Doubts About Integrity|of 9/11 Evidence Raised

(CN) — A defense attorney for one of the five suspected 9/11 hijacking plotters said Wednesday that the chain of custody for evidence captured during nine overseas raids amounts to what his six-year-old would call a "disastrophy."

The prosecution intends to use a small portion of that evidence in an eventual death penalty trial for the five accused al-Qaida members. There is no trial date currently on the horizon.

"It is virtually impossible for the defense to find out in any way where the evidence was actually collected, what happened to it for the first several years, sometimes up to seven years of its existence," said James Connell, one of the attorneys representing Ammar al-Baluchi.

Prosecutor Clay Trivett said he was "baffled" by this argument during pretrial hearings at the Guantanamo Bay Naval Base. According to a transcript of the proceedings, Trivett said the prosecution had in fact provided chain of custody documents to the defense. Chain of custody requires a chronological documentation to track evidence from the time it is first seized, which authenticates it.

Connell raised the issue over photographs of evidence seized in nine overseas raids. He said the photographs, which he got in PDF form, were stripped of their metadata.

"They have no time stamps on them. We don't know where they were taken, when they were taken, under what circumstances they were taken," Connell said.

Metadata for pictures taken during raids between 2002 and 2004 would include pixilation information, which would tell the defense if they are looking at an original or cropped photo, as well as what type of camera took the photos and the date and time they were taken, Connell said.

"That's important for chain of custody, it's important for integrity of the information," he said.

Some of the pictures might have been taken as late as 2009, in which case they would also include geo-tagging as well as information about who took the photos and anyone who modified them, he added.

The prosecution says only two of the nine overseas raids are relevant to efforts to try the five men accused of killing 2,976 people on Sept. 11, 2001, and only two raids produced photos from the actual raid sites, Trivett said.

Connell noted that the prosecution has provided the defense with the underlying information for one of the two relevant raids, but it wants the other metadata.

In a 2014 court document, the prosecution asserts that the defense has failed to state a case for how the metadata will help it prepare, and adds that the metadata will not be a genuine issue in the case.

The 9/11 trial judge, Army Col. James L. Pohl, asked the prosecution why it would not just hand over the other information if the prosecution did not object to it. Trivett said he would look into whether another reasons exists to withhold it.

Trivett later noted that the prosecution has a legal obligation to let the defense inspect the physical evidence from the raids, and has made that evidence available in the form of photographs since January 2014.

"As a courtesy for discovery for their preparations and our preparations, on my direction, agents simply photographed these in the national capital region so we could turn them over for purposes of discovery so they could do preparation for the case without having to look at the physical items right away," he said.

Connell said the defense was surprised to learn from a 2014 government case document that the photos were taken in the United States.

In addition to the metadata, a defense document says the government has also failed to produce search warrants for the raids, the identities of those present at the raids, and the identity of witnesses who can offer information related to the raids, though these issues were not raised during the hearing.

Trivett said that battlefield conditions precluded the more detailed evidence collection procedures typical of crime scenes. The government had to grab people and items quickly, and then established a chain of custody as soon as practicable, he added.

This round of 9/11 pretrial hearings wrapped up Thursday morning with a press conference, where Chief Prosecutor Army Brig. Gen. Mark Martins acknowledged the family members of the 9/11 victims who attended the hearings.

"There is no way to predict precisely when trial on the merits will begin in the prosecution they observed this week. We can only assure them that their government will pursue that trial — will pursue justice, under law — for however long it takes," he said.

Pretrial hearings in the 9/11 case will resume Oct. 3.

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