Khalid Sheikh Mohammed and four other men accused of plotting the 2001 terrorist attacks on the World Trade Center and the Pentagon returned to a military courtroom in Guantanamo Bay, Cuba, today for pre-trial hearings that immediately became mired in a debate over how to handle secret evidence.
As a week of hearings began, defense lawyers said they weren’t willing to sign a memorandum of understanding on the handling of classified material because they said a judge’s order would prohibit them from sharing relevant evidence with their clients.
“It’s not fair to execute a man when you have not given him everything in the government’s possession that bears” on his case, said David Nevin, who represents Mohammed, the alleged mastermind of the Sept. 11 attacks.
The military judge, Army Colonel James Pohl, criticized lawyers for objecting now to signing the memorandum of understanding for a protective order that he approved in January.
“Simply to ignore it is not acceptable,” Pohl said.
Only the lawyers for defendant Ali Abdul Aziz Ali, Mohammed’s nephew, signed the memorandum of understanding. Attorney James Connell said he did so with the assumption that provisions of the protective order could be challenged and amended.
Mohammed and the four others are accused of plotting the Sept. 11, 2001, attacks that used hijacked passenger airplanes to kill almost 3,000 people at the World Trade Center in Manhattan and the Pentagon in Virginia, as well as aboard a plane that crashed in a field in rural Pennsylvania.
The defendants 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 trial is at least a year away.
Reporters not attending the court session in Cuba watched a closed-circuit video feed of the hearing at Fort Meade in Maryland, near Washington.
The procedural wrangle over the handling of classified information was only the latest delay in the biggest U.S. terrorism case, which has proceeded slowly since Mohammed and his alleged co-conspirators were arraigned in May 2012 for the second time. Initial charges were withdrawn after President Barack Obama sought to move the case to federal court in New York. The case was returned to the military system in 2011 after a political outcry against a New York trial.
In the current case, entire weeks of pre-trial hearings have been lost because of weather or technical issues, while other logistical concerns and related legal matters have slowed days of testimony.
Mohammed appeared today in his camouflage jacket and red-dyed beard. All five defendants sat quietly and answered occasional questions from the judge with a simple “yes.”
Two defendants were ill, their lawyers said. Mustafa al Hawsawi, who wore a neck brace, was granted permission to skip the afternoon session so he could return to his prison cell and take medication. Defendant Walid bin Attash asked the judge through his lawyer at least twice for a recess. The lawyer, Cheryl Bormann, said her client suffers from a gastrointestinal disease and has an unidentified mass beneath his sternum.
The hearings this week may focus on how much information the government must disclose about the defendants’ years of captivity in secret prisons.
Defense lawyers are asking Pohl to require the government to produce any documents and information concerning the buildings where the defendants or potential witnesses have been held.
“The treatment of the defendants at the hands of the United States government is a key issue in the pretrial, trial and potential sentencing phases of this case,” the lawyers wrote in a motion that may be considered this week. The defendants say they were tortured at secret prisons run by the Central Intelligence Agency in a number of countries that have since been closed.
Prosecutors oppose the motion as overly broad. While the government will produce information about the conditions of confinement of the accused, “certainly not all materials are relevant,” prosecutors said in a written response.
The CIA has acknowledged that Mohammed, who was captured in a 2003 raid in Pakistan, was one of three al-Qaeda operatives who were subjected to waterboarding, which simulates the sensation of drowning.
Mohammed was waterboarded 183 times before being transferred to Guantanamo Bay in 2006.
The defense is also asking Pohl to preserve evidence from the secret prisons, known as black sites, where some of the defendants were allegedly tortured.
“Failure to preserve black-site evidence risks the government’s entire case against the accused,” the defense lawyers wrote in a joint motion.
Prosecutors said in a reply that the request to preserve such evidence is “moot” and unnecessary because they agreed in earlier proceedings to preserve any facilities that existed as of April 2009 and would provide notice to the defense of any change in that plan.
They also said they don’t intend to introduce any statements by the accused that were obtained while the defendants were under the CIA’s detention and interrogation program.
Today’s session marks the first appearance in court of the five men since June, when testimony focused on whether the defendants had a right to attend pretrial hearings when classified information is disclosed. Pohl ruled in July that they will be excluded, and defense lawyers say that means the accused won’t be able to hear testimony about their treatment in custody.
The prison camp at the Guantanamo Bay Naval Station holds 166 inmates, known as detainees. There were 48 prisoners on a hunger strike as of Aug. 15, with 35 being force-fed, according to Army Major Gordon Campbell, a prison spokesman, by e-mail.
Mohammed and the four others are considered “high-value detainees” who are held at a secret site on the naval base that is separate from most other prisoners.
The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).
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