Prosecutors allege that on Sept. 16, 2001 – just five days after the attacks on the World Trade Center and Pentagon – Al-Timimi exhorted his followers to heed a call from Taliban leader Mullah Mohammed Omar for Muslims around the world to come to Afghanistan and defend his regime against a looming U.S. invasion.
In response, four of his followers traveled to Pakistan to train with a militant group called Lashkar-e-Taiba, hoping to use the training as a springboard to joining the Taliban’s army.
None of the four ever actually joined the Taliban, and all have since been convicted and sentenced for their roles.
At a pretrial hearing Friday, Al-Timimi’s lawyers said they need access to detainees at Guantanamo to prove that Mullah Omar had never even asked for Muslims to come to the Taliban’s defense at that time.
In those early days after the attacks, the Taliban was still considering the United States’ demand that Osama bin Laden be turned over, according to news accounts at the time.
Al-Timimi’s lawyer, Edward MacMahon, said the Guantanamo detainees, including one who was the Taliban’s ambassador to Pakistan, can provide direct testimony that Mullah Omar had not issued such a call.
If Mullah Omar was not seeking soldiers, the government’s theory that Al-Timimi was urging followers to go to Afghanistan makes no sense, MacMahon said.
“These guys in Guantanamo are in a perfect position to know what was going on” in Afghanistan in September and October 2001, MacMahon said.
Guantanamo witnesses would also impeach the credibility of government witnesses who have struck plea bargains and claim that Al-Timimi relayed Mullah Omar’s plea for help at the Sept. 16, 2001 meeting.
“Mr. Al-Timimi will say he never said such a thing in his life,” MacMahon said.
Prosecutor Gordon Kromberg said the defense has no evidence at all that anybody in Guantanamo has anything relevant to say about Al-Timimi’s case. He said he and other prosecutors have been reviewing interview transcripts from the detainees and have found nothing relevant.
“He has to come up with some scintilla of evidence before he can go to Guantanamo to look for it,” Kromberg said.
Also, Kromberg said, it’s largely irrelevant whether Mullah Omar had issued a plea for assistance. The key issue is whether Al-Timimi incited his followers to defend the Taliban.
U.S. District Judge Leonie Brinkema did not immediately rule on the motion. She has wrestled with similar requests while presiding over the case against alleged Sept. 11 conspirator Zacarias Moussaoui; those issues have not been fully resolved. MacMahon is also one of Moussaoui’s court-appointed lawyers.
Also on Friday, Brinkema rejected a defense motion that she recuse herself from the case. Al-Timimi’s lawyers said she has a perceived bias because she convicted in a bench trial three of Al-Timimi’s co-conspirators, who were part of what prosecutors called a “Virginia jihad network” that used paintball games as training for holy war around the globe.