The military judge in the Sept. 11 case at Guantánamo Bay reopened pretrial hearings on Tuesday for the first time in nearly two years by announcing that he will retire next year before the case ever reaches a trial.
Col. Matthew N. McCall of the Air Force, the fourth judge to hold hearings in the case, said he would leave the bench in April. His decision disappointed families of some victims of the attacks, who said it would result in more delays in the decade-old pretrial hearings. Progress has been slowed by challenges involving classified information, health issues including the coronavirus pandemic and, since March 2022, plea negotiations.
A new judge will be assigned upon Colonel McCall’s departure. His replacement will then have access to 36,000 pages of transcripts and around 400,000 pages of filings and exhibits, including hundreds of written rulings.
Leila Murphy, whose father was killed in the World Trade Center attacks, said Colonel McCall’s decision was “a huge setback” because, for the next judge, “there’s so much to get up to speed, especially this case.”
Ms. Murphy was in nursery school the day her father was killed. She is now 25 and in her last year at New York University’s School of Law. She has been following the case intently since she traveled to Guantánamo as a guest of the prosecution in the summer of 2018 to watch a week of pretrial proceedings. That session was handled by the previous judge, Col. W. Shane Cohen of the Air Force, who likewise abruptly announced his retirement and left the case early in the pandemic.
Colonel McCall got the case in August 2021 and held only two rounds of hearings before suspending the proceedings in March 2022 for the plea talks. They became deadlocked for more than a year while prosecutors awaited a reply from the White House on whether it would endorse assurances that the five defendants would not serve their sentences in solitary confinement and that they would have access to a trauma treatment program. The men were all held for years by the C.I.A. and subjected to waterboarding or other forms of torture before they were brought to Guantánamo Bay in 2006.
President Biden declined to sign off on the assurances on Sept. 6. Nine days later, the judge filed notice of his intent to retire in April.
At the session on Tuesday, Colonel McCall swiftly disclosed that he planned to retire and said he was “not actively searching for a new job at this time.”
In a notice dated Sept. 15, according to a lawyer who received a copy, Colonel McCall said that he chose to retire in “the best interests of my family” and that his decision was “not impacted by any outside influence from any source.” He will be 53 when he leaves the service.
Clayton G. Trivett III, the lead case prosecutor, said in court on Tuesday that prosecutors suspended plea negotiations on Monday until they consult with an incoming war court overseer, who starts on Oct. 8. They had been offering a maximum sentence of life in prison, rather than the possibility of capital punishment, in exchange for detailed admissions of guilt by a defendant willing to describe his role in the attacks by 19 hijackers that killed 2,976 people in New York, in Pennsylvania and at the Pentagon.
Eugene R. Fidell, who teaches at Yale Law School, said the next judge would be confronted with the choice of quickly holding hearings, which could invite questions of whether he or she was ready, or taking the time to read the voluminous record at the risk of slowing down the process.
Guantánamo judges are drawn from a pool of court-martial judges, military lawyers who typically age out of service in their 50s and may have spent only a portion of their military careers on the bench. Mr. Fidell called it “exactly the reverse” of civilian court judges, “where there is a constantly changing cohort of defendants and a very stable set of judges who typically enjoy lengthy terms of office.”
Mr. Fidell said the military commission system was deficient “because nobody has the guaranteed independence and longevity of tenure necessary to bring these cases in for a landing while fostering public confidence in the administration of justice.”
A previous Sept. 11 case judge, Col. Keith Parrella, left after less than a year for a more prestigious position commanding Marine force security units at U.S. embassies around the world.
Ms. Murphy was planning to travel to Guantánamo this week to observe some of the resumed proceedings as a representative of the advocacy group Sept. 11 Families for Peaceful Tomorrows.
She has emerged as an outspoken advocate of plea deals with the defendants that would end in an appeal-proof conviction. She said the judge’s decision to leave the case provided “another reason why pleas are a solution to get this behind us,” and, to her, more evidence of “why a trial is completely unfeasible.”
