Sept. 11 Defendants Demand to Disclose ‘Waterboarding’

Khalid Sheikh Mohammed and four other men accused of plotting the Sept. 11, 2001, terrorist attacks returned to court at the U.S. naval base in Cuba today for hearings that will determine whether the defense can disclose information about interrogation techniques such as “waterboarding.”

With a trial 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.

“The fundamental question will be how much secrecy will the government be allowed to impose on these proceedings,” said James Connell, an attorney for Ali Abdul Aziz Ali, a nephew of Mohammed who allegedly helped finance and make travel arrangements for the attackers.

The five men were last seen publicly in May, when they were arraigned on terrorism charges and didn’t enter pleas. Hearings had been scheduled for June and then deferred to August, only to be delayed again when a hurricane threatened Cuba. Five days of hearings are scheduled this week.

As the hearing began today, Mohammed sat quietly, in a white turban and a thick reddish beard that he occasionally stroked as he did some reading. The proceedings got off to a slow start, as technicians tried to resolve audio problems in the courtroom and the judge began considering a motion for an additional civilian counsel for one of the accused.

Terrorism, Conspiracy

The government is seeking to convict the five men for their roles in the conspiracy that used hijacked passenger planes to destroy the World Trade Center in Manhattan and damage the Pentagon in attacks that killed almost 3,000 people.

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.

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 in Cuba.

“Clearly, there is a sense of embarrassment about mistakes that were made” in the interrogation, Connell said last night, briefing reporters gathered at the base for the hearings.

Waterboarded 183 Times

Mohammed, who has said he was the mastermind of the 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.

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

‘Gag Order’

A motion filed by government prosecutors, called a “gag order” by the defense, would require defense lawyers to treat any information obtained from their clients about their interrogation as classified. That may bar the defense from disclosing such evidence in court, Connell said.

“Torture matters because, quite frankly, America is better than this,” Captain Jason Wright, an Army lawyer who is defending Mohammed, told reporters last night. “From a legal perspective, it’s unconscionable that somehow three or four years of someone’s life can’t be discussed.”

The American Civil Liberties Union and 14 news organizations, including Bloomberg News, have filed motions opposing an order making interrogation disclosures classified.

“The government has not shown and could not show it has a compelling interest in shielding from the public the defendants’ thoughts and memories of torture,” said attorney Hina Shamsi, director of the ACLU’s National Security Project, who will argue the motion in court this week. “If the court orders that the defendants’ thoughts and memories can be withheld from the public, the commission will not be seen as legitimate.”

No ‘Open Book’

Army Brigadier General Mark Martins, the lead prosecutor, told reporters last night that a protective order is needed to ensure that classified intelligence-gathering techniques aren’t exposed.

“Our government’s sources and methods are not an open book,” Martins said. Even though waterboarding has since been prohibited, “there may still be genuine sources and methods of intelligence gathering for forward threats.”

Lieutenant Colonel Todd Breasseale, a Defense Department spokesman, said there is a “mistaken characterization” that the proposed protective order would limit the introduction of testimony about interrogations and captivity.

“So long as the trial judge deems the evidence offered by the defense to be relevant, courts and commissions will hear it,” Breasseale said in a statement. “Any closure of proceedings to the public dealing with such evidence offered by an accused must meet strict criteria to comply with the open trial rules.”

Ex-CIA Official

Another defense motion would compel the government to allow the testimony of Jose Rodriguez, a former CIA official who supervised creation of a CIA detention program that included what the CIA called “enhanced interrogation techniques,” according to the court filing.

Connell said he wants the court to hear Rodriguez testify that the U.S. government authorized the interrogation techniques to be used on men who don’t have any security clearances so that he can argue that information obtained that way shouldn’t be considered classified.

“The right to subpoena witnesses is a key element of a fair trial,” Connell said.

The government said in its court filing that the defense failed to show why testimony from Rodriguez “is relevant and necessary.”

Constitution’s Role

In other defense motions, lawyers seek the right to subpoena witnesses without the approval of prosecutors and for the commission to rule that it is governed by the U.S. Constitution.

When it comes to military commissions, “nobody can say for sure which provisions of the Constitution apply,” said Victor Hansen, a former Army lawyer who now teaches criminal law at New England School of Law in Boston.

If the judge rules that the Constitution applies in its entirety, guaranteeing the defendants full constitutional rights, “it would turn these commissions virtually into federal district courts, which the government has resisted for a long time,” Hansen said.

Prosecutors, in their court filing, urged the commission to deny the motion on procedural grounds, saying the issue is “unripe for adjudication.”

While the military judge, U.S. Army Colonel James Pohl, is scheduled to review 25 motions over the next five days, it’s not clear when he would rule on them.

Eyes Burn

One defense attorney, Cheryl Bormann, raised a potential complication last night by signaling she intends to seek relief from the court for having to work in offices that she said are contaminated by mold and rat feces.

“My eyes burn,” Bormann told reporters. “I lose breath. You can feel it.” While Pohl ruled against delaying the hearings when the issue surfaced in recent weeks, Bormann said she will ask the judge to approve funding for an expert to study the issue again.

How quickly issues can be heard also may depend on the defendants, who used their arraignment hearing in May partly to express grievances and delay proceedings.

Ramzi bin al Shibh, one of the accused, arrived at the arraignment with a prayer rug and what appeared to be a copy of the Koran. The hearing paused momentarily when al Shibh stood up to pray during the proceedings and then knelt on the floor.

Another of the accused, Walid bin Attash, was wheeled into the courtroom in a chair with restraints. Pohl said he assumed the restraints were needed because bin Attash had refused to come to court voluntarily.

Compelling Attendance

Connell, the defense attorney, said he isn’t permitted to say whether the defendants want to attend all of this week’s hearings because of the government’s proposed protective order.

The government has filed a motion to compel the defendants to attend all proceedings. While the men were at today’s hearing, Connell said whether they attend in coming days may depend on how Pohl rules.

Mohammed said nothing at the arraignment in May. The man who once bragged he was “responsible for the 9/11 operations from A to Z” sat stone-faced through the 13-hour arraignment and used a recess to pray.

“I believe Mr. Mohammed will decline to address the court,” his civilian lawyer, David Nevin, said in May. “He’s deeply concerned about the fairness of the court.”

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

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