Khalid Sheikh Mohammed and four others accused of masterminding the terror attacks on the World Trade Center and the Pentagon should be excluded from pre-trial hearings when classified information is disclosed, a prosecutor told the judge in the case in Guantanamo Bay, Cuba.
On the third day of hearings this week before the military tribunal, a government lawyer yesterday urged the judge, U.S. Army Colonel James Pohl, to bar the five men from pre-trial proceedings whenever classified material is discussed. That spurred a heated response from defense lawyers.
“Mr. Mohammed has the right to be present when we’re talking about matters that deal with his torture,” his lawyer, David Nevin, told Pohl.
The five defendants are accused of organizing the 2001 hijacking of passenger airplanes that killed almost 3,000 people when they were crashed into the World Trade Center in Manhattan, the Pentagon in Virginia, and in Pennsylvania.
The five, who have been held by the U.S. for about a decade, may face the death penalty if convicted. They are charged with conspiring to finance, train and direct the 19 hijackers who seized the four planes, as well as terrorism, hijacking aircraft, conspiracy, murder in violation of the laws of war and attacking civilians.
A military trial is at least a year away.
Unlike on June 18, Mohammed and his four co-defendants appeared in court yesterday. They sat quietly and didn’t interrupt the proceedings. Resting his head on his hand, Mohammed occasionally leafed through documents, whispered to his lawyer or translator and glanced around the courtroom.
In asking to exclude the accused plotters from hearings where confidential issues are discussed, Joanna Baltes, a prosecutor, said the government is “not suggesting” that they be excluded from the trial whenever such evidence is presented. Rather, she said, the government wants “protections” for classified information at the pre-trial stage.
There are “times when exclusion of the accused is appropriate to protect classified information,” she said.
Defense lawyers objected. James Connell, the lawyer for Ammar al Baluchi, who is Mohammed’s nephew, said his client had “a right to presence” at “all proceedings.”
Lawyer Cheryl Bormann, whose client, Walid bin Attash, is charged with helping to train the Sept. 11 attackers, said the classified material overwhelmingly concerns “the RDI program,” shorthand for “rendition, detention and interrogation.” The U.S. Central Intelligence Agency has said Mohammed was subjected to the interrogation technique known as waterboarding, which defense lawyers describe as torture.
“You lose legitimacy when the accused, whose life is on the line, is excluded,” Bormann told the judge, who didn’t rule. “He has a right to be present.”
The argument came after a technical glitch interrupted the questioning of a U.S. Navy admiral, who was testifying through a remote videoconferencing link. Defense lawyers were asking Rear Admiral David Woods, who was commander of the Guantanamo Bay prison until June 2012, about orders he issued that allegedly permitted the seizure of attorney-client communications.
The hearings, which began last year, have been marred by more severe technical issues. Last summer, the judge canceled a day of legal argument because an Internet failure interfered with lawyers’ preparations for legal arguments. An approaching hurricane led to cancellation of other hearing days.
In April, five days of hearings were postponed after defense lawyers said their internal documents went missing on government computers.
The video link was restored after lunch. Woods said his duty was to ensure that the camp was safe and secure and that classified information remained protected. Defense lawyers asked whether he had barred them from showing their clients certain legal documents, books and writings on “historical jihad perspectives” because he deemed them to be “contraband.”
A broadcast of the testimony was viewed by reporters at Fort Meade, Maryland, near Washington.
The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).
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