September 11 Judge postpones retirement, allowing him to make decisions on issues that turn the case
The news
The judge in the September 11 case has announced he will remain on the bench until 2024, providing continuity as pretrial litigation settles crucial issues. Col. Matthew N. McCall, the fourth military officer to preside over the long-running case, initially planned to retire from the Air Force next month.
Why it matters: Continuity at a key moment.
Colonel McCall has been involved in the case since August 2021. He has demonstrated a deep understanding of both the obstacles to trial and the record his three predecessors built following the 2012 arraignment.
He was initially expected to retire in April, a timetable that would have left it to a fifth judge to make key decisions — after absorbing hundreds of pages of documents and evidence and more than 42,000 pages of public and secret transcripts. Now Colonel McCall can continue testifying in open and closed sessions and legal arguments for at least another 19 weeks in 2024.
What happens next: hearings and likely verdicts.
The schedule gives Col. McCall time to complete testimony and decide whether prosecutors will be allowed to use confessions made in 2007 by Khalid Shaikh Mohammed, who is accused of masterminding the September 11 plot, at the final trial , and three co-defendants. The men spent years in detention in CIA prisons, where they were tortured. Then so-called clean teams at Guantanamo Bay interrogated them without threats or violence during their fourth year in US custody.
Two other important issues are reaching a decision point. One of these is whether the restrictions placed on lawyers prevent defendants from receiving a fair trial. In 2018, the first judge threw out the 2007 confessions for that reason. His successors have since revisited that question.
The other question is whether what was done to the September 11 defendants during their first years in U.S. custody constitutes “outrageous government behavior.” Lawyers for one defendant, Mustafa al-Hawsawi, have submitted their plea to the judge, who has yet to make a ruling. The delay could give the other three defense teams time to do the same.
What we don’t know: The fate of pretrial litigation.
Colonel McCall could order a series of legal remedies if he speaks out against the government at these three intersections. He was able to rule out the 2007 “clean-team” statements that an army judge made last year in the other main Guantánamo case, prompting an appeal. He could reduce the maximum possible penalty for a conviction to life in prison, instead of the death penalty; or he could dismiss the case.
Go Deeper: Related Reading.
Our Who’s Who guide to the September 11 case at Guantanamo Bay.
Judge McCall’s previous plan to retire, and the families’ disappointment of September 11.
Our article about a crossroads ruling in the other main Guantánamo case.
Lost witnesses and fading memories are already hampering the September 11 case.