KSM Response On Separate Trials in the 9/11 Case

The Department of Defense has unsealed Khalid Sheik Mohammed’s response to Judge Pohl’s show cause order – in which the commission had asked the government to explain why the 9/11 defendants should not be tried separately. (At the moment, the case is proceeding on a joint basis, with all five accused to face trial together.)  The case's best known defendant says he neither opposes nor supports severance. Thus far only one defendant’s response, from Ammar al-Baluchi (aka Ali Abdul Aziz Ali), specifically had asked for a separate trial.  As support for the request, he cited his plan to demonstrate a lesser level of culpability relative to the four other accused coconspirators. By contrast, attorneys for three other defendants took no position on the severance issue, arguing among other things that impingements on the attorney-client relationship and their inability thus far to review information in the prosecution’s possession together precluded them from doing so. Now Mohammed, better known as “KSM,” has followed this latter approach – while making a few unique points of his own. According to his lawyers’ filing, the “Defense is unable to make an informed and competent response to the Prosecution's Response, and otherwise to address the primary concerns raised by the Commission in its Show Cause Order.” KSM therefore specifically asks the Commission to delay resolution of the severance matter until the defense can review information necessary to formulate a position. His attorneys also highlighted a few specific obstacles to such a review.  Their mitigation expert’s application for a security clearance remains pending, despite having been filed in September of 2011. The delay by definition has precluded the expert from reviewing any classified materials furnished in the prior military commission case against the 9/11 defendants.  (KSM's attorneys also note that they do not yet have access to discovery materials - classified and unclassified - in the pending commission case.) And because of onerous JTF-GTMO rules, Mohammed's lawyers “may not bring into client meetings relevant news articles on potential mitigation themes for discussion and exploration without waiving the attorney client privilege,” and also cannot show Judge Pohl's show cause order and the government's response to Mohammed.  Instead, the lawyers say, the must memorize these materials, apparently in order to summarize them for Mohammed orally.