Key 9/11 Suspect To Be Tried In New York

U.S. Won't Appeal Ruling for Bin Laden's Driver

http://online.wsj.com/article/SB10001424127887323783704578250201604478058.html

By JESS BRAVIN
1/19/2013

WASHINGTON—The Obama administration has let pass its last chance for appeal in its case against Osama bin Laden's former driver, whose conviction was thrown out by a federal appeals court.

Salim Hamdan, the first person to be prosecuted at the U.S. military commission in Guantanamo Bay, Cuba, is now in Yemen after he served a sentence meted out by the commission. Last year, the federal appeals court ruled that none of the charges against Mr. Hamdan were valid. The deadline to challenge that ruling passed Monday without action by the Obama administration.

The conclusion to the Hamdan case came as new evidence of disarray emerged at the military commission. A Pentagon official on Friday refused to let the chief Guantanamo prosecutor drop conspiracy charges against Khalid Sheikh Mohammed and four co-defendants for the Sept. 11, 2001, terrorist attacks, even after the prosecutor said he believed those charges are legally flawed.

The decision in the Hamdan case caps a string of victories for the Yemeni man, who was captured in Afghanistan in November 2001, over the U.S. government. The George W. Bush administration selected him to start its military-commissions experiment in 2004, but Mr. Hamdan's attorneys fought the plan to the Supreme Court, which in 2006 ruled that Mr. Bush had exceeded his powers by establishing a court system that denied defendants basic rights.

Congress then authorized a modified form of military commissions. In 2008, a panel of military officers convicted Mr. Hamdan of only one charge, material support for terrorism, and imposed a sentence of five and a half months plus time served. Mr. Hamdan was freed and returned to Yemen in 2009, but his lawyers appealed his conviction and, in October, prevailed at the U.S. Court of Appeals for the District of Columbia Circuit.

The court threw out the conviction because military commissions have jurisdiction only over war crimes—and until Congress included material support for terrorism in the Military Commissions Act of 2006, that offense had not been recognized as a war crime. The Constitution forbids ex post facto laws, or punishing defendants for acts that were not criminal when they were committed.

The Obama administration had until Monday to seek review from the full circuit court or the Supreme Court. It allowed that deadline to pass without action.

The Hamdan ruling suggested that some of the charges against Mr. Mohammed and the other four 9/11 defendants might be legally flawed, and earlier this month, Brig Gen. Mark Martins moved to dismiss conspiracy charges in those cases. Like material support for terrorism, conspiracy has not traditionally been considered a war crime and was rejected by the Nuremberg tribunal that tried Nazi officials after World War II.

The five 9/11 defendants still would face additional capital charges. "There is a clear path forward for legally sustainable charges," Gen. Martins said at the time of his motion.

However, a surprise came Friday when the administrator overseeing military commissions, known as the convening authority, rejected Gen. Martins's motion. A Pentagon statement said the convening authority, retired Vice Adm. Bruce MacDonald, considered it "premature" to dismiss the charges. Adm. MacDonald cited a Justice Department filing in a separate case suggesting the department continues to believe conspiracy charges relating to pre-2006 conduct can be pursued at military commissions.

A Pentagon spokesman declined to release Adm. MacDonald's ruling, saying it was an internal document.

Adm. MacDonald's decision "to drive the prosecution forward" on charges the chief prosecutor does not consider legally viable "shows that the military-commission structure is fundamentally unfair," said James Connell, an attorney for Sept. 11 defendant Ali Abdul Aziz Ali.

A Pentagon spokesman said Gen. Martins was unavailable for comment.
 
Called to defend a Sept. 11 planner

http://www.buffalonews.com/apps/pbcs.dll/article?AID=/20130120/CITYANDREGION/130129914/1109

BY: Phil Fairbanks / News Staff Reporter
Published: 01/20/2013, 07:34 AM

Ramzi bin al-Shibh, a bearded 40-year-old bank clerk from Yemen, faces a federal trial for mass murder that is unlike anything this country has ever seen.

He is one of five men accused of plotting and carrying out the Sept. 11 attacks, and he is at the center of a once-in-a-lifetime criminal case, a trial many hope will provide some closure for a nation still healing from that cataclysmic event more than 11 years ago.

James P. Harrington, one of Buffalo’s most respected criminal defense lawyers, is his lead attorney.

Harrington heads a team of five lawyers representing bin al-Shibh, the man accused of coordinating the attacks, in his death penalty case at Guantanamo Bay, Cuba.

It’s a job Harrington knows many will disapprove of. To start, his client has publicly expressed pride in the attacks that killed 2,976 people.

Yet, Harrington took the case, determined to provide bin al-Shibh the kind of due process that is central to what makes the United States judicial system different, even special.

One big problem for the defense attorney, though: Prosecutors say the U.S. Constitution does not apply to bin al-Shibh.

“It’s the case of a lifetime,” Harrington admits.

“It’s an international case that involves issues few of us will ever have to know or deal with. I’ve been doing this work for 40 years, and this is the right thing to do.”

Few in Buffalo know of Harrington’s involvement in the Sept. 11 case, but at Guantanamo, he’s a lead attorney in what is quickly becoming one of the most important, controversial and unusual trials in the nation’s history.

For instance, Harrington is not allowed to talk about what bin al-Shibh tells him.

He is not allowed to talk about the interrogation techniques used on his client.

He can’t even take his notes when he leaves Guantanamo after talking to bin al-Shibh.

It’s no secret that legal scholars have raised questions about the legitimacy of the military tribunal overseeing the proceedings and the ability of the five defendants to get a fair trial.

“Somebody needs to do it,” Harrington said of the numerous legal challenges filed by the defense. “Somebody needs to raise the cry, and somebody needs to try and force the courts to do what Congress wouldn’t do.”

Harrington is well aware of the hand he’s been dealt.

The defendant
To hear prosecutors talk, bin al-Shibh is the “9/11 coordinator,” a top aide to Osama bin Laden and alleged mastermind Khalid Sheikh Mohammad, as well as al-Qaida’s chief liaison to the U.S. operatives who carried out the attacks.

Like his onetime roommate Mohamed Atta, the leader of the hijackers, bin al-Shibh was supposed to be on one of the four planes used in the attacks. While living in Hamburg, Germany, he reportedly sent $2,200 to a flight school in Florida, but he was turned down four times for a U.S. visa.

When it became clear bin al-Shibh would not gain entry into the U.S., Khalid Sheikh Mohammad named bin al-Shibh his main assistant because of his intimate knowledge of the plot, according to court documents.

Bin al-Shibh also is believed to be the one who informed al-Qaida’s leaders of Atta’s decision on when to launch the attacks: Sept. 11, 2001.

“The person who thought he’d be the 20th hijacker, bin al-Shibh, is no longer a threat to the United States of America and our friends and allies,” then-President George W. Bush said after bin al-Shibh’s capture in September 2002.

Discovered in Pakistan, bin al-Shibh was moved to a series of “black sites,” secret CIA-supported holding centers around the world, and eventually detained and interrogated in Morocco.

Harrington is severely limited in what he can say about those interrogations, but he’s not shy about describing as torture the methods used against his client.

Even the CIA has acknowledged using waterboarding, mock executions and sleep deprivation during its interrogations of some al-Qaida suspects.

“We can say our clients were tortured, but that’s as far as we can go,” Harrington said. “That’s in the public domain. That’s been acknowledged by the government, not necessarily using the word torture, but they’ve acknowledged our clients were subjected to enhanced interrogation. They’ve acknowledged they waterboarded KSM (Mohammad) 183 times.”

Like his four co-defendants, this is bin al-Shibh’s second trial at Guantanamo. The first one was called off when President Obama took office in 2009, about the same time that a rift developed between bin al-Shibh and his first attorney, Navy Cmdr. Suzanne Lachelier.

Lachelier had raised the issue of bin al-Shibh’s competency and suggested that her client was being given “a psychotropic drug prescribed to persons with schizophrenia.” She indicated it was unclear whether the drug was for schizophrenia or behavior modification.

When bin al-Shibh learned of her comments, he stopped seeing her and, after three years of not meeting with her, dismissed her.

“I refuse that she speaks on my behalf at all, in any way,” Bin al-Shibh told the court in 2008. “She does not represent me.”

The torture
Torture, interrogation and confinement are central to the Sept. 11 case and almost certainly will be part of any appeal the five defendants file.

And yet, when it is raised during their upcoming trial – for which no date has been set – it will be done in secret.

“All of that will be classified,” Harrington said. “When that issue comes up, it will be done in a closed setting, in a closed courtroom, with the media and the public not there.”

Harrington cannot discuss in any detail what his client went through or where it took place; because that information came from his client, it’s considered classified.

Pentagon officials insist bin al-Shibh’s every utterance about the Sept. 11 attacks is highly classified. So what his attorneys tell the public or the court must be strictly monitored.

“It is an unreasonable expectation for the public to see classified information,” said Lt. Col. Todd Breasseale, a spokesman for the Pentagon. “And it is an unreasonable expectation for a defense counsel to make public classified information.”

Breasseale, who has met Harrington, said he respects the defense lawyer’s point of view, but he thinks the public needs to evaluate the commission’s fairness based on what happens in the courtroom.

He also is quick to note that this military commission, authorized by Congress in 2009, is far different from the military commissions that Bush created in the months after Sept. 11 and that were later invalidated by the U.S. Supreme Court.

One of the biggest differences is the guarantee that statements obtained through torture or cruel and inhumane treatment will not be admitted into evidence.

“We believe this is both a fair and reasonable process, given the situation,” Breasseale said.

Unlike most of his co-defendants, bin al-Shibh’s interrogations have taken on a higher profile, because of video and audio tapes of bin al-Shibh’s time in Morocco.

The tapes, believed to be the only existing recordings of overseas interrogations, were found under a desk at the CIA. The tapes do not contain any evidence of torture or cruel and inhumane interrogation techniques, U.S. officials say.

Harrington hasn’t seen or heard the tapes and, even when he does, he won’t be able to talk about them because they, too, are classified.

Even before the tapes surfaced, questions arose early on about statements the five defendants made while in custody overseas. Chief among them: Can those statements be used against them during their trial at Guantanamo?

“They’ve publicly said they’re not going to use any information from the time they were in other countries,” Harrington said. “But what they did was, once they brought them to Guantanamo, they waited a few months and brought in new agents, what they call clean agents from the FBI, who took new statements. Those are the statements they’re going to use.”

Harrington said those statements will be challenged as well.

The tribunal
At the heart of the controversy over the Sept. 11 trial is the military tribunal Congress put in charge of the prosecutions.

The tribunal – a panel of 12 high-ranking military officers who will hear evidence and decide the fate of the five defendants – has come under criticism because of its unconventional rules and procedures.

Unlike criminal prosecutions in state and federal court, where the Constitution reigns supreme, the prosecution claims the Guantanamo defendants have no constitutional rights. Instead, the cases are being tried under rules and procedures outlined in the Military Commission Act of 2009.

The law was passed by Congress after President Obama, during his first year in office, halted the previous military commission and ordered a top-to-bottom review of the detainee cases. Obama wanted the Sept. 11 trial moved to a civilian federal court in New York City.

“They deserve a trial, but not a civilian trial in the U.S.,” said Leonard A. Castrianno of Amherst, whose son Leonard died in the World Trade Center attacks. “It was an act of war when they hit the towers.”

Castrianno wants the Sept. 11 defendants punished for what they did – he thinks the ideal sentence may be life behind bars – but he also wants to ensure that they have proper legal representation and a fair trial.

Harrington said he understands the need to protect classified information but that Congress went overboard by creating a military judicial process that inhibits everything from attorney-client privilege to bin al-Shibh’s ability to participate in his own defense.

“Now we have this procedure that is under attack, not only by us in the courtroom, but is viewed around the world as unfair and really un-American,” he said. “I recognize there are many people who feel these guys shouldn’t even get a trial. But we’ve always tried to distinguish ourselves as people who believe in due process.”

Perhaps the most vivid example of Harrington’s concerns is the restrictions on how he communicates with his client.

Even when he meets privately with bin al-Shibh, he must surrender his notes before he steps foot off Guantanamo. The notes are put in a safe and later emailed over a secure line to a military office in Arlington, Va.

If Harrington wants to refer to his notes, he has to go to Guantanamo or Virginia.

“If we’re going to give our clients something to read, even if it’s material related to the case, we have to have it reviewed by what they call the Privilege Team,” Harrington said. “Now they claim the Privilege Team is not associated with the prosecution, but it’s still a third party that gets to see whatever we give our clients or what our clients want to give us.”

Convinced that the process is flawed, Harrington and others have challenged its legitimacy in court and cited a recent test conducted by two other defense lawyers.

The lawyers, one of them from Cleveland, wrote on a piece of paper, “LeBron James is a bad man. LeBron James should apologize to the City of Cleveland,” and had their client sign it.

“They brought it out and submitted it to the Privilege Team to determine if it was classified,” Harrington said. “It took two months for that to clear. That kind of highlights the absurdity.”

Like others, Breasseale is quick to remind the public that military commissions are as old as George Washington, who used one to prosecute British Maj. John Andre on charges of spying, and as a recent as World War II, when they were used to try German and Japanese war criminals.

“Military commissions are as American as America itself,” he said. “I’m not convinced what we’re doing is un-American.”

The lawyer
After more than a year on the case, Harrington thinks he’s developed a certain level of trust with bin al-Shibh. That’s an important part of any attorney-client relationship but something he was skeptical of achieving when he started on the case.

He travels to Guantanamo frequently – he was there several weeks ago – and meets with bin al-Shibh about four or five times each visit, usually for about six hours a day.

“I would say we have a good relationship at this point, although it’s always subject to change, given what he’s been through and the difference in culture,” Harrington said. “We have ways of communicating. I have a deadpan sense of humor, and he recognizes that.”

In Harrington, bin al-Shibh also has an attorney who has been eager to make the tribunal and its rules a key part of his defense.

A University at Buffalo Law School graduate who knew of Harrington, a fellow UB Law graduate, recommended him to Lachelier before the Navy commander was removed from the case. She was looking for someone with experience in death penalty cases – Harrington has worked on more than a dozen – and for someone who wasn’t in it for the headlines.

Even after Harrington agreed, he had to go through security clearance, a process that took four months and included everything from a background check to extensive training on what is and isn’t classified information.

While some may wonder why Harrington would take on such an unpopular case, those closest to him never questioned his intentions.

“He knows there are people who are not going to agree with what he’s doing, but to him the law comes first,” said Joel L. Daniels, a criminal defense lawyer and one of Harrington’s close friends.

Defense lawyer Herbert L. Greenman, another close friend, said he wasn’t surprised at all that Harrington took on what others would have refused.

“Jimmy has never shied away from unpopular causes,” Greenman said. “He’s a lawyer’s lawyer and always does what he thinks is right.”

Even more important, perhaps, is Harrington’s steadfast belief in due process, one of the foundations of the nation’s legal system, and his belief that the prosecutions of the Guantanamo Five fall far short of that standard.

For that reason, Harrington isn’t shy about suggesting his client’s trial be moved to a civilian federal court as President Obama once suggested.

“The country would have been better served,” he said. “Part of the problem with a military commission is that there’s this perception and reality that the system is one-sided and doesn’t measure up to our federal court standards.”

He also thinks one of the nation’s most precious ideals, the notion that everyone, even the most heinous criminal, is entitled to a fair trial, is at risk.

“One of the things we have to get back to is the fact that this country is a special place,” he said. “In order to do that, we have to abide by whatever the rules are, whatever the Constitution says, no matter how severe the cases are. It’s a real struggle to try and reconcile this military commission with the Constitution.”

The families
Harrington talked to a lot of people – family, friends and fellow lawyers – before signing on to the case.

He knew then, and still knows, that many people who learn of his involvement will wonder, “How can he do it? How can he represent a defendant who’s accused of killing nearly 3,000 innocent people?”

And yet, he will tell you that the people he crosses paths with are almost always respectful of his role, even if they want bin al-Shibh and the others convicted and sentenced to death.

“Everyone I talk to wants the process to be fair,” he said. “No matter how much we gripe and moan about this country, I think you’ll find the vast, vast majority of people take pride in the fact that we’re supposed to do better.”

Perhaps the most telling example of that is the interaction Harrington has had with family members of Sept. 11 victims.

About 20 such family members attend each court appearance, and they are always asked if they want to meet with Harrington and the other defense attorneys.

“Some have met with us, and every family member I’ve talked with said, ‘We want this process to be fair and we understand what you’re doing,’ ” he said.

Harrington told the story of his trip back home to Buffalo after bin al-Shibh’s arraignment in May. He was on a ferry crossing Guantanamo Bay when several family members approached him and asked to talk.

“Psychologically, the victims’ families want to understand why this happened,” he said. “They want to understand, assuming our clients did this, why they would do it. The only connection they have to that person is through their defense counsel. They crave information. Of course, most of it we can’t give them, but it is a connection.”

Paul Walier, whose sister Margaret Walier Seeliger, a 34-year-old Lake View native, died in the Twin Towers attack, said he has no resentment toward Harrington or the other defense attorneys.

Walier, in fact, suggested that even his sister would have wanted the defendants to have good legal representation and a fair trial.

“She wouldn’t want to live in a country that can unilaterally decide someone’s guilt or innocence,” he said.

Where he and Harrington part ways is in the ultimate punishment facing bin al-Shibh.

“Obviously, I want to see justice done and the people responsible punished,” Walier said. “Even before 9/11, I was a death penalty advocate. It’s not just because my sister was killed. I think these cases warrant the death penalty.”

Harrington knows that no matter how successful he is, bin al-Shibh will never go free.

America would never allow it.

“One of the things about this case is, if our clients are acquitted, they’re not going anyplace,” he said. “They’re in custody for the rest of their lives, which is totally un-American. But that’s the reality, whether it’s Guantanamo or someplace else.”
 
9/11 Defendants Seek to Preserve CIA Sites Where They Were Tortured

http://www.wired.com/dangerroom/2013/01/black-sites/

By Spencer Ackerman
01.24.13

The last people you might expect to want to see the CIA’s secret torture prisons kept intact are the people who were tortured there. But the defense lawyers for the 9/11 co-conspirators are arguing that the CIA’s so-called “black sites” need to remain open, untouched and exactly as they were when top al-Qaida operatives were abused.

The CIA torture program isn’t on trial at Guantanamo Bay. The five accused 9/11 conspirators are, and they face the death penalty. But the legal maneuver brings to light an irony of post-9/11 justice: The military tribunals that remain the bane of civil libertarians might be one of the last venues to investigate torture.

On Monday at Guantanamo, Army Col. James Pohl, the judge in the 9/11 tribunal, will hear a longstanding motion filed by the defense team to “preserve any existing evidence of any overseas detention facility used to imprison any witness in this case.” The gambit, explains James Connell, a Defense Department civilian who represents defendant Ammar al-Baluchi, seeks to treat the black sites like crime scenes — something the Justice Department has been reluctant to do.

It’s not that the defendants want others taken to the black sites. It’s that, as Connell tells Danger Room, “If a site is still open, it’s evidence.”

Some of the treatment experienced at the black sites by the five defendants, which include the confessed 9/11 mastermind Khalid Shaikh Mohammed, include being doused with water for the simulated drowning known as waterboarding; being kept in contorted “stress positions”; and being deprived of sleep for extended periods, sometimes as a result of the stress positions. But the defense hasn’t been able to review any official material about what went on inside the black sites — something crucial to its legal strategy, since the military commissions are supposed to exclude evidence obtained through “the use of torture, or by cruel, inhuman, or degrading treatment.” (.PDF)

Emphasis on supposed to. “The government has not yet provided any discovery or information about our clients’ treatment at the black sites,” Connell says. “If the trial were tomorrow, I would have no way of introducing it.”

The CIA sent 14 detainees from the black sites to Guantanamo in 2009. President Obama forbade the CIA in 2009 from holding any other detainees. But the CIA didn’t build the black sites, it rented them, in places like Romania, Poland and Thailand. And since they’ve been closed, they’re at risk of being destroyed or modified by their host countries in such a way that will prevent anyone outside of the torture program from ever knowing what exactly went on there.

Connell isn’t even asking for documentation from inside the black sites. That’s likely to come later this year, he says. For now, the defense team is looking to preserve the architecture of the sites, which it contends can reveal information about his clients’ treatment. “If a person is in isolation,” Connell argues, “how that isolation is enforced is a relevant legal factor as to whether they’ve been illegally punished, and the building design is relevant to that.”

An earlier version of the military commissions insisted the government not mess with the shuttered black sites. In April 2009, Army Col. Stephen R. Henley, another military judge, ordered the government to “maintain the status quo” at any facility where the 9/11 defendants were held. (.PDF) But in 2010, the Obama administration voided the military commission for the five accused 9/11 conspirators in a failed bid to try them in civilian courts, only to start over with a different commission — one that may not be bound by Henley’s order. “Unlike a civilian court, the authority of a military commission ends when it is dissolved,” Connell clarifies.

If it seems strange that the black sites’ building design should be a factor for disclosure about the treatment that took place inside them, consider that there’s been practically no official disclosure about what did. The Senate intelligence committee recently completed a report into the CIA’s “enhanced interrogation program,” but for the time being, it remains a secret. The Justice Department declined to prosecute CIA officers involved in the torture program. Nearly everything else known about the treatment of detainees kept in black sites has been pieced together from references in declassified legal documents or from journalism.

The secrecy surrounding the commissions prevents Connell from saying if he has specific reason to fear that the black sites are at risk of destruction. (“I can neither confirm nor deny that,” he says.) But it’s not a hypothetical fear. The former chief of the CIA Counterterrorism Center destroyed nearly 100 videotapes documenting brutal interrogations.

Observers of the military commissions are reluctant to predict how Pohl will rule on the black-site preservation. But Daphne Eviatar, who monitors the commissions for Human Rights First (disclosure: a former journalistic colleague of mine), isn’t optimistic after seeing Pohl kill the audio feed in the courtroom last October when it seemed like one of the lawyers was about to use the word “torture.”

And even if Pohl orders the government to preserve evidence from the black sites doesn’t mean he’ll allow that information to be disclosed in open court. A victory for Connell isn’t the same as a victory for openness about torture. And if that’s the way Pohl rules, it may be a long time before the public has a better chance to learn even a little more about what the CIA torture program entailed.

“War crimes trials are often about a public presentation of what happened at some historical point,” Eviatar says. “Here, although what happened [before] 9/11 is the primary subject of the trial, how the U.S. responded to 9/11, through these five defendants, is also important, and the trial out to be able to bring out all of that.”

“If the government wants to go forward with a case seeking the death penalty against these men, it has to make the evidence which may still exist available to them,” Connell says. “If they will not make relevant evidence available, the law suggests the prosecution cannot go forward with the case. ” Unless Pohl decides otherwise.
 
9/11 Suspects Get New Hearings at Guantanamo

http://www.voanews.com/content/hearing-guantanamo-9-11-suspects/1590575.html

Luis Ramirez
January 24, 2013

PENTAGON — Another round of pre-trial hearings is set to get under way next week at the U.S. naval base at Guantanamo Bay in the case of Khalid Sheikh Mohammed, the self-confessed mastermind, and four other suspects accused in the September 11th, 2001 attacks.

More than 11 years after the attacks, the case drags on in a Guantanamo Bay naval base courtroom.

The proceedings are best characterized by the defiance and antics displayed by alleged ringleader Khalid Sheikh Mohammed and the four other suspects -- accused of nearly 3,000 counts of murder.

At their arraignment in May, the suspects ignored the judge, had an outburst, and one of them began undressing in front of the court.

This set of hearings will have the defense trying to get the charges thrown out -- on the argument that the proceedings are illegitimate. Defense attorneys want former U.S. President George W. Bush and former Defense Secretary Donald Rumsfeld to be called as witnesses -- to testify on their role in ordering alleged torture and establishing the prison at Guantanamo Bay.

Jennifer Daskal, a Georgetown University law professor who has been vocal on the Guantanamo proceedings, says the suspects’ antics would likely not have gone so far if the case were being tried in a U.S. federal civilian court.

“The judge and the participants, they’re bending over backwards to make it appear as if the system is fair. And so, in a situation like that, the judge, it appears to me, is giving the defendants way more leeway than you would ever see in federal court where judges would just shut those kinds of antics down in an instant,” Daskal said.

The U.S. government’s decision to hold the trial at Guantanamo Bay and keep detainees imprisoned there has sparked protests among American anti-war activists.

President Obama promised to close it down, but did not.

Daskal was among those calling for closure of the facility when it first opened. But she has since changed her mind.

“There are no more tortures going on in Guantanamo, and conditions have improved significantly. The thing that we’re left with is detention without charge, and, in the current political and legal climate, closing Guantanamo is not going to change that. Closing Guantanamo simply means moving some core subset of Guantanamo detainees to some other place where they’re detained without charge and most likely in much worse conditions,” Daskal said.

It is not clear whether the five defendants will show up for these hearings.

But a few relatives of some of the nearly 3,000 victims will be there -- as they have been since the start of the proceedings. For them, the wait for justice continues.
 
Court overturns another Guantanamo conviction

http://news.yahoo.com/court-overturns-another-guantanamo-conviction-212358235.html

By Jane Sutton | Reuters – 11 hrs ago

MIAMI (Reuters) - A U.S. appeals court on Friday overturned the Guantanamo war crimes conviction of an al Qaeda videographer, a ruling likely to lead to dismissal of conspiracy charges in the pending trial of five men accused of plotting the September 11 attacks.

The U.S. Court of Appeals for the District of Columbia threw out the conviction of Yemeni prisoner Ali Hamza al Bahlul, ruling that the charges of which he was convicted - conspiracy, providing material support for terrorism and soliciting murder - were not internationally recognized as war crimes when the acts were committed.

Bahlul is serving a life sentence in the detention center at the Guantanamo Bay U.S. Naval Base in Cuba.

He acted as a publicist for Osama bin Laden's al Qaeda organization, making recruiting videos and taping the wills of some of the hijackers who slammed commercial jetliners into the World Trade Center, the Pentagon and a Pennsylvania field on September 11, 2001.

The same appeals court threw out the conspiracy conviction of one of bin Laden's drivers, former Guantanamo prisoner Salim Hamdan, in October, on similar grounds.

Prosecutors had stopped defending Bahlul's conviction and the court's three-paragraph ruling said it had been vacated "based on the government's concession."

The prosecutors have also asked that conspiracy charges be dropped against the alleged mastermind of the September 11 plot, Khalid Sheikh Mohammed, and four other men facing trial at Guantanamo.

Defense attorneys said the judge in that case was expected to grant the request at a pretrial hearing next week, although it had not previously been set for consideration until April.

The defendants in that case could still face the death penalty if convicted on other charges that include 2,976 counts of murder.

A Pentagon spokesman had no immediate comment.

The widely criticized Guantanamo war crimes court was established after the 2001 attacks to try foreign captives on terrorism-related charges outside the regular U.S. civilian and military courts. It has completed only seven cases, and defense attorneys said the appeals court rulings had essentially nullified five of them.

'FANCIFUL NOTION'
Defense lawyers have long argued that conspiracy and providing material support for terrorism were not internationally recognized as war crimes before the 2001 attacks.

Congress made them war crimes under a law that was passed in 2006 and revised in 2009, but the courts have ruled the law cannot be applied retroactively.

The other charge against Bahlul, soliciting murder, was based on a violent video he made encouraging attacks on U.S. targets. The legal precedent for that charge arose from a U.S. Civil War case that involved only U.S. citizens.

That charge also had no precedent in the international laws of war, said Bryan Broyles, deputy chief defense counsel for the Guantanamo tribunals.

"The only basis on which the United States relied was their fanciful notion of U.S. common law of war, something which doesn't actually exist," Broyles said.

James Connell, a defense lawyer for September 11 defendant Ali Abdul-Aziz Ali, said the ruling highlighted the lack of neutrality in the Guantanamo court system, where the same Pentagon appointee, known as the convening authority, decides what charges will go to trial, what the maximum penalty will be and who will make up the jury pool.

"Every time we can get in front of a court with no vested interest, we win," Broyles said.

In addition to Bahlul and Hamdan, who were convicted by military juries, three other Guantanamo captives pleaded guilty to charges the appeals court has now ruled were not recognized as war crimes when committed.

Although those three waived their right to appeal by pleading guilty, defense lawyers have said they could ask to have the convictions vacated.
 
View from Guantanamo: Families of 9/11 Victims Frustrated By Pace of Trials

http://www.wnyc.org/articles/wnyc-n...-families-911-victims-frustrated-pace-trials/

By Brigid Bergin
Monday, January 28, 2013

A new set of pre-trial motions for Khalid Sheikh Mohammed and the four other men accused of plotting the September 11 terror attacks starts Monday. The five are being tried before a military commission at Guantanamo Bay.

In January 2009, Retired Deputy New York City Fire Chief Jim Riches attended the proceedings. He was one of about a dozen family members picked from a lottery to see the trial of alleged mastermind of the attacks that killed his son and almost 3,000 others.

"We were in the courtroom behind the plexi-glass and we could look in and see the whole trial," he said. But while he was there the trial was stopped. President Barack Obama signed an executive order suspending the military trials at Guantanamo Bay.

What followed was legal and political haggling, including a heated debate over whether to bring the accused terrorists to New York City to face federal trial in civilian court.

Eventually, President Obama reversed his decision and the military trials resumed. Riches met with the president after his trip to Guantanamo. He says he was promised "swift and certain justice."

Four years later, Riches sat in a corner booth at the Fort Hamilton diner just across the street from the last stop of the Brooklyn R train. He held up a picture of his 29-year-old son, Jimmy, wearing his dress uniform. Jimmy Riches was a fireman, like his father. He worked for Engine 4 in Lower Manhattan, and was in the North Tower when it came down.

"It's very difficult," explains Riches who describes finding his son's body crushed in a stairway along with other men from his company. Riches’ family has grown since then, with marriages and births, but he said life will never be the same.

"You always miss him. What would Jimmy do if he was here, he lit up the room everybody is like, 'whoa, Jimmy's here.' He was a character," Riches recalled. Jimmy was the oldest of four brothers. An all-City basketball player who continued to play ball at Belmont Abbey College in North Carolina, where his number 20 was retired just this past weekend. "It tears your heart out and you just, you miss him everyday no matter what."

As lawyers present pre-trial motions this week, Riches believes something is wrong.

"You know, I'm not saying take the guy out and string up and hang 'em. You know, let's hear the process, let's get it going," he said. "But 10 years later, we're still at square one."

It's not exactly square one, though, says Karen Greenberg, director of the Center on National Security at Fordham University Law School. She understands Riches' frustration "from the point of view of somebody who just cannot believe that we haven't tried these individuals in such a long amount of time." But says there are a myriad of reasons the legal process is moving at such pace, including the fact that officials are creating the legal process at the same time that they're using it.

"If you understand how complicated a trial is and then you make a trial about something of such magnitude," she explained, "You see how creating the process and living inside at the same time is very hard."

For this week's round of pre-trial motions being heard by the military commission, Phyllis Rodriguez was one of the family members picked to go to Guantanamo. Her 31-year-old son, Gregory, worked in the IT department of the investment firm Cantor Fitzgerald in the North Tower of the World Trade Center.

When she remembers that September morning, she thinks of all the messages on her answering machine from friends asking whether her son was alright. And then there was the one from Greg.

"He said, 'Um, I'm at the Trade Center. There's been a disaster. I'm ok'," she said.

He never came home.

Rodriguez says going to Guantanamo is important to her for several reasons.

"First and foremost, I'm going there because the trials are there or the hearings are there," she said. She, along with the other families going, also plans to meet with the judge the chief prosecutor. "But we're also going to meet with members of the five defense teams, and I'm particularly interested in that."

She's is a member of a group called September 11th Families for Peaceful Tomorrowos. In the years since her son's death, she's tried to channel her energy towards an organization that works for nonviolent causes around the world.

As lawyers on both sides have been working hard for justice, she says she believes the process has been flawed. And for her, justice doesn't equate to closure.

"We're not going to get closure because [that] implies you can say, 'ok, I'm over my grief.' It doesn't work that way. We're going to live with it the rest of our lives. Putting someone on trial, putting him to death, giving them a life in prison or indefinite detention, that doesn't make me feel any better," she explained.

It's a delicate balance, Rodriguez says, living with the loss and the grief. That will be with her as she sits through the military commission. She expects there will be times during the hearings where she won't want to talk anyone but other families traveling down to the hearings. She also expects the days to be long with few breaks.

This round of hearings will run through the end of the week, and another pre-trial hearing is already scheduled for February. A new lottery will pick which victim's families can attend. And it's a cycle that will continue until the lawyers finish presenting all their motions.

According to experts, the actual trial for the five men accused of plotting the attacks may not start until sometime next year.
 
Lawyer Fired in 9/11 Case at Guantanamo

http://abcnews.go.com/International/wireStory/lawyer-fired-911-case-guantanamo-18338761

By BEN FOX Associated Press
GUANTANAMO BAY NAVAL BASE, Cuba January 29, 2013 (AP)

A Guantanamo Bay prisoner charged in the Sept. 11 attacks fired one of his military attorneys Monday in an apparent sign of distrust of his Pentagon-appointed legal counsel.

Waleed bin Attash at first refused to speak when questioned by the judge about his desire to dismiss one of his three lawyers, Marine Corps Maj. William Hennessy. He hinted at his motivation later in an exchange with the judge about whether he wished to attend future sessions of the court.

"We have been dealing with our attorneys for about a year and a half and we have not been able to get any trust with them," the Yemeni said through an Arabic translator.

The dismissal of the attorney came at the start of what is expected to be a four-day hearing to address a wide range of often abstract pretrial legal issues.

Bin Attash is one of the lesser figures among the five defendants in the Sept. 11 case. He allegedly ran an al-Qaida training camp in Afghanistan where two of the 19 hijackers in the terrorist attacks trained. He is also believed to have been a bodyguard for Osama bin Laden.

Defendants in the military tribunal have civilian counsel in addition to military lawyers. Khalid Sheikh Mohammed, who has portrayed himself as the mastermind of the Sept. 11 attacks, added an additional death penalty specialist, California lawyer Gary Sowards, to his team Monday.

The lawyer ousted by bin Attash said in an interview outside court that he is prohibited from discussing the details of his conversations with the defendant. But he said there was no specific incident that precipitated his dismissal.

"It had nothing to do with substance, nothing to do with my work on the team, no disagreements over anything," he said.

Instead, he said the move was sparked by the defendant's distrust of the military tribunals. He said all five defendants generally distrust the military attorneys appointed to represent them.

"It's not a surprise if one of us gets released," he said. "It's understood that there is a sense of 'I'll use you but don't get too comfortable.' ... For all of us on the defense teams it's day to day."

Cheryl Bormann, the civilian lawyer for bin Attash, said the ability to build a relationship with him has been hampered by the inconvenience of traveling to the U.S. base in Cuba and security rules that include requirements that all written communications with the defendants be monitored in what she says is a violation of the attorney-client privilege.

"Clearly, the ongoing interference ... with the attorney-client privilege has caused harm and he expressed that," she said outside court.

Most of the hearing Monday, in both open court and in a separate closed session, focused on arguments over the rules for handling classified evidence in a case considered one of the most significant terrorism prosecutions in U.S. history.

At one point, as a lawyer for Mohammed was discussing a motion to preserve the clandestine CIA prisons as evidence, part of a defense move to prove their clients were tortured, a courtroom monitor turned on a white noise machine, preventing spectators from hearing the proceedings.

The five defendants face charges that include nearly 3,000 counts of murder for their alleged roles in planning and aiding the Sept. 11 attacks. They could get the death penalty if convicted in a trial that is likely at least a year away.
 
No point attending Guantánamo terror trial, says accused 9/11 plotter
Walid bin Attash protests against prosecution's secrecy and accuses government of intruding into attorney-client privilege

http://www.guardian.co.uk/world/2013/jan/28/guantanamo-terror-trial-accused-9-11

guardian.co.uk, Monday 28 January 2013 17.16 EST

One of the alleged plotters of the 9/11 attacks has accused prosecutors in a hearing at Guantánamo Bay of placing so many restrictions on defence lawyers that there is no point in attending his own trial.

Walid bin Attash's outburst came after the five accused, including the alleged mastermind of 9/11, Khalid Sheikh Mohammed, sat in silence for hours as defence lawyers filed motions protesting at government intrusion into attorney-client privilege.

The military judge, Colonel James Pohl, told each of the alleged terrorists they had the right to choose not to attend this week's preliminary hearing, or to only attend parts of it. When Pohl asked each in turn if he understood, Bin Attash seized the moment to speak out.

"We have no motivation to come to court. We have been dealing with our attorneys for a year and a half, and we have not been able to build trust with them. Their hands are bound. The prosecution does not what us to hear or understand or say anything. They don't want our attorneys to do anything," he said.

Bin Attash's lawyer, Cheryl Bormann, who dresses in a black abaya out of respect to the religious sensibilities of her client, complained that she is obliged to turn over to the government copies of written confidential communications with him. Defence lawyers also raised issues about the handling of classified information, saying that it restricted their right to properly investigate issues.

The defence allegations of overly intrusive control were reinforced by an incident in which an invisible censor suddenly blacked out part of the proceedings to the public and press sealed off from the court and fed audio through a 40-second delay. The blackout came just as the defence began to discuss a motion to have Pohl issue an order preserving as evidence the secret overseas prisons where Mohammed, who appeared in court in a camouflage jacket with a beard dyed orange using berry juice, was waterboarded 183 times and the other accused allegedly tortured.

When the sound returned after about a minute, a defence lawyer protested that it had cut him off from reading material that is in the public record, including the title of his own motion.

The judge, clearly unsettled by the event, expressed surprised and said it was as "if some external body is turning the commission off". However, prosecutors did not appear to be surprised and said they would only discuss the matter in secret.

The accused men each face a range of charges, including 2,976 counts of murder. But the status of accusations of conspiracy remain unclear amid a dispute between the Obama administration and prosecutors at Guantánamo Bay following US appeals court rulings in other cases that conspiracy is not an offence under international law.

The chief prosecutor, Brigadier General Mark Martins, wants to drop the conspiracy charges because he believes the dispute about their legality will delay the trial further and provide grounds for appeal. But the Pentagon and justice department have told Martins they want the charges to remain pending a potential supreme court ruling on the issue.

Even without the conspiracy charge, the murder charges against Mohammed and his co-accused are enough to get them the death penalty. But relatives of some of those killed in the 9/11 attacks say they do not want to see the men executed.

Loreen Sellitto, whose 23-year-old son Matthew died in the World Trade Centre, said the accused men would suffer more in an American prison.

"I don't think there would be any better hell for them than to be under our rule. Death is too good," she told New York Daily News. "I would be very comfortable knowing that these men have to spend the rest of their lives locked up and controlled for the rest of their lives by the country they tried to destroy."

Phyllis Rodriguez, whose son Greg, 31, also died on 9/11, objected to executions on human rights grounds. "What kind of society are we if we condone state-sanctioned murder?" she said.

Rodriguez is supported by her husband, Orlando, who has previously testified in the case of attempted hijacker, Zacarias Moussaoui, to ask that he be spared the death penalty.

Later this week, the court is expected to hear motions seeking to require former President George W Bush to testify in the case, and to require the US government to produce official documents that authorised the CIA to abduct alleged terrorists and move them across international borders to the "black sites" for interrogation, a process known as rendition.

Defence lawyers are arguing that the CIA's mistreatment of the accused men was illegal "outrageous government misconduct" that should lead to the dismissal of the charges against the men.

"By its nature, torture affects the admissibility of evidence, the credibility of witnesses, the appropriateness of punishment and the legitimacy of the prosecution itself," the defence said in a written submission to the court.

Martins has said the government will not use evidence obtained from torture or similar treatment in its case.

For all the shortcomings of the Guantánamo trials, there was further evidence that the Obama administration has abandoned any attempt to fulfil the president's 2008 campaign promise to shut them down.

The New York Times reported that the State Department on Monday reassigned Daniel Fried, the special envoy for closing the Guantánamo prison, and will not replace him. Congress blocked Obama from moving the prisoners held in Cuba to the US for trial.
 
Guantanamo Secret Censor Frustrates Judge In 9/11 Case

http://www.huffingtonpost.com/2013/01/28/guantanamo-secret-censor_n_2568595.html

Posted: 01/28/2013 8:26 pm EST

GUANTANAMO BAY NAVY BASE, Cuba --A judge expressed frustration on Monday that an unknown U.S. government entity censored his courtroom audiovisual feed, cutting public access to pretrial hearings for five accused Sept. 11 plotters.

"If some external body is turning the commission on or off based on their own views of what things ought to be, with no reasonable explanation ... then we’re going to have a little meeting about who turns that light on and off," said the judge, Col. James Pohl.

Pohl's comments came after an unknown censor cut off a live media feed to the court proceedings as David Nevin, a lawyer defending Khalid Sheikh Mohammed, began discussing his request for information on his client's case.

Proceedings at Guantanamo's maximum-security court are broadcast over closed-circuit television to journalists observing from an adjacent room. Additional reporters monitor the feed from a nearby media center, and at Fort Meade, Md.

A red light resembling a police emergency beacon goes off in the courtroom when the censorship button has been activated. A court security officer positioned next to the judge has the ability to dump the feed if anything secret arises. That officer didn't activate the censorship button on Monday.

Defense attorneys said they didn't previously know that someone outside the courtroom could cut off the feed.

"I would like to know who has the permission to turn that light on and off, who is listening to this, who is controlling these proceedings, or controlling that aspect of these proceedings," Nevin said.

The censorship light has come on before, but always when activated by the court security officer, James G. Connell III, a lawyer for Abul Aziz Ali, said at an evening press conference. "I thought that there was one button and it was under the control of the court security officer," he said.

Justice Department counterterrorism lawyer Joanna Baltes said in court on Monday that the government would provide information on the censorship during a closed court session. The judge will address the matter on Tuesday, lawyers said.

Col. Mark Martins, the chief prosecutor at Guantanamo, declined to classify the activation of the censorship light as a mistake. Martins said the defense lawyers should have known about censors outside the courtroom.
 
Secrecy Continues to Dominate 9/11 Hearings

http://www.huffingtonpost.com/daphne-eviatar/secrecy-continues-to-domi_b_2568437.html

Posted: 01/28/2013 3:12 pm

It was another chaotic day at the Guantanamo military commissions.

When Khalid Sheikh Mohammed's lawyer started talking this afternoon about his request for information pertaining to his client's case, someone -- it's not clear who -- hit the censor button. The audio feed turned to static. About a minute later, the screen went black. Even those physically sitting in the courtroom at Guantanamo Bay, separated from the judge, lawyers and defendants by soundproof glass, couldn't hear the actual exchange taking place in the court.

When the sound finally came back on several minutes later, Col. James Pohl, the military commission judge presiding over the September 11 war crimes case, looked baffled. He turned to the prosecutors and asked them who hit the censor button. Justice Department lawyer Joanna Baltes said she'd tell him later, in a secret session. But no one seemed to know who had the authority to censor the proceedings and on what grounds it had been done.

None of this is very auspicious for the trial of the five men accused of the most heinous terrorist attack ever perpetrated on U.S. soil. Although the judge earlier approved a 40-second delay in the audio feed from the courtroom to allow a government censor to shut down the feed if classified words were spoken, he doesn't seem to know who's in charge of carrying out his order.

Whether defense counsel in the 9/11 case can even speak in open court about wanting information from the government about the conditions of their clients' confinement -- let alone whether the government has to provide that information -- remains in doubt more than 11 years after the 2001 terrorist attacks took place.

A day of hearings at the Guantanamo Bay detention center once again highlighted the government's insistence on keeping secret anything related to the torture and abuse of the five accused men. It also highlighted the uncertainty of the rules governing the military commissions, which is making it so hard to get this trial off the ground.

Repeatedly, lawyers for the defendants and for the government argued to the judge about the different procedures that apply in different courts -- from the state courts of California to the federal court in Washington, D.C.. Each tried to analogize to those other courts' long-established rules to argue for the rules they want to govern this military commission proceeding. That's because the rules that actually govern this proceeding and these military commissions are still so unclear, more than a decade after the first Guantanamo military commission was created. It's not even clear to what extent the U.S. Constitution applies.

So far, the arguments at these pre-trial hearings are still mostly about the defense lawyers' access to evidence and ability to communicate with their clients. They're preliminary matters, but important ones that go to the heart of the legitimacy of the future trial and verdict. Yet because the military commissions are so new and untested -- it's hasn't yet held a contested trial on the merits of a single case -- the lawyers on both sides can spend months, or even years, arguing over what rules should apply.

So far, that's exactly what seems to be happening.
 
Who Controls the Censors at 9/11 Mastermind Tribunal?

http://www.pbs.org/wgbh/pages/front...trols-the-censors-at-911-mastermind-tribunal/

January 28, 2013, 5:45 pm ET by Arun Rath

The latest round of hearings at the military commission trying 9/11 mastermind Khalid Sheikh Mohammed and four co-defendants opened today at Guantanamo, but by the end of the day it appeared that the judge was not entirely in control of the proceedings.

Attorneys were preparing to argue a defense motion to preserve evidence from CIA “black sites” overseas, where Mohammed and others were kept and interrogated before being transferred to Guantanamo. David Nevin, Mohammed’s lead attorney, had barely spoken a few words before the audio feed from the courtroom abruptly cut out. The courtroom feeds out its audio on a 40-second delay, so if any sensitive classified information is discussed, an appointed court security officer can kill the audio before the information can be heard.

However, in this instance, the court security officer was not responsible; in fact, when the feed was restored, Judge James Pohl was as confused as anyone as to what had happened. Clearly irritated, he announced that he had not initiated the cutoff, and he was, “curious as to why” it happened. Apparently, someone on the prosecution had killed the courtroom feed, or at least knew what was behind it. Prosecutor Joanna Baltes suggested to the judge that the parties discuss the matter in a closed session.

Everyone else — including the assembled journalists, and seemingly the judge himself — had been of the understanding that the court security officer was the only one with access to the button to cut off the feed. Several of the defense attorneys demanded to know who exactly had access to the switch, and even if there were other, unknown parties monitoring and controlling the courtroom feed. The judge said they would address those concerns in a closed session immediately following today’s open court session.

Tomorrow the judge will reveal what part of those conversations and arguments — if any — can be made public.
 
Strange censorship episode at Guantánamo enrages judge
Unseen monitor censors public’s view of war court, which surprises and angers the judge during hearings in the death-penalty case of accused 9/11 planners.

http://www.miamiherald.com/2013/01/28/3205391/strange-censorship-episode-at.html#storylink=cpy

GUANTANAMO NAVY BASE, Cuba -- Someone else besides the judge and security officer sitting inside the maximum-security court here can impose censorship on what the public can see and hear at the Sept. 11 trial, it was disclosed Monday

The role of an outside censor became clear when the audio turned to white noise during a discussion of a motion about the CIA’s black sites.

Confusion ensued. A military escort advised reporters that the episode was a glitch, a technical error. A few minutes later, the public was once again allowed to listen into the proceedings and Army Col. James Pohl, the judge, made clear that neither he nor his security officer was responsible for the censorship episode.

“If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation,” the judge announced, “then we are going to have a little meeting about who turns that light on or off.”

His comments appeared to be aimed at the Pentagon prosecution team. Attorney Joanna Baltes, representing the Justice Department on secrecy matters in the case, advised the judge that she could explain what other forces have a hand in censoring the court proceedings. But not in open session.

The alleged 9/11 mastermind Khalid Sheik Mohammed and his four accused conspirators were sitting in court, listening to everything that was being said — from the part that the public was forbidden to hear to the judge’s demand for an explanation. Three of the defendants adorned their traditional white tunics with camouflage, an attire option they won from the judge to appear at trial as self-styled soldiers.

The strange censorship episode occurred as attorney David Nevin, defending Mohammed, was advising the judge that defense lawyers had wanted to argue a motion in court to preserve whatever remained of the CIA’s secret overseas prison network. Prosecutors had filed a classified response to the request, and the judge asked the two sides if they would let their motions speak for themselves. Nevin was explaining why not.

Defense lawyers argue the alleged 9/11 conspirators were tortured in the so-called “black sites,” and that the U.S. government has lost its moral authority to seek their execution. The CIA set up the sites during the Bush administration, reportedly in Poland, Romania, Thailand and elsewhere. President Barack Obama ordered them closed.

The lawyers want the judge to order the government to preserve what’s left of them, six years after Mohammed and his co-defendants were moved to Guantánamo for trial. This is a familiar role for Pohl, who was the judge in the 2004 trials of U.S. soldiers for detainee abuse at Abu Ghraib and declared the prison in Iraq a crime scene, forbidding its demolition.

Unclear so far in these hearings is whether the judge knows where the black-site prisons were and whether any of them remain. Although he has a special security clearance to hear the 9/11 case, the CIA has not yet released classified information to the court because the defense and prosecution are still haggling over a protective order.

But to court observer Phyllis Rodriguez, the judge appeared “furious” and “livid” when he realized that that outsiders had their finger on the censorship switch of his courtroom.

“It’s a ‘whoa moment’ for the court,” said Human Rights Watch observer Laura Pitter. “Even the judge doesn’t know that someone else has control over the censorship button?”
 
9/11 relatives, defense attorneys share emotional meeting
For 90 minutes, family members of 9/11 victims met with the lawyers who are defending the men accused of planning the attacks that killed almost 3,000 people.

http://www.miamiherald.com/2013/01/28/3205262/911-relatives-defense-attorneys.html#storylink=cpy

GUANTANAMO BAY NAVY BASE, Cuba -- Some victims wept. So did at least one of the U.S. military officers assigned to defend the accused Sept. 11 conspirators at their murder trial.

For 90 exceptional minutes Sunday, lawyers for the accused terrorists and the parents of young men killed in the World Trade Center huddled in a ramshackle hangar at the war court ahead of this week’s hearing. And they exchanged stories through a veil of pain.

“In the beginning there was discomfort. There was some anger. There was some tears,” said Phyllis Rodriguez, whose 31-year-old son Greg was killed working at the finance firm Cantor Fitzgerald on the 103rd floor of the World Trade Center on Sept. 11, 2001.

But by the end, said Loreen Sellitto, mother of 23-year-old Matthew who also was killed at Cantor Fitzgerald, “I saw them love our Constitution. Their goal is to present a case and defend someone. It’s what our country is built on.”

The victims’ family members have always been the most painful part of these proceedings. Chosen by lottery from a Pentagon list of parents, children and spouses of the Sept. 11 dead, they number at most 10, are brought to this base in special Defense Department charter flights, put up in townhouses and squired around the base by both plain-clothed and uniformed escorts eager to accommodate.

Others eligible for the Guantánamo lottery can watch remotely from four closed-circuit sites along the Eastern Seaboard from Massachusetts to Maryland.

And while some of the family members have flatly refused to meet with defense lawyers and expressed disgust that these men should be afforded robust government-funded defense teams, this week’s trip included the rare meeting between some of the victims’ family members and those who have taken an oath to defend their kin’s accused killers.

The session was closed. Some participants declined to speak of it. Others recounted that it started out with one victim’s mother asking the lawyers how they had come to represent Khalid Sheik Mohammed and four other men accused of conspiring in the murder of 2,976 people, their sons included.

Or, as Rodriguez, who instigated the meeting, put it: “How does it feel to be representing such horrible people?”

Some lawyers spoke of their duty as officers of the court, and to the U.S. military and U.S. Constitution. One mentioned that his wife wasn’t happy with his choice to take the case, but that somebody had to do it.

Then one defense lawyer gingerly told the group that he would be asking the judge this week to allow his client to get a call from home. Ammar al Baluchi’s father had died and he wanted to speak to his mother. Both the military and Red Cross would listen in on the call.

One of the family members offered the opinion that “these guys should suffer. I don’t think he should talk to his mother,” said a defense lawyer who was in the room. Rodriguez said she thought not of the accused but of Baluchi’s mother.

“I felt very sad,” she said. “I felt sad for his mother.”

Left unsaid was that, should the tribunal ever convict these men, family members of victims will be asked to testify in the punishment phase of the Sept. 11 death penalty trial.

And these defense lawyers, civilian and military, argue that their clients were so brutally tortured in CIA custody that the United States lost the moral authority to execute them.

Two of the family members offered that they also oppose execution in this case.

Rodriguez, who lives in White Plains, N.Y., said she’s morally opposed to the death penalty “in this case or any case. I don’t think the government has a right to take a life.”

Sellitto, a Naples snowbird from Morristown, N.J., had a different motive. Give them life sentences, she said.

“We would control when they eat, when they pray, when they exercise,” she explained. That way, they would be confronted day in and day out with “the culture they tried to destroy.”

Baluchi’s death-penalty defender, Jay Connell, who invariably mentions at press conferences that the victims are in our “thoughts and meditations,” said it was a painful but important meeting.

“People cried. People expressed themselves beautifully.”

Was it hard?

“Anything involving Guantánamo is hard — from opening one’s email to talking with people who have lost loved ones.”

“There was crying,” confirmed Lt. Col. Sterling Thomas, a career Air Force lawyer who said he was among those who teared up.

Later, John Woods, a Rockland County, N.Y., man who served as a Marine in Vietnam, said he chose to stay away.

He lost his 26-year-old son, Jimmy, in the World Trade Center, too, and could barely choke out, “He was a great guy,” when speaking to reporters about what brought him to Guantánamo Bay.

His wife Joyce, Jimmy’s mother, finished for him: “We miss him every second of every day. We’re here to bear witness, hopefully to see justice.”

But the path to justice is proving to be a slow one.

Rather than focus on the terrible crime that took their loved ones’ lives, these court proceedings are about the rights of the men accused of carrying out the crime. Legal motions argued in court Monday discussed the protective order controlling classified evidence in the case, and the addition of Los Angeles defense lawyer Gary Sowards to Mohammed’s case and alleged al Qaida lieutenant Walid bin Attash’s apparent decision to fire Marine Maj. Bill Hennessy from his team.

Mohammed and Bin Attash wore camouflage jackets atop their traditional white tunics to court, and sat mute as the judge asked them about the changes in their defense team.

Meantime, Justice Department lawyer Joanna Baltes noted in court, the process of turning over classified evidence in the case to the defense lawyers has not yet begun. An actual trial before a tribunal of military officers is likely a year or more away.
 
Not Only Does 9/11 Trial Have a Censor, But No One Can Know Who It Is

http://www.huffingtonpost.com/daphne-eviatar/not-only-does-911-trial-h_b_2573911.html

Posted: 01/29/2013 11:10 am

A military commission judge's attempt to explain this morning why the 9/11 pre-trial hearing being held at Guantanamo Bay was briefly blacked out from observers yesterday has only caused more confusion.

Beginning the hearing of the five alleged September 11 co-conspirators this morning, Judge James Pohl said a "security officer" is in charge of cutting off the feed when he believes something classified is being discussed. The judge didn't say who or where this security officer is or on what basis he makes his decision that the matter is classified. He didn't even clarify whether there is just one security officer in the courtroom, or others receiving the real-time audio feed elsewhere with the ability to press the censor button.

In the situation yesterday, Judge Pohl explained, whoever it was should not have cut off the feed because Khalid Sheikh Mohammed's attorney, David Nevin, was merely talking about his motion to obtain evidence of secret CIA detention facilities, commonly known as "black sites," which has been filed in court and posted on the public docket. Obviously a reference to it can't now be considered classified.

Ultimately, Pohl said, he's the one in charge of deciding when to "close the courtroom" -- that is, when to cut off the audio feed that lets observers hear the proceedings. Still, he acknowledged that there are several audio feeds going to several different places, including one real-time feed that goes straight to the court reporter. And Judge Pohl said he's not sure who hears that feed.

The judge was candid about his own confusion: "We're relying on what we think the technology is, not knowing what it is."

That's not making the defense lawyers feel any better about it. Defense attorney David Nevin stood up to say that it's important that he be able to turn off his microphone so no one -- whether the court reporter or some unnamed government security officer somewhere -- so he can have confidential conversations with his client. As KSM's attorney, he's ethically required to maintain his client's confidentiality.

Defense lawyer Cheryl Bormann echoed those concerns. Is the audio feed to the court reporter recording her conversations with her client, Walid bin Attash? If so, it's a violation of court rules as well as her ethical obligations.

Pohl, who's presiding over the 9/11 case but didn't invent the elaborate censorship technology created to limit the public's access to it, agreed with the defense lawyers' concerns. He just didn't know how to answer any of their questions.

He promised to allow the lawyers to call witnesses later to explain to the court how the courtroom technology works.
 
Monitor Outside Gitmo Tribunal Has Power to Censor Proceedings Without Judge’s Knowledge

http://dissenter.firedoglake.com/20...-censor-proceedings-without-judges-knowledge/

By: Kevin Gosztola Tuesday January 29, 2013 12:32 pm

On the eleventh anniversary of detainees being brought to Gitmo in the War on Terror, people demonstrate in Washington, DC.

The Guantanamo war court was deciding whether to go into a closed session yesterday. David Nevin, who is representing 9/11 suspect, Khalid Sheikh Mohammed, was speaking in court about the decision to argue some of a motion involving evidence of CIA black prison sites. The audio feed went off for three minutes and court was off-record for about three minutes.

Judge Col. James Pohl noted, “The 40-second delay was initiated, not by me. I’m curious as to why.” Nevin had simply been reading the caption to an unclassified motion. “If you don’t feel we can discuss this now, let me know, but I’m just trying to figure out.” The government wanted to explain what happened to the judge in a secret session.

“I want to address this too because I want — if some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because I, there is no classification on it, then we are going to have a little meeting about who turns that light on or off,” Pohl responded.

Nevin addressed the court, “I would like to know who has the permission to turn that light on and off, who is listening to this, who is controlling these proceedings, or controlling that aspect of these proceedings.” He added, “I was under the impression that the [court security officer] was, commanded that light in this process.”

Cheryl Bormann, the defense counsel for Walid bin Attash (9/11 suspect), wished to state for the record that Nevin has been repeating the name of a defense motion but she decline to say it for fear of setting off the censor again. Navy Commander Walter Ruiz, who is representing Mustafa al-Hawsawi (9/11 suspect), told the judge, “The main concern is that moving forward from this point forward we know there is another body or party who is in control of this proceeding in turning that light on and off.”

“Before we proceed any further,” he added, “We can only assume that maybe they are monitoring additional communications, perhaps when we are at counsel table. We know we have green lights that have the ability to record. We think this is an answer and question we have to have precedent to proceeding with this commission.” (Note: It is not unreasonable for Ruiz to be suspicious. He challenged Rear Admiral David B. Woods when he was prison commander and authorized inspections of prisoner mail, including communications with attorneys.)

The government refused to provide an explanation in open court. They convinced the judge to allow them to explain in a secret session and then, maybe, the court would go on record during Tuesday’s session.

This morning, the press pool covering proceedings was under the impression there would be an explanation from a witness of what had happened. But, to the dismay of those covering the proceedings, reporters like Jason Leopold reported there would be no testimony because the judge did not know who to call to explain the technology in his courtroom. The judge even asked, “What technology is being used in this courtroom?”

The government, according to the Miami Herald‘s Carol Rosenberg, revealed an original classification authority (OCA) reviewed the feed. What that suggests is someone from or affiliated with the CIA can press a button and censor the proceedings at any moment they think sensitive information is about to be revealed. That person does not have to be in the courtroom nor does that person have to inform the judge ahead of time that he or she intends to cut the feed when certain information, including unclassified information, is raised in open court.

Daphne Eviatar of Huffington Post reported Nevin stood up to say “it’s important that he be able to turn off his microphone” so no one, a court reporter or some unnamed government security officer, can hear “confidential conversations with his client. As KSM’s attorney, he’s ethically required to maintain his client’s confidentiality.” Bormann echoed the concerns, “Is the audio feed to the court reporter recording her conversations with her client, Walid bin Attash? If so, it’s a violation of court rules as well as her ethical obligations.”

This scenario is exactly what press feared would happen if a 40-second delay was instituted.

In December, the military judge ruled statements involving reference to torture or abuse could be censored. The ACLU, Miami Herald, ABC, Inc., Associated Press, Bloomberg News, CBS Broadcasting, Inc., Fox News Network, The McClatchy Company, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company. Wall Street Journal, and the Washington Post all were opposed it as an “unwarranted closure of the court.”

The ACLU’s National Security Program Director, Hina Shamsi, contended the government wanted this ability to censor so accounts of “illegal CIA torture, rendition and detention” were not heard by the press or public. Shamsi found it shameful that “the most important terrorism trial of our time” was going to “be organized around judicially approved censorship of the defendants’ own thoughts, experiences and memories of CIA torture.” But, as this episode shows, not only does the referencing of CIA secret programs already in unclassified motions have the potential to be censored but the judge may not even approve the censorship. Not only will the government block the 9/11 suspects on trial from describing their experiences in US prisons but the government will also claim the authority to censor defense lawyers who are talking aspects already publicly known.

In the aftermath of this display of secrecy culture, the motion involving CIA black sites has been postponed until February. The defense wants evidence of prisons where the 9/11 suspects were held to be preserved. The attorneys contend the structures, designs and sizes of buildings where they were confined may have had an effect on whether they provided statements to interrogators voluntarily or involuntarily.

…The size of the room, the physical condition of the areas in which people were held before the interrogations, the location within the building in which they were held, the absence of light and the construction and design of areas of the bu ilding other than conf inement cells are highly relevant to the mental state and have all been cons idered as part of the totality of circumstances surrounding statements that render them involuntary…


Finally, in more significant news on Guantanamo Bay, President Barack Obama really does not plan to close the prison while he is President of the United States. Josh Gerstein of POLITICO reported, “The State Department has reassigned its top diplomat charged with emptying out the prison for terror suspects at Guantanamo Bay and effectively shuttered the office responsible for handling that issue.” Ambassador Daniel Fried, who was in charge of “resettling Guantanamo Bay prisoners” will now be in charge of coordinating the department’s sanctions policy (which will involve facilitating policies that starve Iranian children).

There are eighty-six prisoners in Guantanamo who have been cleared for release by a senior-level task force authorized by Obama, which consisted of “intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community.” But what Obama is telling them by reassigning its “top diplomat”—on top of signing an intelligence authorization bill last year that made it even harder to close the facility)—is that these people who are completely innocent should not hope that they will be going home any time soon.

Though they may have been notified that Obama’s task force had decided there was no reason to keep them in detention and they would soon be freed, there is no reason to have faith that Obama will take the action necessary to shut down the ongoing human rights abomination that is the Guantanamo Bay prison. Moreover, the second-class legal justice system for charging people suspected of committing crimes is wholly dysfunctional and the military commission is making it up as plods along at the speed of smell.

This monstrous creation of the national security state—both the detention facility and crafted legal system—intrudes upon lawyers’ communications with clients, seeks to control the thoughts and experiences of prisoners, censors proceedings without permission from the judge and holds innocent people in indefinite detention depriving them of any hope of seeing their family or home again. It is worse than totalitarianism because it masquerades as the work of individuals committed to transparency, justice and fairness while at the same time consistently employing measures befitting a dictatorship.
 
Accused 9/11 plotters boycott hearings at Guantanamo

http://www.google.com/hostednews/af...ocId=CNG.848266dcf5b3a2740c0991b656699a59.4d1

(AFP) – 2 hours ago

US NAVAL BASE AT GUANTANAMO BAY, Cuba — Five accused 9/11 plotters boycotted their pre-trial hearing Tuesday in a Guantanamo courtroom, a day after authorities censored part of the proceedings.

The self-proclaimed mastermind of the September 11, 2001 attacks, Khalid Sheikh Mohammed, and four other defendants face the death penalty if convicted of the murder of nearly 3,000 people on September 11, 2001 in the worst ever attack on US soil.

But they chose not to attend Tuesday's hearing, the second in the latest round of proceedings that will prepare the way for a trial at the remote naval base in Guantanamo Bay, Cuba.

"The five detainees are not present in the courtroom today," said military Judge James Pohl.

An officer from the prison at Guantanamo, where the accused and other terror suspects are detained, said the defendants informed him verbally and in writing that they would not attend the proceedings on Tuesday.

"They were very clear to me both in their oral statement and by signing the waiver," said the officer, whose name was not released.

One of the suspects, Yemeni Walid bin Attash, said at Monday's hearing that the defendants had no "motivating factor" to come to court.

"Our attorneys are bound and we are bound also," he said. "The government doesn't want us to say anything, to do anything."

The hearings at the high-tech, maximum security court are broadcast over a closed-circuit television feed with a 40-second delay for journalists and others observing the proceedings in a nearby room, a media center and at Fort Meade in Maryland, outside Washington.

But a portion of the hearing was censored Monday and the feed was cut off when lawyers began discussing the sensitive subject of CIA prisons where the five accused were detained and interrogated before being transferred to Guantanamo.

The defense maintains that the CIA "black sites," whose location remains classified, should be preserved because they constitute potential evidence that the five were tortured at the prisons.

The five suspects underwent harsh interrogations before they were taken to Guantanamo, including water boarding -- or simulated drowning. Mohammed was subjected to water boarding 183 times, according to the CIA.

Military prosecutors argue that any discussion of the CIA's detention program has to remain classified to protect intelligence sources and methods that could prevent a future attack.

The judge expressed frustration on Monday that "an external body" had apparently cut off the audio and video feed.
 
Lawyers for 9/11 suspects ask to be locked up at Guantánamo
Defence team requests to spend two nights in prison cells in order to understand conditions in which 9/11 accused are held

http://www.guardian.co.uk/world/2013/jan/29/lawyers-9-11-suspects-guantanamo

guardian.co.uk, Tuesday 29 January 2013 13.56 EST

Lawyers defending Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and four of his co-accused have asked to be locked up for two nights in the Guantánamo prison in order to understand the conditions in which their clients are held.

The US government has objected to the request on the grounds that it "could endanger the lives of those involved in such a visit" and instead offered an escorted tour.

But one of the military defence lawyers, Lieutenant Commander Kevin Bogucki, likened the government's offer to the "jungle ride at Disneyland", where visitors think the mechanical elephant is real. He said he wanted a "full and meaningful inspection".

None of the defence lawyers have ever seen inside the maximum security facility, Camp 7, where detainees captured and tortured by the CIA – including Mohammed, who was waterboarded 183 times – are held.

David Nevin, a lawyer for Mohammed, said he wants to visit Camp 7 in order to understand his client's "behaviour and his actions in open court, and also his reaction to his current conditions of confinement." He said it was necessary "particularly in the context of a person who was tortured".

The defence also said that conditions, and torture, may be used as factors during any sentencing phase.

The military judge, Colonel James Pohl, expressed surprise at the request. "You want to sleep with your client?" he asked one of the defence lawyers, Commander Walter Ruiz.

"No, I don't want to sleep with my client," responded Ruiz, who represents Mustafa al-Hawsawi. Ruiz said he intended to sleep in a nearby cell.

A government lawyer, Major Rob McGovern, said the authorities would agree to the lawyers visiting the prison but only on a two hour escorted trip without the detainees present. He derided the notion that defence lawyers would be walking around in their client's shoes for 48 hours.

Pohl said that what the government was proposing was "kind of like an open house: the family's not there, but they can see things". He questioned what harm it could do to have the prisoners present during the visit. McGovern said it was to ensure the safety of the visiting attorneys. Defence lawyers said they did not feel in danger from their own clients.

Government lawyers said that inspections by the international committee of the Red Cross were sufficient monitoring of prison conditions. But Ruiz accused the government of using "the ICRC as both a sword and shield" by saying that the Red Cross said conditions met international standards while refusing to release ICRC reports to the defence. The prosecution claimed the Red Cross reports are classified.

The request came on a second day of the latest preliminary hearing to set the terms of the full trial, as defence lawyers challenged what they say are myriad unreasonable restrictions and voiced suspicions that the government is spying on protected attorney-client communications though microphones in the court.

None of the five accused were in court on Tuesday after refusing to attend.

The defence team's concerns were heightened by an incident on Monday in which an unseen censor blanked out part of the audio relay from the sealed court room to the public and press without the judge's authorisation.

Pohl described it as "if some external body is turning the commission off" and addressed the issue again on Tuesday, saying that only he had the authority to order such a move and admitting that he didn't know what technology being used in his own court, and who is listening in.

However, he declined to explain what had happened in open court.

Joanna Baltes, a prosecution lawyer, said that the "original classification authority" – thought to mean the CIA – reviews the audio feed but it was not clear if it cut the sound.

Defence lawyers said they were concerned that the government and prosecution were eavesdropping on privileged discussions with their clients in the court room.

There was vigorous debate over how much of the full trial will be held in camera, and how much evidence will be kept classified, with one defence lawyer suggesting that the process smacked of secret trials in Fidel Castro's Cuba.

Attorneys for the alleged 9/11 attackers also objected to a "protective order" by the military court, which requires the defence to provide summaries in advance of witnesses testimony, even where there are no security concerns. A government lawyer then said that would no longer be required.

Pohl sidestepped a defence request to order preservation of CIA "black sites" overseas, where the detainees were interrogated and tortured.

He said he will address the issue at another hearing in February, although it seems unlikely that any evidence of their use as interrogation centres remains.

The judge also declined a request from one of the defendants, Ammar al-Baluchi, to make a videophone call to his mother in Pakistan following the death of his father last year. The court was told that Guantanamo inmates have made about 1,800 phone calls to relatives in their home countries since 2008. But detainees who have been held at CIA black sites are denied the opportunity.

Pohl said that while he sympathised with the loss of a parent he did not have the authority to force the issue with the prison authorities.

Some relatives of those killed on 9/11 were strongly opposed to the accused organisers of the attack being able to phone home.
 
Judge Overrules Censors in Guantánamo 9/11 Hearing

http://www.nytimes.com/2013/01/31/u...o-hearing-points-to-outside-censors.html?_r=0

By CHARLIE SAVAGE
Published: January 30, 2013

WASHINGTON — The Defense Department released a transcript on Wednesday of what it said was an exchange that had been censored from the public video feed of a military tribunal at Guantánamo Bay, Cuba, this week. A military judge had ordered the excerpt made public.

The blocked comments came during a pretrial motions hearing on Monday in the case against Khalid Shaikh Mohammed and four other detainees accused of aiding the attacks of Sept. 11, 2001. The episode was the first public indication that censors outside the courtroom were monitoring the live video from the tribunal and that they could cut the feed, which is delayed by 40 seconds before it can be viewed by the public and reporters.

During the censored portion, according to the transcript, David Nevin, a defense lawyer, was discussing whether arguments over a motion “will turn out to be closed or secret” regarding the preservation of evidence “at a detention facility,” an issue he said was “a critical matter to Mr. Mohammed” and “central to the case as far as he is concerned.”

The lawyers then became aware that a red light had gone on, indicating that the courtroom had been closed. But the button in the courtroom had not been hit by the only previously known censor, a security officer who sits near the judge, Col. James Pohl of the Army.

Mr. Nevin was apparently referring to the Central Intelligence Agency’s secret prisons in countries like Romania and Thailand where the agency once held the Sept. 11 defendants; the defense plans to argue that its clients should be spared execution because the C.I.A. tortured them. But Mr. Nevin did not mention such details, and his motion “to preserve evidence at any existing detention facility” was unclassified, Colonel Pohl said.

“If some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation,” the judge told government lawyers, “we are going to have a little meeting about who turns that light on or off.”

On Tuesday, Colonel Pohl read a government statement that said an “original classification authority” — apparently a reference to the C.I.A. — was also monitoring for disclosures of classified information. He insisted that the judge decided whether to close the courtroom.

It was not clear whether the offstage censors were at the base or watching remotely; the public feed is shown to reporters at Fort Meade in Maryland.

A military spokesman declined to comment.
 
Case Against Accused 9/11 Mastermind, Co-Conspirators Bogged Down In Procedural Issues

http://www.ny1.com/content/top_stor...conspirators-bogged-down-in-procedural-issues

GUANTANAMO BAY, CUBA - Hold a trial at a high-security military base in Cuba, and you get logistical headaches. Throw in a brand-new military commission system without clear rules, and things move very slowly.

"Unfortunately, we are still at the very early stages of this case," said Laura Pitter of Human Rights Watch. "We're litigating very key issues about just how the lawyers are going to communicate with their clients. We still don't know the answer to that question."

Indeed, whether the government can monitor communications between the defendants and their attorneys is just one issue being heard this week. Also, how should classified information be handled? Can the public hear about so-called black sites, secret CIA overseas prisons where terror suspects were held? What about the defendants if the commission goes into closed session?

"If the military commission does close, are the defendants allowed to hear what's being said about their case?" said James Connell, attorney for Ammar al Baluchi. "That's an unsettled question in the military commissions."

"Litigating each of those issues is taking an enormous amount of time," Pitter said.

Human Rights Watch is among the groups that still wants the trial held in civilian court.

"The sad truth is that if this case had been tried in federal court, it would be over and done with by now," Pitter said. "There's no doubt about that."

"People project that this case wouldn't go to trial for two or three years," said James Harrison, attorney for Ramzi bin al-Shibh. "I think that's probably realistic."

Despite the security restrictions, the defendants have been accommodated in some ways. They are allowed to wear camouflage to court, for instance.

September 11th victims' families here this week said they believe the process, while slow, is fair, and designed to hold up on appeal.

"For me, I feel frustrated," said Joyce Woods, who lost her son in the September 11th attacks. "However, I agree that this is our system, and I think that they're being very cautious to do everything correctly."

Pre-trial hearings resume Thursday morning, then pick up again on February 11 after a week-and-a-half break.
 
Judge in 9/11 Case Orders End to Outside Government Censors

http://www.nytimes.com/2013/02/01/u...s-end-to-outside-government-censors.html?_r=0

By CHARLIE SAVAGE
Published: January 31, 2013

FORT MEADE, Md. — The military judge overseeing the prosecution of Khalid Shaikh Mohammed and four other detainees accused of aiding the Sept. 11 terrorist attacks ordered the government on Thursday to disconnect the technology that allows offstage censors — apparently including the Central Intelligence Agency — to block a public feed of the courtroom proceedings at Guantánamo Bay, Cuba.

The order by the judge, Col. James L. Pohl of the Army, followed an interruption on Monday of a feed from the military tribunal courtroom during a pretrial motion hearing in the Sept. 11 case. The interruption brought to light that unidentified security officials outside the courtroom could censor a feed of the proceedings that the public and the media are allowed to view on a 40-second delay.

“This is the last time,” Colonel Pohl said, that any party other than a security officer inside the courtroom who works for the commission “will be permitted to unilaterally decide that the broadcast will be suspended.”

He added that while some legal rules and precedents governing the military commissions were unclear, there was no doubt that only he, as the judge, had the authority to close the courtroom. While officials may disagree about whether classified information had been improperly disclosed, he made clear he would not tolerate any outside party having control over a censorship button in his case.

“The commission will not permit any entity except the court security officer to suspend the broadcast of the proceeding,” Colonel Pohl said. “Accordingly I order the government to disconnect any ability of a third party to suspend broadcast of the proceeding, and I order any third party not to suspend proceedings.”

The 40-second delay in the closed-circuit broadcast from the high-security courtroom at Guantánamo Bay was instituted to allow a censor to block transmission of the proceedings to the public and reporters if classified information was inadvertently disclosed. But until Monday, there was no public sign that anyone other than the courtroom officer near Colonel Pohl could turn off the transmission. The feed is shown at Fort Meade as well as at a press room at Guantánamo.

The interruption came as David Nevin, a lawyer for Mr. Mohammed was discussing arguments over a pending motion regarding the preservation of evidence “at a detention facility.” Colonel Pohl expressed surprise and anger, saying Mr. Nevin had not said anything classified and that his security officer in the courtroom had not hit the censor button.

Colonel Pohl on Tuesday ordered the government to add to a public transcript the portion of the proceeding that had been blocked from transmission, and read a cryptic partial explanation from the government that an “original classification authority” — apparently a reference to the C.I.A., since that is the agency that ran the secret “black site” prisons where the Sept. 11 defendants were previously held — was also monitoring the live feed for any disclosures of classified information.

The revelation that there were offstage censors monitoring the live feed of the transmission prompted concern from the defense lawyers, who on Thursday asked Colonel Pohl to stop any further consideration of motions in the case until they all could learn more about who is monitoring what communications related to the case.

In particular, the lawyers said, they wanted to know whether their confidential conversations with their clients or other counsel inside the courtroom and in attorney-client meeting rooms were being surreptitiously monitored.

In addition, late on Wednesday, the Pentagon disclosed that the “convening authority,” an official who oversees the military commissions system, had withdrawn charges against three other detainees who had been charged with conspiracy and providing material support to terrorism in connection with accusations related to explosives training in preparation for attacks.

The three — an Algerian, Sufyian Barhoumi, and two Saudis, Jabran Said Bin Al Qahtani and Ghassan Abdullah al Sharbi — were all arrested in a 2002 raid on a Qaeda-linked safehouse in Pakistan that captured a more prominent terrorism suspect, Abu Zubaydah. Each was charged in the final days of the Bush administration, but their cases had not yet been referred to a commission for arraignment.

In terse announcements added to the docket for each of their cases, the military said the convening authority, retired Vice Adm. Bruce MacDonald of the Navy, had decided to withdraw the charges based on the recommendation of his legal adviser. The charges were dismissed “without prejudice,” meaning they could later be refilled.

The validity of the charges of material support and conspiracy — at least for actions before October 2006, when Congress listed those offenses in a statute authorizing military commissions — has been a point of contention among officials involved in the tribunal system. A federal appeals court in Washington has in recent months vacated guilty verdicts by a tribunal in 2008 against two detainees facing such charges because they were not recognized as war crimes under international law.

The chief prosecutor of the military commissions system, Brig. Gen Mark Martins, asked Admiral MacDonald to withdraw “conspiracy” as one of the charges pending against the Sept. 11 defendants in light of the appeals court’s reasoning, saying the offense created an unnecessary appellate risk for the case and that they should focus on legally sustainable charges like attacking civilians.

But Admiral MacDonald refused to withdraw the charge in the Sept. 11 case, saying it would be “premature” to do so since Attorney General Eric H. Holder Jr. had decided — over General Martins’s objections — to press forward with arguing in court that conspiracy was a valid offense in commissions. It was not clear why it was premature to drop the charge in the Sept. 11 case, but not in the other three.

Separately on Thursday, Colonel Pohl ordered Admiral MacDonald to testify at the next week of hearings in the case, which begin on Feb. 11. Defense lawyers are seeking to scuttle the charges and reboot the case, alleging that the original referral of the capital charges to the tribunal by Admiral MacDonald was defective and tainted by unlawful influence.
 
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