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Sept. 11 Trial Constitutional Questions Left for Later

Oct. 20 (Bloomberg) -- A military tribunal for the accused plotters of the Sept. 11, 2001, terrorist attacks ended a week of hearings without resolving questions such as whether constitutional rights will apply and whether interrogation techniques such as “waterboarding” can be discussed openly.

The judge, Army Colonel James Pohl, yesterday postponed rulings on procedural questions that will govern an eventual trial of Khalid Sheikh Mohammed and four other defendants who allegedly planned and financed the attacks that used hijacked passenger planes to kill almost 3,000 people in New York, at the Pentagon near Washington and in a Pennsylvania field.

The slow pace of legal action this week at the U.S. naval base at Guantanamo Bay, Cuba, set the stage for what defense attorneys and prosecutors said will be years of wrangling before a trial can occur in the biggest terrorism case in U.S. history. Pohl said preliminary hearings will resume on Dec. 3, with a fallback date of Jan. 28. Hearings are likely to be held for at least a week every other month, he said.

As President Barack Obama reaffirmed that he would like to close the military prison camp at Guantanamo, defense lawyers questioned the credibility of the tribunal and the fairness of the rules proposed by military prosecutors.

“The president knows America can do better than these show trials,” Mohammed’s chief counsel, David Nevin, said in a statement yesterday. “They are unfair, unsettled, unknown, unbounded, unnecessary and un-American.”

Obama, in an Oct. 18 appearance on Comedy Central’s “The Daily Show,” said, “I still want to close Guantanamo. We haven’t been able to get that.”

‘Worthy’ Work

The chief prosecutor, Army Brigadier General Mark Martins, said the tribunal, known as a commission, plays a vital role.

“We are following the rule of law,” Martins said at a news conference last night. “We commit to pursuing those who plot against our nation and its people.”

What emerged from this week’s session was a military system working to prove itself a credible legal forum while sorting out complex ground rules for a trial involving suspected terrorists captured overseas and interrogated at secret CIA prisons.

Defense lawyers and prosecutors spent days debating whether the U.S. Constitution applies to such tribunals, whether the defense should be given the right to subpoena witnesses without prosecutors’ approval, as is the case in federal courts, and how much sensitive information should be disclosed in open court.

A motion filed by 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.

183 Times

Mohammed, who has said he was the mastermind of the Sept. 11 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.

James Connell, an attorney for Mohammed’s nephew, Ali Abdul Aziz Ali, said the military tribunal would risk creating a society reminiscent of George Orwell’s “1984,” in which a Big Brother government controls people’s thoughts, by forbidding the defendants from revealing in open court how they were treated.

“That information will never be known if the thoughts, observations and experiences of the defendants are classified,” he said at the news conference last night.

Martins, the prosecutor, rejected that argument, saying Mohammed and his four co-defendants shouldn’t be considered as “just private individuals’” entitled to all the rights provided in a federal court.

‘At War’

“The U.S. is at war with al-Qaeda,” Martins said. “This isn’t a theory.”

Pohl, the judge, offered no immediate answers to the major procedural questions raised this week, saying he would take the legal motions under advisement for later rulings.

“We’re in an area where there’s no precedent,” said Victor Hansen, a former Army defense counsel and prosecutor who now teaches criminal law at the New England School of Law in Boston. “There’s even more issues at stake because of that.”

The sense of uncertainty was evident on Oct. 17, when Mohammed raised his hand seeking permission to speak after hours of debate on rules for handling classified information.

“I don’t know what he’s going to say,” Pohl said, asking whether a special session was needed to determine whether Mohammed would disclose any classified information. After a brief recess and assurances that no classified information would be aired, Pohl agreed to let Mohammed speak.

Mohammed’s Speech

Mohammed, al-Qaeda’s former media chief, accused the U.S. government of killing “millions” and being willing “to torture people under the name of national security.”

Pohl told the court he was unlikely to approve additional extemporaneous speeches by defendants.

With about nine family members of Sept. 11 victims looking on from a courtroom spectators’ gallery, Mohammed sat in court Oct. 18 dressed in a white turban, a long white tunic and a military-style camouflage vest.

The vest marked a modest victory for Mohammed. Prosecutors had opposed a motion to let him wear camouflage, saying it could pose a security risk and become a vehicle for propaganda.

Mohammed wanted to show his military background as a former member of the Mujahedeen force in Soviet-occupied Afghanistan, according to one of his lawyers, Army Captain Jason Wright.

Pohl said he would allow the wearing of camouflage clothing as long as it wasn’t part of any U.S. uniform.

Holy Day

While none of the five accused attended the hearing yesterday, a holy day for Muslims, three of them showed up on Oct. 18 and chatted with each other from their seats in separate rows during a recess.

Seated directly behind Mohammed, who was in the first row, was Walid bin Attash, a Yemeni who lost a leg in battle in Afghanistan. Like Mohammed, bin Attash wore a turban, tunic and simple pants, though no camouflage attire.

Behind him sat Mohammed’s nephew, Aziz Ali, a Pakistani who allegedly made travel arrangements for the hijackers. He wore a white tunic and pants and a tan-colored traditional Afghan tribal hat. A prayer rug was draped over the back of his chair.

Heavy metal chains lay on the floor by each defendant, an indication that an officer could shackle the defendants should they misbehave. The chains weren’t used this week.

Martin Toyen, a retired businessman from Connecticut whose 24-year-old daughter, Amy, died at the World Trade Center in New York, said he was glad he went to Guantanamo to view the proceedings.

“It was worth it,” Toyen said. “It really was. I have first-hand knowledge it is going to be a fair trial.”

TV Request

Public access to the trial, if and when it happens, may be limited. With access to Guantanamo restricted, current plans allow for public viewing at Fort Meade, Maryland, where it will be broadcast on closed-circuit television.

Defense attorneys asked Pohl to make public viewing available at other sites and to consider allowing the trial to be televised nationally. Pohl said he had no power to open the commission to live television coverage, with such a decision requiring the approval of Defense Secretary Leon Panetta.

The credibility of military tribunals, called commissions, suffered a legal blow this week, when the U.S. Court of Appeals in Washington threw out the 2008 conviction of Osama bin Laden’s former driver after finding he was wrongly tried under a law that didn’t exist at the time of the alleged crime.

Retroactive Prosecution

Salim Hamdan, who was captured in Afghanistan in November 2001 and sent to Guantanamo two months later, was the first terrorism suspect found guilty at a U.S. military war-crimes trial since the Sept. 11 attacks. The appeals court said the Military Commissions Act of 2006 didn’t cover retroactive prosecution of acts that weren’t prohibited as war crimes.

This week’s hearings, which followed an arraignment in May, mark the second attempt to try Mohammed and his four co-defendants through a military tribunal.

Charges filed in a 2008 tribunal, begun in President George W. Bush’s administration, were withdrawn in 2010 after Obama sought to move the case to federal court in New York. The administration returned the charges to the military system last year after facing political opposition to a New York trial.

As the second attempt at a military commission now gets under way, both sides said the case would continue to move slowly. “I would be shocked if we were on trial in 2013,” said defense attorney Cheryl Bormann.

“What justice has there been?” asked Tom Acquaviva, who lost his son Paul in the World Trade Center, after watching the hearings all week. “Justice delayed is justice denied.”

To contact the reporter on this story: David Lerman in Washington at

To contact the editor responsible for this story: John Walcott at

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