way, the latest move cast doubt on the prosecution's proposed June 2018 start of the mass murder trial _ a date the judge has declined to set. He has cited, among other things, inadequate court facilities.
The prosecution notice triggered a provision that, upon government request, lets the Pentagon panel decide whether a military judge hearing a case at Guantanamo was correct in a decision to dismiss a charge. From there, either side could appeal to the civilian U.S. Court of Appeals for the District of Columbia Circuit Court.
Prosecutors went a similar route in the USS Cole death penalty case against Saudi Abd al-Rahim al-Nashiri. They ultimately won reinstatement of charges dismissed by the Air Force judge in that case as part of higher court challenges that halted pretrial hearings in that case for about 18 months.
