WASHINGTON (CN) – No closer after nearly two decades to mounting a trial against accused 9/11 plotter Ammar al-Baluchi, prosecutors told a federal judge Wednesday that the record of torture in the case has no bearing on whether they can seek the death penalty.
“His prior treatment does not give him a status that is cognizable,” Justice Department attorney Kristina Wolfe said.
A 41-year-old citizen of Kuwait, al-Baluchi is set to be tried at Guantanamo Bay, America’s wartime prison camp in Cuba, but public defender Daniel Kaplan initiated the case here in Washington as a petition for habeas relief.
Wolfe called this trajectory improper, saying al-Baluchi must first stand trial, and that the D.C. Circuit must then consider an appeal of that conviction, before he can seek habeas relief in U.S. District Court.
“Mr. al-Baluchi is simply here too soon, your honor,” Wolf said.
That no trial date has been set for al-Baluchi, in what will likely be the biggest criminal trial in U.S. history, did not appear to trip up the lawyer.
“Unfortunately we can’t predict how long the military commission process will take, but it is ongoing,” Wolf said.
Public defender Kaplan insisted meanwhile that the court has jurisdiction because al-Baluchi is challenging the circumstances of his confinement. The lawyer called it cruel and unusual to make al-Baluchi live “under the shadow” of a death sentence after surviving torture at the hands of the U.S. government.
Seemingly unimpressed with the argument, U.S. District Judge Paul Friedman noted that civilian defendants facing a capital trials likewise operate under the shadow of a death sentence.
Friedman also called it possible that al-Baluchi could be held for the rest of his life “with nobody deciding or adjudicating whether he’s done anything wrong.”
Kaplan told the court that now is the time to settle the future of his client’s capital trial.
“It’s not clear how you can deduct torture from execution,” Kaplan said. “Mr. al-Baluchi can’t be 40 percent executed.”
Along with his uncle, notorious al-Qaida leader Khalid Sheikh Mohammed, al-Baluchi is one of five accused 9/11 plotters whose case has been bogged down in pretrial motions since their arraignments on May 5, 2012.
Al-Baluchi was arrested in Pakistan in 2003 and then spent three years in a CIA black site, where he was subjected to the agency’s rendition, detention and interrogation program. He was transferred to the Guantanamo Bay prison in 2006.
The government has accused al-Baluchi of sending $120,000 to the 9/11 hijackers to help pay for flight training and other expenses.
Al-Baluchi is seeking a permanent injunction that would invalidate his military commission trial, or mandamus relief as an alternative.
Should U.S. District Judge Paul Friedman issue an injunction, it would apply only to al-Baluchi and not the other 9/11 defendants.
Kaplan said the requested relief would change al-Baluchi’s day-to-day reality on the ground at Guantanamo, lifting the burden of litigation and preparing for trial.
Attorney Wolfe contested that.
“His day-to-day life would not be different,” she said.
In the military commission case, defense counsel have argued that scenes in the film “Zero Dark Thirty” were inspired by al-Baluchi’s torture and interrogation sessions.
They contend that the filmmakers received more CIA information about al-Baluchi’s torture than they have.
Al-Baluchi’s habeas petition is being handled by a separate defense team of public defenders based in Arizona. Though most of al-Baluchi’s motions in District Court have been filed under seal as “top secret,” Judge Friedman said about 90 percent of them could be made public.
“The public only gets to see one side of the argument,” Friedman said.
Attorney Kaplan said the documents filed as top secret contain references to his torture.
In addition to Mohammed, the other three 9/11 detainees are Walid bin Attash, Ramzi bin al-Shibh and Mustafa Ahmad al-Hawsawi.