Bloomberg News

Sept. 11 Defendants Press for Right to Waterboarding Talk

October 16, 2012

Lawyers for Khalid Sheikh Mohammed and four other accused plotters of the Sept. 11, 2001, terrorist attacks asked a military judge to reject secrecy rules they said would prevent public disclosure of details about “waterboarding” and other CIA interrogation techniques the defendants experienced.

“You cannot classify an observation and experience of the accused, particularly when it was imposed on them against their will,” David Nevin, Mohammed’s chief counsel, said yesterday, the second day of preliminary hearings at the U.S. naval station in Guantanamo Bay, Cuba.

With a trial of the Sept. 11 defendants before a military judge and jury still a year or more away, lawyers for the five men have filed a barrage of motions seeking to define or expand the legal rights they will be afforded as they attempt to air grievances about their treatment in captivity.

Defense lawyers for the five men said the government’s proposed protective order governing the handling of classified information is too broad and would prevent them from effectively representing their clients.

Joanna Baltes, a prosecuting attorney, said the proposed protective order is almost identical to one often used in federal courts. She said the government wants the order approved to guard against “potential disclosures that could be harmful to national security.”

Army Colonel James Pohl, the military judge, recessed the hearing day without ruling on the issue.

The consideration of how to handle sensitive information in the biggest terrorism case in U.S. history coincided with a ruling questioning the credibility of military tribunals.

Case Overturned

The U.S. Court of Appeals in Washington yesterday threw out the 2008 conviction of Osama bin Laden’s former driver after finding he was wrongly tried under a law that didn’t exist at the time of the alleged crime.

Salim Hamdan, who was captured in Afghanistan in November 2001 and sent to Guantanamo Bay two months later, was the first terrorism suspect found guilty at a U.S. military war-crimes trial since the Sept. 11 attacks.

The appeals court said the Military Commissions Act of 2006 didn’t cover retroactive prosecution of acts that weren’t prohibited as war crimes.

A lawyer for Mohammed, Captain Jason Wright, said in a statement that the appeals court “emphasized that constitutional principles can, and must, reach to Guantanamo Bay.” He said the court’s analysis may affect the case against the accused Sept. 11 conspirators.

Mohammed, who has said he was the mastermind of those attacks, was held by the Central Intelligence Agency until 2006, before being sent to Guantanamo. The CIA has acknowledged he was one of three al-Qaeda operatives who were waterboarded. He underwent the procedure, which simulates drowning, 183 times, according to government documents.

News Organizations

Under President Barack Obama’s administration, the U.S. has since banned the practice, which critics such as Human Rights Watch call a form of torture. Members of former President George W. Bush’s administration, led by Vice President Dick Cheney, have continued to champion waterboarding as an appropriate technique they say can extract urgent information from terrorists.

Opposition to the prosecution’s proposed secrecy rule was voiced in court yesterday by David Schulz, an attorney representing 14 news organizations, including Bloomberg News, the New York Times, the Wall Street Journal and the Associated Press.

“Nothing is likely to shape the public perception of the fairness of these proceedings more than the way the court handles this proposed protective order,” said Schulz, who said the order is too broad and makes it too easy for the court to hold closed-door sessions.

“We don’t have secret trials in this country,” he said.

‘Covers Everything’

While defense lawyers said they wouldn’t reveal sensitive information, they also said the government’s definition of what is classified was too sweeping.

Navy Commander Kevin Bogucki, an attorney for defendant Ramzi bin al Shibh, said the proposed rule against disclosure “basically covers everything that happened from the time the accused comes into U.S. custody.”

On LeBron James

Bogucki said it took government officials two months to approve the release of a simple note from Osama bin Laden’s former translator about basketball star LeBron James, who opted to leave the Cleveland Cavaliers for the Miami Heat in 2010. The note, previously made public, said, “LeBron James is a very bad man. He should apologize to the city of Cleveland,” Bogucki said.

“Everything that came out of his mouth was presumptively classified,” Bogucki said. “It imposes an unjustifiable burden upon defense counsel.”

Pohl said he views the proposed protective order as applying only to the pretrial discovery phase of the case. “I don’t see it as the end of the inquiry” on whether information can be disclosed in open court during trial, he said.

Mohammed scoffed at the military commission that will try his case before skipping yesterday’s hearing and winning the right to wear a Mujahadeen’s camouflage uniform whenever he does appear.

“I don’t think there’s any justice in this court,” Mohammed, his long beard dyed a reddish hue, said through a translator before the military tribunal. It was his first public comment since a hearing in 2008, when he said he wished to be found guilty and martyred.

Mohammed and two co-defendants chose to forfeit their right to attend yesterday’s hearing by signing a written waiver under a process approved by Pohl. The two other defendants attended the session.

Defining Rules

The long-delayed week of hearings, initially scheduled for June, is aimed at defining the rules of a trial for Mohammed and the four others accused of plotting the attacks that used hijacked passenger planes to kill almost 3,000 people at the World Trade Center in Manhattan and the Pentagon near Washington and third that crashed in a field in Pennsylvania.

All five men appeared attentive and cooperative as they answered the judge’s questions, with two of them speaking in English and others relying on an interpreter.

The demeanor marked a change from their arraignment on terrorism charges on May 5, when what was expected to be a simple proceeding turned into a 13-hour session with outbursts from defendants and interruptions as they sought to pray. One defendant was wheeled into the courtroom for the arraignment in May in restraints after the judge said he had refused to attend voluntarily.

Camouflage Outfits

Pohl said two days ago he would give the five men an option each day this week as to whether to attend that day’s hearing.

“The accused can, prior to assembly, choose voluntarily not to attend a session” as long as “he understands his right to be present and what his actions may or may not mean,” Pohl said. He stopped short of making the ruling permanent, saying he hadn’t decided whether to revisit the issue when a jury is convened.

The judge settled a dispute over what the defendants may wear in court. Wright, the lawyer for Mohammed, said his client wants to be able to wear a military-style camouflage uniform, similar to what he wore as a member of the Mujahadeen in Afghanistan during Soviet occupation.

Marine Major Joshua Kirk, a prosecuting attorney, said camouflage poses a threat to “good order and safety” and clothing shouldn’t be used “as a vehicle for propaganda.”

Pohl said he would permit camouflage outfits as long as they aren’t part of any U.S. military uniform.

Wearing Turbans

The defendants so far have appeared in court wearing traditional Pakistani-style long shirts and vests with turbans.

Defense lawyers haven’t disclosed whether or how they will challenge the evidence of their clients’ involvement in the Sept. 11 attacks. In public to date, much of the defense strategy rests on exposing the interrogation techniques used on the men after they were captured as well as the conditions of their continued detention at the base at Guantanamo Bay.

James Harrington, an attorney for Ramzi bin al Shibh, who is accused of helping finance the hijackers who committed the attacks, referred to his client’s years in captivity as he argued for the right not to attend hearings.

Harrington said the defendants may believe, “I don’t want anything to do with the court. I don’t recognize the jurisdiction of the court. I don’t want to be subjected to this procedure that transports me here, brings up memories, it brings up emotions of what happened to me.”

Several family members of Sept. 11 victims who attended the hearing could be heard gasping at that statement.

The defendants are charged with conspiring to finance, train and direct the 19 hijackers who seized the planes. The charges include terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war and attacking civilians. The men could face the death penalty if convicted.

The case is U.S. v. Mohammed, Military Commissions Trial Judiciary (Guantanamo Bay, Cuba).

To contact the reporter on this story: David Lerman in Guantanamo Bay, Cuba, at dlerman1@bloomberg.net

To contact the editors responsible for this story: David E. Rovella at drovella@bloomberg.net; John Walcott at jwalcott9@bloomberg.net


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