Sept. 11 Defense Seeks Torture Evidence at Cuba Hearing

Khalid Sheikh Mohammed and four others accused in the Sept. 11, 2001, terrorist attacks returned to a military courtroom as their lawyers seek permission to collect evidence that some were tortured.

Among the legal issues to be raised before a military judge at the U.S. naval base in Guantanamo Bay, Cuba, is whether the defense will gain access to documents indicating that defendants were tortured while in U.S. custody. In October, during the first round of pretrial hearings, Mohammed used the proceedings to accuse the U.S. government of killing millions of people and employing torture “under the name of national security.”

James Connell, an attorney for Ali Abdul Aziz Ali, a defendant who is a nephew of Mohammed accused of helping finance the hijackers, said at a press conference in Cuba yesterday the men may be able to exclude some government evidence at trial if they can show it was derived from torture. The men, who face a possible death sentence if found guilty, may also use evidence of torture to seek reduced sentences.

This week’s proceedings are “the first step toward finding what happened in the torture of these men,” Connell said.

Mohammed was silent this morning as his lead attorney, David Nevin, requested permission for another lawyer, Gary Sowards, to join his defense team. That led the judge to ask whether he could appoint an additional lawyer without Mohammed’s express consent.

Judge’s Query

“How hard is it for him to say, ‘I want him on the case’?” Army Colonel James Pohl said.

Nevin conferred with Mohammed, who sat quietly and occasionally stroked his lengthy, dyed-red beard as lawyers argued.

“He says tell the judge, ‘You represent me, this is your decision, and to accept Mr. Sowards,’” Nevin said.

The judge did.

Mohammed, Aziz Ali, Walid bin Attash, Mustafa Ahmed Adam al Hawsawi and Ramzi bin al Shibh are accused of plotting the attacks that used hijacked passenger airplanes to kill almost 3,000 people at the World Trade Center in Manhattan, the Pentagon in Virginia, and in Pennsylvania.

Mohammed was captured in a 2003 raid in Pakistan. He and the others are charged with conspiring to finance, train and direct the 19 hijackers who seized the planes, terrorism, hijacking aircraft, conspiracy, murder in violation of the laws of war and attacking civilians.

Waterboarding Confirmed

The Central Intelligence Agency acknowledged Mohammed was one of three al-Qaeda operatives who were waterboarded. He underwent the measure, which simulates drowning, 183 times, according to government documents. Mohammed, the alleged mastermind of the attacks, has been held at Guantanamo Bay since 2006.

At this week’s hearings, the defense is asking Pohl to order the U.S. to preserve evidence from so-called black sites where some of the defendants were allegedly tortured.

The defense also wants an order compelling prosecutors to turn over documents about buildings where the defendants were held and about White House and CIA deliberations on the detention program.

“We have to know about the buildings,” Connell said.

It’s unclear if the torture issue, which may come before the judge tomorrow, will be discussed in a public or closed proceeding. The lead prosecutor, Army Brigadier General Mark Martins, said yesterday this week’s proceedings may establish a structure for arguments at hearings next month.

Legal Evidence

Martins said prosecutors won’t use illegal evidence in seeking “accountability for the murder of 3,000 people.”

“We are not going to do that with tainted evidence,” he said at yesterday’s press conference.

Other questions on the agenda today include whether the military may review mail that the U.S.-based defense lawyers send to their clients.

The defense has submitted more than 70 legal motions, and Pohl has ruled on 20 of them. The government has turned over more than 80,000 pages of unclassified documents to the defense. A trial is at least a year away, according to defense lawyers.

One issue not on the agenda this week is a defense request that the judge dismiss all eight charges including conspiracy. That will be argued later this year.

After a federal appeals court in October tossed out the conspiracy conviction of Osama bin Laden’s former driver, Salim Hamdan, Martins recommended dropping the conspiracy count, saying he would focus on the seven other charges.

Charge Stands

The Pentagon official who oversees the tribunals said this month that he won’t withdraw the charge.

Martins said the disagreement reflects the fairness of the tribunals.

“The fact that officials within this system make independent decisions within their purview, if anything, bolsters rather than undermines confidence,” he said in a statement.

All five defendants are in court today. They may skip subsequent sessions if they choose. During their arraignment in May and at the hearings in October, the defendants sat quietly at times, listening to legal arguments, and sometimes protested the proceedings or made political statements.

Eight relatives of the victims have made the trip to the naval station to watch the hearings. Among them are Joyce and John Woods of Pearl River, New York, whose son, James, 26, was working on the 104th floor of one of the World Trade Center towers at Cantor Fitzgerald LP when the planes struck.

“We’re here to bear witness, hopefully to see justice,” Joyce Woods told about 20 reporters at Guantanamo Bay for the hearings.

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

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

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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