Defense lawyers in the Sept. 11 case at Guantanamo are seeking the testimony of former President George W. Bush and President Barack Obama in a motion to dismiss charges, according to a legal motion released Wednesday.
Lawyers for three of the five defendants charged with planning and helping carry out the attacks say the charges should be dismissed because Bush, Obama and other top officials have made many statements that could influence potential jurors in their eventual trial before a special tribunal known as a military commission, according to the motion.
They have exerted what is known as "unlawful influence," over the case with prejudicial statements such as repeatedly referring to the defendants "terrorists," and saying they must be brought to justice, the lawyers argue.
"Under these facts, it is impossible for any objective, disinterested observer, with knowledge of all the facts and circumstances, to believe these men can receive a fair trial by military commission," they wrote.
Also among those called to testify are Vice President Joe Biden, Attorney General Eric Holder and Sen. Lindsey Graham, a South Carolina Republican who has been active in detainee policy, as well as several Pentagon officials.
The motion was filed May 11 but was only just released on a Pentagon website following a security review. It will be up to the military judge to decide whether to call any of the witnesses to the stand at the U.S. base in Cuba and such an outcome would seem unlikely. The judge may just require written briefs in what is one of many pretrial motions pending in the case.
Prosecutors have not filed a response, though the motion notes that the government opposes the motion to dismiss.
The five defendants, including the self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed, were arraigned at Guantanamo on May 5 on charges that include terrorism and murder. They could get the death penalty if convicted at a trial that is not expected to start for at least a year. The next pretrial is scheduled for June, though lawyers for several defendants have asked for a postponement.
The brief was submitted by the defense lawyers for three of the men: Ramzi Binalshibh of Yemen; Mustafa Ahmad al-Hawsawi of Saudi Arabia; and Pakistani national Ali Abd al-Aziz Ali.
A prohibition on improper influence is an important tenet of the military justice system, intended to prevent higher ranking officers from attempting to sway a case being tried by people over whom they have command.
The motion argues that allowing a death penalty case to go forward after high officials have commented on the case to this extent would place "an intolerable stain," on the public's perception of the military justice system.
"For the past 10 years, through the administrations of two presidents, these accused have consistently been described as `thugs,' `murderers' and `terrorists' who `planned the 9/11 attacks' and must `face justice,'" the lawyers wrote. "It can easily be understood by members of the public that this system of military commissions exists solely for the purpose of imposing a death sentence upon these accused."