The five men accused of directing the Sept. 11, 2001, terrorist attacks chose not to appear in a military courtroom in Cuba as defense lawyers asked to spend two nights in their clients’ high-security prison.
As proceedings began in the second day of pre-trial hearings at the U.S. naval base in Guantanamo Bay, the chairs for the five defendants, including accused ringleader Khalid Sheikh Mohammed, remained empty. A military officer told the judge presiding over the tribunal that he went to Mohammed’s cell at 5:03 a.m. yesterday and asked if he wanted to attend.
“He indicated he did not,” as did the other men, Army Major Michael Griffin said.
The judge, Army Colonel James Pohl, discussed the procedure for the defense to call witnesses at a trial, which may be more than a year away, whether the defense must tell prosecutors what the defendants will say in any eventual testimony, and the scope of lawyers’ access to the prison where their clients are held.
Walter Ruiz, the lawyer for Mustafa al Hawsawi, told Pohl that he and two members of his legal team want to spend two nights in the facility at the base, perhaps in a cell adjacent to his client. He proposed recurring visits every six months.
“That would be the best and the closest that we could get to try to have an understanding of the living conditions,” Ruiz said, adding that evidence of harsh conditions may be used to seek a sentence other than death if the men are convicted.
Other lawyers joined in the request. David Nevin, the lawyer for Mohammed, said the defense wants to understand “exactly what life in these camps is like, particularly considered in the context of a person who was tortured,” as he said his client was from his 2003 arrest in Pakistan until his 2006 transfer to Guantanamo.
Prosecutors suggested a single “time-limited” visit, where the lawyers may see the cells without talking to their clients. They opposed an overnight stay, citing issues including security concerns.
“The government is agreeing to grant a site visit” and tour, Army Major Robert McGovern told Pohl. “We don’t think it’s appropriate that they can walk around the facility tapping people on the shoulder.”
The judge didn’t rule on this request, or a related bid for records of Guantanamo Bay prison visits by the International Committee of the Red Cross.
Hearings were scheduled to run for four days. Pohl canceled today’s session after granting a defense request to supplement a motion to present certain witnesses at hearings in February and possibly April. It wasn’t unclear whether the court would convene tomorrow.
In addition, Pohl said he would wait until next month to hear arguments on whether the government must preserve existing evidence from so-called black sites where some of the defendants claim to have been tortured. The issue and the procedure for addressing it had been on this week’s agenda.
The judge voiced uncertainty about a plan to summon a witness to testify about why a white-noise machine was switched on Jan. 28, blocking observers from hearing comments from Nevin. Pohl said he was unsure who to summon to the stand.
“I decide” whether to use the device, which is meant to block disclosure of in-court statements about classified information, Pohl said. Nevin’s comment about the pending black-sites motion was “not a valid basis” to do so, he said.
Mohammed and the four other defendants 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. They 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.
Walid bin Attash, who is accused of selecting and training some of the 19 hijackers, told Pohl on Jan. 28 he and the others don’t trust their attorneys because prosecutors are interfering in their lawyer-client relationship. The brief outburst came as Pohl was explaining that the men may choose not to attend the remaining hearings this week, and those next month.
The defense is seeking evidence that the government used torture to elicit witness statements or leads in their investigation of the 2001 attacks. James Connell, an attorney for Ali Abdul Aziz Ali, a nephew of Mohammed’s, said at a Jan. 27 news conference that the defense may be able to exclude some government evidence at trial if lawyers can show it was derived from torture.
After court, Matthew Seelitto, one of eight relatives of victims to make the trip to Cuba for the hearings, said he was “hurt” by the delay while “proud” of the country for ensuring that the legal process is fair. His son, Matthew, 23, worked at Cantor Fitzgerald LP in the World Trade Center.
Seelitto said his son called him after the planes struck to say he was trapped and “I love you.”
Seelitto said Pohl should reject a defense request that Aziz Ali be allowed to make a phone call to his family because of his father’s death. The judge, while “sympathetic” to the request, said he may lack a “legal basis” to order prison officials to permit the call.
The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).