Key 9/11 Suspect To Be Tried In New York

[Gold9472]

9/11 Military Commission: More Tragedy Than Farce

http://www.huffingtonpost.com/daphne...b_2602312.html

2/1/2013

It would almost be funny if it weren't so sad. Four days of military commission hearings at Guantanamo Bay this past week yielded little more than confusion about the law and heightened suspicion of the U.S. government. Any steps toward bringing to justice the five co-defendants accused of the murder of nearly 3,000 people on September 11, 2001, were barely perceptible.

To an ordinary observer, the most memorable parts of the pre-trial hearing in the 9/11 case were when the audio feed turned to static and the video screen went black while Khalid Sheikh Mohammed's defense lawyer addressed the court. The sudden censorship was a complete surprise to the judge, Col. James Pohl, who admitted he had no idea who was in charge of the censor button.

All of the proceedings in the 9/11 case are broadcast to an audience at Guantanamo or at Ft. Meade, Md., via an audio feed that operates on a 40-second delay, to prevent an accidental leak of classified information.

But all along, both observers and participants in the trial had thought it was the judge or his court security officer who was deciding when to black out the proceedings. Suddenly, everyone learned that wasn't so. Including the judge. He wasn't happy about it.

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

Meanwhile, Joanna Baltes, a Justice Department lawyer representing the government on secrecy matters in the case, seemed to know who was censoring the proceedings but said she could not talk about it in open court. (Apparently it was just the mention of the word "secret" that prompted the censorship.)

The next day, Judge Pohl clarified that only he is in charge of closing the courtroom. But he still couldn't say who had pressed the censor button the day before. By the final day of the hearing, he ordered that no one outside his courtroom would again be allowed to hit the censor button. Still, he didn't say who else might be listening in to the proceedings in real-time, or what exactly they could hear.

That prompted a whole new set of concerns from the five teams of defense lawyers, who wanted to know if a government official was listening to their conversations with their clients. "Until this question is resolved, it's impossible to know if we're fulfilling our ethical obligations" to maintain the confidentiality of attorney-client communications, David Nevin told the judge on Thursday, handing him a file of papers that he said contained an "emergency motion to abate the proceedings" until "we get to the bottom of this."

By Thursday afternoon, the judge had agreed to suspend the proceedings until someone in charge could come and testify about what's being recorded and who is listening to it.

Most of the rest of the hearing was taken up with arguments over what evidence the government must produce to the defense teams concerning the five suspects' treatment in U.S. prisons and whether there was any unlawful government influence over the prosecution of the case. Because the military commission rules are new and have no legal precedent, the lawyers relied on a mix of federal, state and military court martial rules to make their case. It was never clear exactly which of those laws are relevant to the military commissions. Indeed, it's not even clear if the U.S. Constitution applies there.

After a week's worth of this, the whole case seemed like a comedy of errors. Only for the family members of victims of the September 11 attacks, there was nothing funny about it.

On Thursday afternoon, the mother of 23-year-old Matthew Sellitto, who died in the World Trade Center when it was attacked in 2001, addressed the lawyers and the media. "I'm perplexed," she said. "You came on board knowing it was a military tribunal. I hear a lot of talk within your testimonies to the judge concerning federal law," she said. "Why are you having so much problem with the law? I don't understand why it's coming up so much."

Phyllis Rodriguez, the mother of another 9/11 victim, Gregory, added that after watching the proceedings for a week, "I do not think this [military commission] is the right venue to try these men" because the United States did not go to war until after the 9/11 attacks. She added that it "disturbs me" that the lawyers weren't getting the evidence they were asking for: "It's not being given the way it would be in a federal court."

The potential for injustice in the military commission was particularly disturbing to her, she said, because the five defendants in this case could receive the death penalty. "Since my son was murdered in the World Trade Center, I d not want to see any more people put to death to cause their families suffering."

[Gold9472]

Guantánamo spills its secrets slowly, in surprising ways

http://www.thestate.com/2013/02/03/2...l#.UQ_KPeha7Al

Carol Rosenberg - Miami Herald
2/3/2013

GUANTANAMO BAY NAVY BASE, Cuba — Once the war court revealed that a secret censor had silenced a defense lawyer arguing at hearings in the 9/11 case, the question became what other Guantánamo secrets was the military covering up?

How many hidden hands had the ability to censor the court by remote control? What intelligence agencies did they represent? Are they at this remote base — or reaching into the court called Camp Justice from U.S. soil?

“We’re not going to get into the specifics of any security protocols,” said Army Lt. Col. Todd Breasseale, the Pentagon’s spokesman for the war court.

Up next at the death-penalty trials is whether U.S. intelligence agencies, or the military, are also listening in on defense lawyers’ confidential conversations. Accused 9/11 mastermind Khalid Sheik Mohammed and his alleged four accomplices are back in court on Feb. 11, but defense lawyers want an emergency hearing on eavesdropping before Monday’s pretrial hearings in the USS Cole bombing case.

Guantánamo, meantime, gives up its secrets slowly.

And in surprising ways — like the 500-pound training bomb that Superstorm Sandy churned up in the bay in October.

It took the same storm to find out that the base’s marina for troops taking a social sail off the coast of Cuba was valued at nearly $8.9 million. Sandy washed away its pier, along with six recreational sailboats. But the base still won’t say whether it got money to buy new sailboats in Congress’ $50.5 billion Sandy bailout bill.

Now defense attorneys want to test the prison camps’ motto of “safe, humane, legal and transparent” detention with a 48-hour sleep-over at Guantánamo’s crown jewel of secrecy — Camp 7. That’s the lockup where a clandestine unit called Task Force Platinum keeps the Sept. 11 accused and other men who were held for years in the CIA’s overseas prisons.

“You want to sleep with your client?,” Judge James Pohl asked a defense lawyer on Tuesday, to the snickers of spectators.

Not with client but nearby, said Navy Cmdr. Walter Ruiz, attorney for Mustafa Hawsawi, a Saudi man accused of helping the Sept. 11 hijackers with funding and travel to the United States.

Plus, Ruiz wants follow-up visits every six months.

In the military, harsh pre-trial conditions could create what lawyers call a mitigating factor as they argue against these men getting the death penalty if convicted of plotting the worst terror attack on U.S. soil. These defense lawyers say their clients were tortured in U.S. custody, and the Pentagon has lost the moral authority to execute them.

To gather evidence, the defenders want a two-night stay at the lockup and are asking Pohl to put a protective order on what’s left of the “black sites” where the CIA waterboarded Mohammed 183 times and interrogated all five 9/11 accused before they got to Guantánamo in 2006.

Prosecutors countered with an offer of a two-hour escorted tour of Camp 7.

It’s so secret that, outside the military, only members of Congress are known to tour it. In February 2009, a trio of members from Texas reported they got to peer through one-way glass to watch Mohammed inside a stark cell, kneeling on a prayer rug with head bowed.

But to this day the Pentagon won’t divulge to taxpayers how much they paid to build it, what builder got the contract, or when.

Now the defense lawyers want 48 hours inside the place, to draw sketches or take pictures, to interact with their clients. All that information starts out Top Secret —defense lawyers have high-level security clearances like the prosecutors. But the judge could allow some details to come out in court.

Prosecutors say the a two-hour tour would let the lawyers visit their clients’ cells, once the accused 9/11 conspirators are taken away.

Navy Cmdr Kevin Bogucki, attorney for an alleged plot deputy, Ramzi bin al Shibh, compared the proposed trip to the Jungle Cruise at Disneyland. Visitors ride past animatronic hippos and elephants, seeing precisely what management wants them to see.

Judge Pohl likened the idea to “an open house but the family is not there so you don’t know how things are day to day.”

Defense lawyers say 48 hours gives them an idea of what it’s like when the guards are on their very best behavior. Nobody in court suggested that the guards can sustain it for just two hours and not 46 more.

But veteran defense attorney Jim Harrington of Buffalo came closest.

He told the judge he’d defended a civilian guard who was accused of killing a prisoner after captive spit on captor at Attica — and got enough access in trial preparation to “go see the corners where you could take people to beat them.”

“We not only have to have an intellectual understanding of something, we have to have an emotional feeling for it,” he told the judge.

Episodes that embarrass won’t be hidden because they embarrass, says Army Brig. Gen. Mark Martins, the Pentagon’s chief war crimes prosecutor. But America is still waging a war on terror, he reminds, and some information can help the enemy.

So transparency is a pick-and-choose process at Guantánamo.

This week, the judge announced that he alone will choose when to close court, with the help of a security officer at his elbow who can mute the audio feed of open proceedings to the outside world.

Now he gets to decide if defense lawyers get a two-hour tour or a two-night sleepover at Guantánamo’s secret prison. If Pohl writes out his ruling, the intelligence agencies get up to 15 work days to scrub it before posting it on the place the public can see — the Pentagon war court website beneath the motto “Fairness * Transparency * Justice.”

Unless, of course, the judge chooses to rule aloud —in open court.

[Gold9472]

U.S. faces construction quandary at aging Guantanamo camp

http://www.reuters.com/article/2013/...91205P20130203

By Jane Sutton
GUANTANAMO BAY U.S. NAVAL BASE, CUBA | Sun Feb 3, 2013 8:02am EST

(Reuters) - The U.S. failure to shut down the detention camp at Guantanamo has Captain John Nettleton in a predicament.

As commander of the Guantanamo Bay Naval Base in eastern Cuba, he is in charge of making sure the prisoners and the troops and contractors who work at the camp have proper facilities. The problem is that he has no idea how long they will be staying.

"I haven't gotten any guidance on it whatsoever, so everything I'm doing right now is kind of just speculating on what's going on," Nettleton said in a weekend interview with Reuters. "From a resourcing standpoint, it's kind of frustrating to not know if they're going to be permanent residents or not."

The prison camp holds 166 men captured in counterterrorism operations after the September 11, 2001, attacks and costs $114 million a year to operate.

It is run by a military joint task force that is considered a tenant on the Navy base, which the United States opened in 1903 as a coaling station.

Many of the buildings that house and feed the 1,800-member task force are structures built to last five years and show signs of wear after standing for a decade in the salt air and broiling tropical sun.

Nettleton wants to replace the Seaside Galley, a Quonset-hut-like structure that serves as a cafeteria for the guards, interpreters, and other government employees and contractors working at the camp.

"We have to build a new galley but are we going to build it as a permanent galley or are we going to replace it with another temporary thing?" said Nettleton, a Navy pilot who has been the base commander since June 2012.

He would like to build permanent barracks for the guards, who are strewn in housing all over the base, many in beige metal trailers that look from the outside like self-storage lockers.

"There's a lot of projects we'd like to do that involve making life better for the soldiers and sailors that are over there," Nettleton said. But without knowing when the mission will end, "it doesn't make a lot of sense to ask for permanent buildings if they're going to be gone."

"When does it quit being a temporary place?" he asked. "That's the million-dollar question."

"JIHADI MEADOWS"
The message from Washington has been mixed. On taking office in 2009, President Barack Obama ordered the detention operation shut down within a year.

Many Americans balked because of security concerns and Congress passed laws making it harder to transfer prisoners out, even though about half of them have been cleared for release.

Obama signed a defense budget bill extending those restrictions last month, despite insisting Congress had no authority to exert "unwarranted interference" in decisions traditionally made by military commanders and national security professionals.

Obama said he remained committed to shutting down the detention camp that "weakens our national security by wasting resources, damaging our relationships with key allies and strengthening our enemies."

But last week, his administration closed the State Department office charged with resettling Guantanamo detainees and said the diplomat who led it would not be replaced.

Comedian Stephen Colbert called that a signal that it was time for America to embrace the Guantanamo prison as a "terrorist retirement community" and suggested renaming it "Jihadi Meadows."

Faced with opposition from New Yorkers, the Obama administration also backed down on plans to hold a federal court trial in New York for five captives accused of plotting the September 11 attacks.

Pretrial hearings in that case began in the Guantanamo war crimes tribunal in May 2012 and will resume on February 12. But it is anyone's guess when the complex trial will start.

One other case is also in pretrial hearings, that of a prisoner charged with orchestrating the bombing of the USS Cole off Yemen in 2000, an attack that killed 17 U.S. sailors.

SPANDAU PRISON?
The slow pace of the trials suggests the prison camp will stay open for the next few years, Nettleton said. The defendants in both cases could face execution after lengthy appeals or be sentenced to life imprisonment.

The latter raises the prospect that Guantanamo could become America's version of Spandau Prison, the internationally run facility in Berlin that held Nazi war criminals until the last one died in 1986.

Only three of the current detainees have been convicted of crimes, and one of those had his conviction overturned on appeal last month.

In addition to the handful facing trial and those cleared for release, there are about 46 prisoners that the United States considers dangerous enough to detain forever. But the government says it cannot prosecute them because it cannot link them to specific attacks.

Without a resolution of their fate, the prison buildings may someday have to be retrofitted for a geriatric population. The oldest detainee is already 65.

"We're building everything like they're going to go away next year or the year after and every year you say the same thing: ‘OK, well maybe they'll be leaving next year,'" Nettleton said.

"I think that's frustrating for everybody in the United States government. That's not just a J.R. Nettleton problem. From the president on down, it's just such a hard problem right now for everybody."

[Gold9472]

Other Views: Justice delayed

http://www.joplinglobe.com/editorial...ustice-delayed

Scripps Howard News Service
2/4/2013

— If, in 2009, Khalid Sheikh Mohammed and four other detainees accused in the 9/11 attacks had been tried in civilian criminal courts, especially the New York federal courts with their great experience in prosecuting terrorism cases, the sheikh and his co-defendants by now would have their verdicts, be deep into the appeals process and close to facing whatever fate the judiciary had in store for them.

The prison at Guantanamo Bay, Cuba, a continuing embarrassment and rebuke to our preaching about due process and the rule of law, would likely be closed, as President Barack Obama pledged to do early in his first term, and no longer a rallying cry for jihadi zealots.

Instead, the five defendants are still at the U.S. naval base and still awaiting trial by an untested military tribunal cobbled together for the occasion and still no nearer a resolution of the cases against them than they were almost four years ago.

Currently, the cases are tied up in preliminary appeals about what kind of access the defendants’ lawyers can have to their clients and interminable wrangling over how to handle classified evidence, matters that a civilian criminal court would have quickly disposed of.

An actual trial is a year or more away.

The Guantanamo legal process has become an embarrassment of political meddling and courtroom procedures seemingly made up on the fly. Guantanamo makes the notoriously slow International Criminal Court in The Hague look like a rocket docket.

The latest embarrassment, likely to confirm the view of foreign skeptics who view these proceedings as bogus, was the discovery that a censorship system was being controlled outside the courtroom, unbeknownst to the judge, blocking sound and video feeds of courtroom proceedings.

The exasperated judge has constantly battled efforts by the government, especially the CIA, to declare large volumes of evidence as classified and thus unavailable to the defendants and often their lawyers.

Seemingly confirming that Guantanamo is an embarrassment that will always be with us, the State Department closed the one-person office that was charged with repatriating or resettling those prisoners cleared for release.

Since Guantanamo opened, it has had 779 prisoners. We are basically stuck with the 165 who remain.

[Gold9472]

9/11 Case Is Delayed as Defense Voices Fears on Eavesdropping

http://www.nytimes.com/2013/02/12/us...ing.html?_r=1&

By CHARLIE SAVAGE
Published: February 11, 2013

FORT MEADE, Md. — The tribunal case against Khalid Shaikh Mohammed and four others accused of being accomplices in the terrorist attacks of Sept. 11, 2001, was delayed again on Monday as defense lawyers pressed forward with concerns that their confidential communications with their clients and other counsel may be subject to eavesdropping by the government.

While the judge, Col. James Pohl of the Army, expressed skepticism about the legitimacy of the defense’s fears, he agreed to postpone a scheduled pretrial-motions hearing for a day so the defense lawyers could finish interviews with audio technology officials who will be called on Tuesday to testify about the audio systems at the military prison and courtroom at Guantánamo Bay, Cuba.

All five defendants were in the courtroom on Monday, sitting quietly and leafing through papers. They spoke briefly, confirming to the judge that they understood their right to attend, or choose not to attend, other hearings in the next few days.

The defense raised the concerns about potential monitoring after an episode this month when the public feed from the courtroom, which is transmitted on a 40-second delay, was abruptly cut by an outside censor, apparently from the Central Intelligence Agency, after one lawyer made an oblique reference to the agency’s secret overseas “black site” prisons. The event brought to light that intelligence agencies were monitoring a live feed of the proceedings and could turn off the feed if they decided that classified information had been disclosed, though Colonel Pohl said it had not been.

Defense lawyers said the event “crystallized” their fears that their confidential communications may be subject to eavesdropping. Saying they cannot ethically represent their clients while they have a basis to fear that is the case, they have effectively ground the proceedings to a halt in order to investigate further.

The chief prosecutor, Brig. Gen. Mark Martins of the Army, told reporters on Sunday, “My staff and I spent a full week diligently running every rumor to ground, and I can say unequivocally that no entity of the United States government is listening to, monitoring or recording communications between the five accused and their counsel at any location.”

But in the courtroom on Monday, one defense lawyer said that her investigations had given her reason to be suspicious. She recounted that last fall she had asked a guard whether what appeared to be a smoke detector in a meeting room was a listening device.

“I said, Mr. Guard, is that a listening device, and he said, ‘Of course not,'” she said. “Well, guess what, Judge, it is a listening device” — one that, she asserted, “has the ability to record.”

Another defense lawyer, James Connell, said he had learned that the raw feed from the courtroom, which is apparently being listened to by the outside monitor, presents the entire “audio field” captured by all microphones in the courtroom, without a filter that prevents whispers and other low-level conversations from being heard in the version broadcast to the public.

Because that same feed goes to the court reporter for making transcripts, defense lawyers want to listen to some recordings to see what was picked up.

General Martins said he had no objection to calling witnesses to settle the issue, but objected to some of the statements by the defense lawyers, saying they were “shoveling” claims into the record that should be presented in testimony that is subject to cross-examination. He also suggested switching the microphones in the courtroom from a system in which they are always on unless a defense lawyer presses “mute” to one in which they are always off until specifically unmuted.

[Gold9472]

9/11 hearings bogged down on attorney-client privilege
Defense attorneys are raising concerns that their conversations with clients may not be confidential.

http://www.miamiherald.com/2013/02/1...#storylink=cpy

By CAROL ROSENBERG
crosenberg@miamiherald.com

GUANTANAMO BAY NAVY BASE, Cuba -- Pre-trial hearings in the Sept. 11 case bogged down again Monday over the question of attorney-client confidentiality as defense lawyers sought to prove someone was eavesdropping on their conversations, and the chief prosecutor said they are not.

“I’ve been practicing law for 25 years,” veteran Chicago defense lawyer Cheryl Bormann lectured the judge, Army Col. James L. Pohl. “And never have I been put in the position where I have to ask the following: ‘Am I being listened in as I talk to my client?’ ”

At issue is an emergency motion filed by defense lawyers who argue that unidentified intelligence agencies have channels to listen in on privileged attorney-client conversations in the case against alleged 9/11 mastermind Khalid Sheik Mohammed and four accused co-conspirators in the murder of nearly 3,000 people in the Sept. 11, 2001 attacks.

The chief prosecutor, Army Brig. Gen. Mark Martins, sought to neutralize the issue by pledging that there’s no eavesdropping.

“My staff and I spent a full week diligently running every rumor to ground,” he said in a statement Sunday night, “and I can say unequivocally that no entity of the United States government is listening to, monitoring or recording communications between the five accused and their counsel at any location.”

Bormann, defending Walid bin Attash, accused of training some the 9/11 hijackers, and Jay Connell, defending Mohammed’s nephew, Ammar al Baluchi, disagreed with the general in court.

In once instance, Bormann said, a guard at the prison lockup assured her and Bin Attash that “a smoke detector in a visiting cell was not a listening device.”

Defense investigation proved otherwise, she said.

“Guess what, judge? It’s a listening device!”

Throughout it all, Mohammed sat in court in a judicially approved hunting jacket of woodlands pattern camouflage following the proceedings and at times flipping through court papers. Relatives of those killed on 9/11, including a youngster, watched the proceedings from behind the court in a soundproof spectators gallery, hearing the audio 40 seconds later.

Mohammed’s death-penalty lawyer, David Nevin, won a one-delay in the hearing during a short 70-minute morning session that saw defense lawyers air grievances about how hard it is to work at Guantánamo because of its remote location and secrecy, and also the quality of the Navy’s cuisine.

Nevin, who’s based in Boise, Idaho, said he had just returned to Guantánamo on Saturday, and had not been given a chance to question the chief of the prison camps guard force, Army Col. John Bogdan, and chief lawyer, Navy Capt. Thomas Welsh, about the eavesdropping capability of the lock-up where attorneys discuss the case with their clients.

Both Bogdan and Welsh will testify Tuesday morning, the judge announced.

James Harrington, the Buffalo-based, Pentagon paid defender of alleged al-Qaida deputy Ramzi bin al Shibh, said he was in the same predicament as Nevin.

The relationship between defense lawyers and the men who were brought to Guantánamo for trial from secret CIA prisons has been a source of repeated delay in the pretrial hearings, which are meant to decide legal issues and resolve discovery disputes before a military jury hears the case.

This latest round was sparked by the discovery two weeks ago that outside agents had a kill switch at their disposal, outside the courtroom, and could mute what the public is allowed to hear.

Pohl appeared angry and unaware of the “external body,” as he called the hidden-hand censor, until someone muted Nevin arguing an unclassified motion for a judicial order to protect what remains of the secret CIA prisons where Mohammed and the others were held overseas — reportedly in Poland, Romania and Afghanistan.

Pentagon officials won’t say who that person was, what agency that censor represented or whether the power to reach into court and cut the audio was on this 45-square-mile Navy base, or back on U.S. soil. The judge generically referred to the censor as the Original Classification Authority, or OCA, shorthand for a senior U.S. official or institution that has the power to declare information Top Secret.

[Gold9472]

Guards seized Guantanamo defendants' legal documents

http://worldnews.nbcnews.com/_news/2...documents?lite

By Jane Sutton, Reuters

GUANTANAMO BAY U.S. NAVAL BASE, Cuba -- While the prisoners accused of plotting the September 11 attacks were in the Guantanamo courtroom this week, guards seized confidential legal documents, books, photos and even toilet paper from their cells, according to a prison camp lawyer.

Most of the seized items will be returned, the camp lawyer testified in a hearing Thursday marked by angry outbursts, eye-rolling and lengthy diversions from the docket in the war crimes court at the Guantanamo Bay U.S. Naval Base in Cuba.

Defense lawyers said some defendants returned to their cells after court sessions earlier in the week to find that bins containing their legal documents had been ransacked and confidential papers relating to their defense were missing.

The seizures happened while the camp's top legal adviser was on the witness stand giving assurances that no one was reading those private legal documents, said Cheryl Bormann, an attorney for defendant Walid Bin Attash.

Bin Attash, a one-legged man with a full beard and shoulder-length curls, stood and shouted to the judge, "In the name of God, there is an important thing for you ..."

The judge, Army Colonel James Pohl, told him several times to sit down, and threatened to have him removed from the courtroom. Bin Attash, who is accused of running an al-Qaida camp in Afghanistan where two of the hijackers trained, sat back down.

Routine safety inspections
James Harrington, an attorney for defendant Ramzi Binalshibh said the document seizure created mistrust and made it nearly impossible to prepare a defense.

Navy Lieutenant Commander George Massucco, a prison camp lawyer, testified that guards were conducting routine safety inspections of the cells and grew concerned, apparently because the security stamps inked on the items were not all identical.

The stamps are applied by inspectors who clear the items for release to the detainees, and had apparently changed over the years. The guards, who rotate in and out of Guantanamo about once a year, apparently didn't know that, Massucco said.

In addition to the legal papers, guards seized a photo of Mecca, a copy of the U.S. government's "9/11 Commission Report" on the hijacked plane attacks, and a book written by a former FBI agent who is expected to testify in the defendants' trial.

They also seized toilet paper on which Binalshibh had written notes in English.

"Based on my review, I've instructed the toilet paper to be returned to your client," Massucco told Binalshibh's lawyer.

Bormann suggested that, "There needs to be some guard force application of common sense and I don't know how the court instills that."

Admiral in shouting match
The judge also seemed frustrated that the guards were applying rules that seemed to change regularly.

One item of contraband will not be returned to Khalid Sheikh Mohammed, the alleged mastermind of the hijacked plane attacks on the World Trade Center and the Pentagon. Guards found a metal pen refill hidden in the binding of a book in his cell, Massucco said.

The defendants could face the death penalty if convicted of charges that include attacking civilians, conspiring with al-Qaida and murdering 2,976 people.

The debate over the document seizures cut short testimony from the Pentagon appointee overseeing the Guantanamo war crimes tribunals, retired Vice Admiral Bruce MacDonald.

As "convening authority," he signed off on the charges and approved the decision to try the case as a death penalty case. Defense lawyers said he acted improperly by making that decision before all members of the defense teams had obtained the security clearances they needed to meet with the defendants and read classified documents.

MacDonald testified by videolink from Washington and got in a shouting match with one of the defense lawyers, Navy Commander Walter Ruiz, over whether various deadlines had been met.

MacDonald is leaving his post in March after three years on the job but was expected to continue his testimony when the hearings resume in April.

Many other issues scheduled to be addressed this week were shunted aside to hear arguments on defense claims that the U.S. government is eavesdropping on confidential attorney-client conversations, a claim that prosecutors emphatically deny.

[Gold9472]

Judge Grants Access to Secret Guantanamo Camp

http://abcnews.go.com/International/...-camp-18557476

SAN JUAN, Puerto Rico February 21, 2013 (AP)

The judge presiding over the Sept. 11 war crimes tribunal is allowing defense lawyers their first chance to see the secret section of the Guantanamo Bay prison where the accused are held.

Army Col. James Pohl granted the defense teams less access to Camp 7 than requested. Lawyers for the five prisoners facing a military tribunal for their roles in the Sept. 11 attacks wanted to spend 48 hours inside the camp. They also wanted multiple visits.

Pohl ruled that three members of each team can visit once, for no more than 12 continuous hours.

He barred them from interviewing guards.

Attorney James Connell called Wednesday's ruling a good start. Camp 7 is so shrouded in secrecy that even its location on the U.S. base in Cuba is classified.

[Gold9472]

9/11 justice: Victims' families attend pretrial hearings

http://www.lohud.com/article/2013022...nclick_check=1

Feb 21, 2013

WHITE PLAINS — Among the many calls Phyllis Rodriguez received on the morning of Sept. 11, 2001, one was from her son, Gregory, who worked for the investment firm Cantor Fitzgerald in the north tower of the World Trade Center.

“He left a message on our answering machine,” Rodriguez said. “He said, ‘There’s been a disaster at the Trade Center. I’m OK. Call Elizabeth.’ ” Elizabeth was Gregory’s wife.

He never came back. A day later, Howard Lutnick, the CEO of Cantor Fitzgerald, told families that employees who were unaccounted for probably did not survive. A total of 658 people from the company died.

In January, Rodriguez boarded a military plane to travel to Guantánamo Bay. She was among five victims’ families selected from a lottery pool to attend the pretrial hearing of Khalid Sheik Mohammad and four others accused of masterminding the 9/11 attack.

Joyce and John Woods of Pearl River also made that journey in memory of their son, James, who was 26 when he died in the terror attacks. He was a trader at Cantor Fitzgerald. He, too, had left a message on their phone saying he loved them.

Rodriguez and the Woods agreed to share their experience of Guantánamo Bay with The Journal News. The hearings were the first time civilians were able to see the men behind the attacks that changed America. Rodriguez also is to give a talk next week in White Plains.

“The whole thing is a very emotional and frightening prospect because you will be observing something that is a piece of the puzzle,” Rodriguez said as she sat at her dining table. “Anything that stirs up the feelings from the 2001 attacks, right away there is a layer of anxiety and fear of being hurt all over again.”

When the families arrived at Guantánamo on Jan. 26, they boarded a ferry that took them to the other side of the bay, where the highly guarded base is. All were given plastic badges that identified them as a Victim Family Member and were taken to comfortable townhouses that would be their homes for five days.

Unlike the verdant, tropical setting they had expected, Guantánamo had a rough and arid landscape, “like the moon,” Joyce Woods said. Rodriguez described it as a “very boring suburban ghetto,” with no downtown, and a smattering of restaurants like McDonalds, a pizzeria and an Irish pub.

The pretrial hearings were held in a courtroom with the five defendants, the judge, and the defense and prosecution teams. The victims’ families and the press sat at the back, which was partitioned off by soundproof double-paned glass. Sound came through through television monitors that broadcast the hearing with a 40-second delay to ensure no classified information was inadvertently revealed.

The families felt anxious about seeing the defendants. Would the faces of the men accused of killing their children reveal some humanity? Would they show remorse?

In the end, all the families saw were the defendants’ backs. The men were already seated facing the judge when the families arrived, and the families typically left the courtroom before the defendants. The Woods said they didn’t feel threatened; Rodriguez said the experience was anticlimactic.

“I didn’t feel any emotions. It surprised me,” Joyce Woods said. “They didn’t look like monsters. They just looked like men sitting on chairs.”

The hearing itself was mundane, with prosecutors and the defense team quibbling over legal minutiae. Pretrial hearings set the ground rules for the trial. Defense attorneys attempt to get the best terms for the defendants while the prosecution tries to stop them.

The slow pace frustrated the families. But Rodriguez had other concerns.

She said she thinks a military trial is inherently unfair because it denies defendants the rights granted under the Constitution.

The military did not want to admit any evidence that the men were tortured at so-called black sites before being brought to Guantánamo, she said, and there were concerns the military was eavesdropping on conversations between the defendants and their attorneys.

An individual who was never identified also cut off the broadcast to the families, much to the annoyance of the judge, she and Joyce Woods said.

“What happens to these five accused to me is less important than our constitutional rights that protect the rights of minorities and the rights of accused,” said Rodgriguez, who is against the death penalty and acknowledged she felt empathy for the defendants.

“If we allow ourselves to lower our standards, then who is next? What happens to our dearly cherished ideals, which we are exporting?” she said.

But, she said, the government had assigned some of its top-notch defenders to the accused to ensure the trial was credible.

The Woods didn’t have a preference for a military or federal court as long as the accused faced American justice. They felt the military was ensuring all procedures were followed and the defense was offered all opportunities, if only to prevent a verdict being overturned on a technicality.

“The eyes of the world are upon them, and they know it,” John Woods said. “This might go down as the biggest trial in modern United States history.”

The Woods support the death penalty for the defendants.

“There is a part of this broken heart that doesn’t want them to be on this earth,” Joyce Woods said. “If anyone is deserving of the death penalty, they are.”

Though Rodriguez and the Woods didn’t know each other before the trip to Guantánamo Bay, they developed a deep friendship. The affection continues despite their difference of opinion over the trial.

“We all have different shades of opinions, but it doesn’t trump our bond,” Rodriguez said.

Joyce Woods agreed.

“We each have suffered a great loss. We are all looking for justice in different ways,” she said.

[Gold9472]

Pentagon prosecutor: Transparency sufficient at 9/11 trial

http://www.miamiherald.com/2013/03/0...nsparency.html

By CAROL ROSENBERG
crosenberg@miamiherald.com

The Pentagon’s war crimes prosecutor has agreed a review panel should hear a transparency challenge of the Sept. 11 trial, but insists that what the CIA did with the accused 9/11 conspirators on their way to Guantánamo are secrets that the public must not hear.

Army Brig. Gen. Mark Martins, the prosecutor, defended the war crimes court security regime — a 40-second delay in what the public can hear and censorship of what the accused can say in public about their time in CIA custody — in filings submitted at the U.S. Court of Military Commission Review on Thursday.

The American Civil Liberties Union and a consortium of news groups took their challenges of the limits of transparency at Camp Justice in Cuba to the Washington, D.C., court after losing arguments before the Sept. 11 trial judge, Army Col. James L. Pohl.

The appeals panel is unlikely to decide the matter before the next time the accused mastermind Khalid Sheik Mohammed and his alleged conspirators comes next to court, for pretrial hearings April 22.

In a 23-page response to the challenge, the prosecution acknowledged that this is one of the rare issues, fashioned as a writ of mandamus, that the five-member war-court review panel can hear before conviction. When Congress tweaked the war court formula in 2009, it mostly gave the panel the authority to consider allegations of errors in legal reasoning after a trial.

At issue is the public’s right to hear a real-time trial, not on a delay long enough to let a court security officer mute secret information said in court. And that, moreover, since the five accused 9/11 conspirators were not voluntary participants in the secret CIA prison and interrogation program, what they know about, saw or experienced during the three to four years the men were in CIA custody before they got to Guantánamo in September 2006.

The prosecutor argues the pro-transparency groups are wrong to claim that the judge could, on his own, conclude that the public’s right to know trumps information classified as Top Secret. The government classified the CIA program, and only the government can declassify it, Martins wrote.

He also argues that, even if information has been leaked and is widely known, the judge is obliged to keep it classified, meaning the public can’t hear in his court what they’ve heard elsewhere — unless it’s been officially declassified..

At one point the prosecution brief appears to offer a defense of the CIA program for “HVDs” — high-value-detainees as the agency calls them — and the results it achieved before President Barack Obama banned the techniques and ordered the so-called “black sites” closed upon taking office.

Once the captives were at Guantánamo, the brief said, the Bush administration released “a limited amount of information relating to the CIA program” — including that “various ‘enhanced interrogation techniques’ ” were approved for use on the men; “the fact that the so-called ‘waterboard’ technique was used on three detainees and the fact that information learned from HVDs in this program helpd to identify and locate al Qaida members and disrupt planned terrorist attacks.”

Lastly, it appears to argue that, since those contesting the security regime don’t know what they don’t know, they don’t have sufficient facts to seek transparency.

The petitioners, Martins writes, “are not in a position to assess the risk to national security inherent in declassifying the remaining categories of information.”

The news groups appealing the order include The Miami Herald and its parent McClatchy Company, ABC, The Associated Press, Bloomberg News, CBS, FOX, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Dow Jones & Co., and The Washington Post.