4 days ago
Fourth Military Judge in Sept. 11 Case Retires
The fourth judge in the long-running Sept. 11 case at Guantánamo Bay has retired and the chief judge for the military commissions assigned himself on Monday to oversee is unclear whether Col. Matthew S. Fitzgerald, the chief judge, will hold hearings in the death-penalty case or just manage it on an interim basis, as other chief judges have done. The next session is scheduled to start on July 14.
A notice on Monday said that Colonel Fitzgerald was replacing Col. Matthew N. McCall, who had served in that role from the summer of 2021 until his recent retirement. Colonel Fitzgerald is also presiding in the destroyer Cole bombing case, Guantánamo's other capital prosecution.
Both Colonel McCall and Colonel Fitzgerald were in law school at the time of the Sept. 11 attacks, which killed nearly 3,000 people in New York, in Pennsylvania and at the Pentagon.
Five men are charged in the case. They were detained between 2002 and 2003 but were held in secret C.I.A. prisons until their transfer to Guantánamo in 2006, one reason for the long delays in getting the case to trial.
In his time on the case, Colonel McCall presided over fact-finding hearings on torture and the handling of secret evidence, and made consequential rulings that splintered the case into three separate tracks.
He severed the case of one defendant, Ramzi bin al-Shibh, in September 2023 after a military mental health panel found him not mentally competent to stand trial. In April, Colonel McCall threw out the self-incriminating statements of another defendant, Ammar al-Baluchi, as tainted by torture and inadmissible at his trial, depriving prosecutors of key evidence.
Colonel McCall also validated as lawful the guilty plea agreements of the other three defendants, Khalid Shaikh Mohammed, Walid bin Attash and Mustafa al-Hawsawi. The military court of appeals upheld his finding last year, and prosecutors are seeking to overturn the guilty pleas in federal issue is whether former Defense Secretary Lloyd J. Austin III acted too late and beyond the scope of his authority when he rescinded the three deals in the summer of 2024, two days after a senior Pentagon appointee had signed McCall postponed his retirement twice to help the case reach trial. Two of the three other judges also retired from the service while serving as judge in the case. Another left the bench to take up a command position in the Marine Corps.
Other military judges have been named to the case, but they were mostly previous chief judges who assigned themselves as a caretaker until the next judge arrived.
