9-11 PRETRIAL ISSUES EXAMINED

FROM: U.S. DEPARTMENT OF DEFENSE
Commission Tackles Complex Pretrial Issues in 9/11 Case
By Donna Miles
American Forces Press Service

FORT MEADE, Md., Jan. 31, 2013 - The judge presiding over pretrial hearings for five defendants charged with orchestrating the 9/11 terrorist attacks ruled today at Naval Station Guantanamo Bay, Cuba, that only he will have the authority to block audio feeds believed to contain classified information.

Army Col. James Pohl, wrapping up the latest round of hearings for Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the attacks, and four co-defendants admonished the unnamed "original classification authority" that had activated a censor button in the courtroom earlier this week.

The button sets off a flashing warning light and blocks the audio for anyone observing the proceedings via closed-circuit TV, as well as media who sit behind soundproof glass in the courtroom.

The Jan. 28 incident caught Pohl and others by surprise, and he subsequently ordered that information disclosed during about two minutes of static be admitted to the court record. He also ordered the government to disconnect technology that enables anyone but him and his security officer to activate the mute button.

"This is the last time an [original classification authority] or any third party can decide if it can be unilaterally decided," Pohl decreed. "The pubic has no unfettered right to access classified information. However, the only person who is authorized to close the courtroom is the judge."

Activation of the warning light prompted the defense team to question who may be listening in on and presumably censoring the proceedings, as well as their confidential discussions with their clients. David Nevin, Mohammed's lead defense attorney, submitted an emergency motion to halt the proceedings until the matter is resolved.

He expressed concern that confidential discussions between the defense team and defendants could be jeopardized. During a news conference following today's proceedings, Nevin, as an example of his concern, questioned why guards at the detention facility ask what language defense attorneys will use during meetings with their clients.

Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, explained during the news conference that court feeds are used by court reporters to provide accurate records of the proceedings.

"The prosecution never listens to any confidential communications between the accused and their counsel," he said in a statement. "To do so would be a blatant violation of our professional responsibilities and our oaths to serve justice and would also implicate the court reporters in a breach of their oaths and neutral responsibilities. And let me be clear that there has never been any substantive or credible allegation that the prosecution listens to such conversations."

Navy Cmdr. Walter Ruiz, one of the defense attorneys, called the "invisible hand" that activated the mute button emblematic of the flawed commission system. Ruiz called it a "counterfeit system" that defies America's values, ideals and legal principles.

Much of the week's hearing -- which ran Jan. 28 and 29, recessed during Jan. 30 and wrapped up today -- involved complicated legal issues regarding procedures for the government to provide classified information to the defense team. Before receiving it, the defense must sign a memorandum of understanding agreeing to how that information will be handled.

The defense team also objected to requirements that they submit information about their witnesses in advance, telling Pohl it will disadvantage their cases by giving the prosecution advance notice of the approach they are taking.

Pohl acknowledged that nobody wants "trial by surprise," but ruled that the defense must articulate why they want any particular witness to testify.

In an unusual twist during this week's hearing, the defense attorneys asked Pohl to allow them to spend two nights in Camp 7, where the defendants are detained. They told the judge they hope to get a better sense of the conditions their clients are living under. Pohl did not rule on the request.

In addition to Mohammed, the other defendants are Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi. All five defendants were captured in Pakistan in 2002 and 2003 and have been confined at Guantanamo Bay since 2006.

They were charged during their arraignment in May 2012 with terrorism, conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft.

The prosecution has since requested that the conspiracy charge be dropped.

Exercising a right clarified earlier this week, all of the defendants opted to skip today's court proceedings. Pohl ruled, however, that they must attend the opening day of their next pretrial hearing Feb. 11.

A trial date has not been set. "Jury selection will take many months," as will the trial itself, Martins told reporters today. That's to be expected in complex criminal prosecutions, "particularly one with this much at stake," he added.

Defense attorney James Connell condemned what he called an uncharacteristically long and cumbersome commission process. He complained to reporters that this week's pretrial hearings, and those before them, had consumed "so much time and so much money," while "accomplishing so little."

Nevin defended the defense team's challenges to the commission system. Doing so, he said, ensures the process remains true to the spirit of U.S. law, seeks to "honor, rather than disrespect" the memory of those killed in the 9/11 attacks.

Family members who lost loved ones during 9/11 were mixed in their impressions of the system. Phyllis Rodriguez, who lost her son Greg on 9/11, told reporters that the case should be tried in U.S. federal court. This would make the process more open and transparent and allow more Americans to see the process, she said.

Rodriguez added that she opposes the death penalty and doesn't want any of the defendants to receive it.

Matthew Selitto, whose son Matthew was killed on 9/11, disagreed, calling Guantanamo Bay the appropriate venue for the commissions. Selitto told reporters he believes the defendants are getting a fair shot at justice. "There are not too many countries in the world today where they would get the chances they are being given," he said.

His wife, Loreen Selitto, said delays in the commission process are hurtful to families. She urged the legal teams to "do your jobs" and "get justice moving."

She said she felt pride seeing the men and women who serve at Guantanamo Bay. It demonstrated "the strength of my country and all you do to serve us," she said.

PRETRIAL HEARINGS BEGIN FOR 9/11 MASTERMIND AND OTHERS

World Trade Center After 9/11.  Photo Credit:  U.S. Navy.  

FROM: U.S. DEPARTMENT OF DEFENSE
Pretrial Hearings Kick Off for 9/11 Defendants
By Donna Miles
American Forces Press Service

FORT MEADE, Md., Oct. 15, 2012 - Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the 9/11 terrorist attacks, and four co-defendants charged with planning and carrying out the attacks have the right to skip court proceedings regarding their case, Army Col. James Pohl, the judge, ruled today.

Pohl's decision kicked off a week of pretrial hearings that opened today at Naval Station Guantanamo Bay, Cuba. The court is expected to address a docket of 25 administrative and legal issues ranging from what defendants can wear in court to measures to prevent classified information from being divulged during the trial.

The judge ruled that Mohammed, Walid Muhammad Salih Mubarak bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi can elect not to attend their court proceedings. The caveat, Pohl said, is that they must understand their right to attend and the potential disadvantages of not doing so.

Based on the ruling, the defendants would have the right to submit a waiver request each morning that court convenes, and waivers would cover only that single day. Defendants who change their minds during the day could notify the guard force and attend court if it's possible to get them to the court facility after they make their request.

Mohammed, with a red, henna-dyed beard, wore eyeglasses, white robes, a black vest and white headpiece, sat with his defense counsel in the front row of the courtroom. His co-defendants, also dressed in white, sat quietly behind him, one in each row.

All five defendants were captured in Pakistan in 2002 and 2003 and have been confined at Guantanamo Bay since 2006.

They were charged during their arraignment in May with terrorism, conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft.

Although none answered Pohl's questions during the arraignment in May, the defendants showed more signs of cooperation today. Each responded affirmatively when Pohl asked them individually to confirm that they understood his ruling. Mohammed responded, "Yes, but I don't think there's any justice in this court."

Some of the defendants asked questions to clarify the ruling, and Binalshibh raised concerns about guards who might intentionally misrepresent a defendant's intentions. Several of the accused seemed to be puzzled or even amused when Pohl asked if they understood that their trials would proceed even in the unlikely event that they were no longer in U.S. custody at the time, such as in the event of an escape.

During discussions that dominated today's session, Army Brig. Gen. Mark S. Martins, chief prosecutor in the Office of Military Commissions, argued that the defendants should be required to attend court proceedings, particularly in a capital case. Martins cited legal precedent, saying the accused have the explicit right to be present as their cases are presented, but not necessarily the right to be absent. "Apathy or disdain for the proceedings does not qualify as good cause [for absence]," he said.

James Harrington, Binalshibh's "learned counsel" who is experienced in handling death-penalty cases, disagreed. Harrington said defendants should be able to skip court as long as they acknowledge they have voluntarily waived their right to attend and understand that their cases could suffer as a result. Denying their request not to participate in the legal process could, in fact, violate their constitutional rights, he said.

James Connell, Abdul Aziz Ali's learned counsel, echoed that argument, noting that defendants who don't want to attend court can get removed by disrupting the proceedings. In this case, they are removed from the courtroom to individual holding cells, where the proceedings are piped in through closed-circuit TV. This, Connell said, amounts to a "waiver by conduct."

In other developments during today's hearing, Hawsawi requested additional legal representation through an interpreter. His counsel, Navy Cmdr. Walter Ruiz, a Navy reservist with experience in capital cases, requested Navy Cmdr. Suzanne Lachelier as a "resource counsel" to support his legal defense.

Lachelier previously represented bin al Shibh, which Pohl noted could cause a conflict of interest as the two defendants' cases move forward. Both of the accused agreed to waive any objections.

In another motion filed today, Cheryl Bormann, bin Attash's learned counsel, asked for a larger workspace and more resources for his eight-person defense team. A second work area the team had been using was plagued by rodents and mold, but has since been sanitized and declared useable by engineers and industrial health officials at the base, officials said. However, Bormann told Pohl the space is making her staff sick.

The motion hearings originally were slated to begin in August, but were postponed when Tropical Storm Isaac forced the commander to order nonessential personnel to evacuate the base. The proceedings already had been delayed a day after a coal-train derailment near Baltimore damaged fiber-optic lines that carry Internet traffic to and from Guantanamo Bay, including the defense and prosecution teams there.

Pohl said he plans to conduct additional hearings with one-week sessions beginning in December and continuing one per month through March. The tribunals are expected to begin sometime next year.

This week's proceedings are being broadcast via closed-circuit television to a media center here.

Five family members who lost loved ones in the 9/11 attacks were selected by lottery to attend the proceedings at Guantanamo Bay, as well as five support people to accompany them, officials said. Other families have been invited to watch via closed-circuit TV at Fort Meade, Fort Dix, N.J., Fort Devens, Mass., and Fort Hamilton, N.Y. However, only four family members accepted the invitation, and are watching at Fort Hamilton.

Spectators in the courtroom are sitting behind soundproof glass, and the proceedings are being rebroadcast with a 40-second delay to ensure classified information is not inadvertently revealed.