Key 9/11 Suspect To Be Tried In New York

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Who Controls the Censors at 9/11 Mastermind Tribunal?

http://www.pbs.org/wgbh/pages/frontl...mind-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.

[Gold9472]

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/2013/01/2...#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?”

[Gold9472]

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/2013/01/2...#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.

[Gold9472]

Not Only Does 9/11 Trial Have a Censor, But No One Can Know Who It Is

http://www.huffingtonpost.com/daphne...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.

[Gold9472]

Monitor Outside Gitmo Tribunal Has Power to Censor Proceedings Without Judge’s Knowledge

http://dissenter.firedoglake.com/201...ges-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.

[Gold9472]

Accused 9/11 plotters boycott hearings at Guantanamo

http://www.google.com/hostednews/afp...b656699a59.4d1

(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.

[Gold9472]

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...cts-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.

[Gold9472]

Judge Overrules Censors in Guantánamo 9/11 Hearing

http://www.nytimes.com/2013/01/31/us...sors.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.

[Gold9472]

Case Against Accused 9/11 Mastermind, Co-Conspirators Bogged Down In Procedural Issues

http://www.ny1.com/content/top_stori...cedural-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.

[Gold9472]

Judge in 9/11 Case Orders End to Outside Government Censors

http://www.nytimes.com/2013/02/01/us...sors.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.