9/11 defendants can sit out Gitmo hearings

19:43, Oct 15 2012
Guantanamo Bay
GUANTANAMO BAY: Detainees in orange jumpsuits sit in a holding area under the watchful eyes of military police.

Five Guantanamo prisoners charged in the September 11 attacks have returned before a military tribunal on Monday (local time), forgoing the protest that turned their last appearance into an unruly 13-hour spectacle.

A judge has made a ruling that could mean the men will be making their last public appearance at a hearing at Guantanamo Bay - also known as Gitmo - for some time.

A military judge says the defendants do not have to attend the rest of a pretrial hearing scheduled through this week at the US base in Cuba.

Army Colonel James Pohl didn't rule out requiring them to attend future sessions. He said they will have to be in court for their trial, which is at least a year away.

Defence lawyers said that forcing their clients out of their cells and into court is traumatic for men subjected to what they call torture.

Prosecutors had argued the men must attend all sessions of the special military tribunal.


But the apparent co-operation of Khalid Sheikh Mohammed, who has said he masterminded the worst terror attack on US soil, and four co-defendants did little to speed up proceedings that have stuck in a legal and political morass for years.

Prosecutors and lawyers spent hours arguing the most preliminary of issues, including whether the defendants have to be in court at all, with one attorney saying the hearings may dredge up bad memories of their harsh treatment in CIA detention.

"Our clients may believe that ... I don't want to be subjected to this procedure that transports me here, brings up memories, brings up emotions of things that happened to me," said Jim Harrington, who represents Ramzi Binalshibh, accused of helping to provide support to the hijackers who crashed planes into the World Trade Center, Pentagon and a field in Pennsylvania on September 11, 2001.

The five men sat quietly at the defence tables under the watchful eyes of military guards and several 9/11 family members at the US base in Cuba. Mohammed, his beard dyed a rust colour with henna, serenely read legal papers. Two others responded politely to the judge when asked.

All seemed to co-operate with their attorneys in a specially designed high-tech courtroom that allows the government to muffle sounds so spectators behind a glass wall cannot hear classified information.

The orderly scene was in stark contrast to their arraignment in May on charges that include terrorism and murder. At that session, one prisoner was briefly restrained for acting out, Binalshibh launched into an incoherent rant, the men generally ignored the judge and refused to use the court translation system, and two stood up to pray at one point.

Pohl is presiding over a week-long hearing to consider about two dozen preliminary legal issues. An eventual trial is likely at least a year away.

The focus of the week's hearings include broad security rules for the prisoners, including measures to prevent the accused from publicly revealing what happened to them in the CIA prisons.

Prosecutors have asked the judge to approve what is known as a protective order intended to prevent the release of classified information during trial.

Lawyers for the defendants say the rules, as proposed, will hobble their defence. The American Civil Liberties Union, which has filed a separate challenge, says the restrictions are overly broad and would improperly keep the public from hearing the men speak about their captivity.

"What we are challenging is the censorship of the defendant's testimony based on their personal knowledge of the government's torture and detention of them," said Hina Shamsi, an ACLU attorney.

The order, which is also being challenged by a coalition of media organisations that includes The Associated Press, is overly broad because it would "classify the defendants own knowledge, thoughts and experience", Shamsi said in an interview.

Protective orders are standard in civilian and military trials to set rules for handling evidence. Military prosecutors argue in court papers that the September 11 trial requires additional security because the defendants have personal knowledge of classified information such as interrogation techniques and knowledge about which other countries provided assistance in their capture.

Army Brigadier General Mark Martins, the chief prosecutor for the military commissions, said on Sunday the security precautions are necessary to prevent the release information that could harm US intelligence operations or personnel around the world, and not to prevent embarrassing the government or to cover-up wrongdoing.

"Our government's sources and methods are not an open book," Martins said.

The US government has acknowledged that before the defendants were taken to Guantanamo in September 2006 they were subjected to "enhanced interrogation techniques" such as the simulated drowning method known as waterboarding.

Defence attorneys say the treatment will be used to form the basis of their defence, but the proposed order limits their ability to make that case in court and in public advocacy on behalf of their clients.

"It's a way in which the government can hide what it did to these men during the period of detention by the CIA," said Army Captain Jason Wright, a Pentagon-appointed attorney for Mohammed. "I think we need to bring the truth to the light of day on these issues."

The judge's approval of the protective order, which may not happen this week, must occur before the September 11 case can move forward. Defence lawyers cannot begin to review classified evidence against their clients until it is in place.

The September 11 victims' family members attending the hearings in Guantanamo are chosen by lottery. Other families and the public were invited to view the proceedings from closed-circuit video in New York, New Jersey, Massachusetts and Maryland. Just seven families attended the first day of the hearings at a US military base in Brooklyn.

Mohammed and his four co-defendants are being prosecuted in a special military tribunal for wartime offences known as a military commission. They were arraigned May 5 on charges that include terrorism, conspiracy and 2976 counts of murder in violation of the law of war, one count for each known victim of the September 11 attacks at the time the charges were filed. They could get the death penalty if convicted.

Mohammed, a Pakistani citizen who grew up in Kuwait and attended college in North Carolina, has told military officials that he planned the September 11 attacks "from A to Z" and was involved in about 30 other terrorist plots. He has said, among other things, that he personally beheaded Wall Street Journal reporter Daniel Pearl.

In addition to Binalshibh, the other defendants are Walid bin Attash; Mustafa Ahmad al-Hawsawi; and Ali Abd al-Aziz Ali.