GUANTANAMO BAY NAVAL BASE, Cuba (CN) - Lawyers for the self-professed mastermind of the Sept. 11, 2001, attacks and his four alleged co-conspirators told a military judge Tuesday that a protective order barring mention of their treatment by the CIA violates the Convention Against Torture.
Khalid Sheikh Mohammed, who boasted before his capture of being the architect of the attacks on the World Trade Center and the Pentagon, initially faced a military commission with five co-conspirators. Four of those men, Ramzi bin al-Shibh, Walid bin Attash, Ammar al-Baluchi and Mustafa al-Hawsawi, still face charges before the commission.
In 2009, the military's then-convening authority Susan Crawford declined to prosecute the last suspected "20th hijacker," Mohammed al-Qahtani, because she said his treatment by the military fit "the legal definition of torture."
On a tour of the war court here, Guantanamo Bay supervisor John Imhof told reporters it currently has five holding cells because of the dropped charges against al-Qahtani, who allegedly would have been part of the suicide mission if a Florida agent had not deported him days before the worst terrorist attacks in U.S. history.
The circumstances behind al-Qahtani's aborted prosecution remained fresh on the minds of lawyers for the remaining Sept. 11 suspects. They cited the case in their bid to have a military judge remove what they allege to be barriers in investigating U.S. government "war crimes" against their clients.
Prosecutor Clayton Trivett Jr. countered that the commission was about the "summary execution" of nearly 3,000 people in the United States, not allegations of their torture.
At Monday's press conference, the chief prosecutor, Brig. Gen. Mark Martins, noted that the eventual trial for these attacks may be delayed by parallel proceedings for the alleged plotters in the U.S.S. Cole
bombing off the coast of Yemen. He said this month marks the 13th anniversary of those attacks, which occurred on Oct. 12, 2000.
At issue on Tuesday was a two-page "memorandum of understanding" from Feb. 7, 2013 obligating defense attorneys to not disclose classified information. Lawyers for four out of the five suspects refused to sign it, and the fifth, James Connell, acceded because he said it did nothing more than emphasize the terms he agreed to already.
Cheryl Bormann, a Chicago attorney specializing in death penalty cases who represents bin-Attash, said the document was, at best, a redundancy that she compared to a court order requiring prosecutors to share exculpatory information.
At worst, she said it was an order to "gag my client in violation of a treaty that the United States is a signatory to," referring to the Convention Against Torture.
"I am offended by that," she said.
Before the hearing, Maj. Jeffrey Wright, the military lawyer for Mohammed, protested having the hearing without testimony from former United Nations Special Rapporteur on Torture Manfred Nowak, who would have told the commission about the treaty.
Signed by the United States in 1988 and ratified in 1994, the treaty obligates countries to investigate allegations of torture and to punish those who commit torture. It makes no exceptions for war or national emergency, and forbids classifying evidence that supports the claims.
Prosecutors say the suspects do not have access to the treaty because it is "not self-executing," meaning it requires an act of Congress to enforce it.
At the press conference, Cmdr. Walter Ruiz mentioned that he was not legally allowed to answer publicly whether al-Hawsawi was tortured because the evidence that he had was classified.
Wright, Mohammed's military counsel, chimed in that he was freer to respond because his client's being subjected to water boarding 183 times is now a matter of public record. The major referred to the so-called "enhanced interrogation technique" as a "mock execution," echoing the words of Sen. John McCain, a torture survivor.
The American Civil Liberties Union uncovered the information about Mohammed's water boarding during a Freedom of Information Act request to lift redactions on the CIA's inspector general's report, Wright noted.
The lawyers indicated several legal actions to probe, uncover and use evidence of their clients' alleged mistreatment both in and outside the United States.
Connell said he hoped to pass on information to members of Congress who have the appropriate security clearances. Ruiz sought to share some of the information about his client with third-party human rights group interested in "collateral litigation" in other countries, and with Saudi government officials who were denied access to the prison.
Prosecutor Trivett called the motion a "form of graymail," an intelligence term for a threat to reveal classified information to gain strategic advantage in the court case.
Referring to internal oversight at Guantanamo and federal court proceedings, he added, "[Defense attorneys] have means available to them, but they don't have the means available to them that they would prefer." He later characterized these procedures as "robust."
The military judge, Col. James Pohl, asked what practical remedies such a "robust" system allows, facetiously proposing "compensation" or to "let them out of jail."
The defense attorneys had moved to dismiss the charges or take the death penalty off the table if they cannot pursue these leads.
Conceding that dismissal is not likely, Ruiz said, "Nobody here is even close to talking about financial compensation," adding that they have not even won the right to access the reports by the International Committee of the Red Cross. He urged the judge to "do what you can with what you have."
When Ruiz quoted President Barack Obama's remarks drawn from the Convention Against Torture, Judge Pohl countered, "If the President of the United States wanted to declassify this information, he certainly can, and we wouldn't be having this conversation."
The judge indicated that the outcome might turn on whether he has the jurisdiction to grant the relief defense attorneys want.
Attorney Cheryl Bormann said even a limited ruling can shine light on the abuse allegations.
"Sometimes it takes one domino to tip," she said. "There are a lot of things that can spring from decisions."
Meanwhile, the defense attorneys' decision not to sign the memo might impact their ability to sit in on classified sessions. Prosecutors requested to exclude every lawyer for the suspects from the room except Connell, who signed the memo.
David Nevin, a civilian attorney for Mohammed, said the government took the "inconsistent position" that the memorandum imposed no new obligations on the lawyers, and that failing to sign it made them a security risk.
Growing frustrated, Judge Pohl said, "When does it end, Mr. Nevin? That's what I'm asking." He added that he ordered the memo in February, and defense attorneys only lodged objections to it in August.
Insisting he tried "in good faith to make a genuine effort to understand our obligations," Nevin said, "All I mean to say is, it seems to me is what we get around classification is that it neither is a sword or a shield. We lose on the classification, always. It always diminishes our rights."
The judge said he would not force them to leave immediately for "this particular hearing," which continued in closed session that afternoon.
Imhof, the Guantanamo supervisor, noted that the war court has one of two "SCIF-ed" courtrooms safe for classified disclosure in the nation, using the acronym for "sensitive compartmented information facility." The other is the Foreign Intelligence Surveillance Court in Washington, he said.
Spectators - including press, non-governmental organizations and victims of the Sept. 11 attacks - view the proceedings behind a soundproofed plexiglass. The video and audio feeds are transmitted after a 40-second delay, allowing remarks to be translated and screened for classification review before being transmitted.
The open session Tuesday appeared to be uncensored, and they will resume on Wednesday morning. Editor's Note: The original version of this article described an allegation about the treatment of Mohammed al-Qahtani by the CIA. The allegation actually concerned military treatment of al-Qahtani. Courthouse News regrets the error.