Key 9/11 Suspect To Be Tried In New York

Media, ACLU to argue against censorship at Guantánamo

http://www.miamiherald.com/2012/08/02/2927497/media-aclu-to-argue-against-censorship.html

By CAROL ROSENBERG
[email protected]

The chief war court judge has agreed to let media and civil liberties lawyers argue for openness at the start of a pre-trial hearing at Guantánamo in the death-penalty case of five alleged conspirators in the Sept. 11 attacks.

A consortium of 14 media groups, including The Miami Herald, and the American Civil Liberties Union separately filed motions protesting protective orders that shield the public from access to secret information in the case.

Judge James Pohl, an Army colonel, agreed to let lawyers argue their case on Aug. 22, the opening day of a week of hearings. He signed the one-page order Wednesday, according to a copy obtained by The Miami Herald. It was posted on the war court website Thursday afternoon.

Defense attorneys for the alleged architect of the 9/11 attacks, Khalid Sheik Mohammed, and his four co-defendants did not oppose oral arguments. Nor did the office of the Pentagon’s chief war crimes prosecutor, Army Brig. Gen. Mark Martins, who has been trumpeting the war court’s transparency.

“Oral argument from the media and ACLU will emphasize the critical public interest in open proceedings at Guantánamo,” said James Connell, attorney for Mohammed’s nephew, Ammar al Baluchi, an alleged logistical co-conspirator, who is also known as Ali Abdul Aziz Ali.

At issue is the war court system that employs a 40-second delay of the proceedings, time enough to let an intelligence official hit a white noise button if any of the men describe what CIA agents did to them after their capture in Pakistan in 2002 and 2003 and before their arrival at Guantánamo in September 2006.

In its motion, filed May 2, the ACLU called the practice censorship and said it was premised on “a chillingly Orwellian claim” that the accused “must be gagged lest he reveal his knowledge of what the government did to him.”

The newspaper groups represented in their separate brief call themselves “the press objectors.” Besides The Herald and its owners, The McClatchy Company, they include ABC Inc., the Associated Press, Bloomberg News, CBS Broadcasting Inc., Fox News Network, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Wall Street Journal and Washington Post.

The media motion calls the government’s protective order “overly broad” in its bid to shield CIA activities from public scrutiny.

“The First Amendment allows commission proceedings to be closed only upon a specific finding of a "substantial probability" of harm to national security or some equally compelling governmental interest,” First Amendment lawyer David Schulz wrote in the press objectors’ motion filed on May 16.

The start of the trial itself is at least a year away.
 
FBI Interrogation Primer Encourages Prisoner Isolation

http://www.aclu.org/blog/human-rights-national-security/fbi-interrogation-primer-encourages-prisoner-isolation

By Devon Chaffee, ACLU Washington Legislative Office at 10:31am

Today, the ACLU released a 2011 FBI “primer” on overseas interrogation that calls into question whether the FBI is adhering to its own policy prohibiting coercive techniques. The 2011 primer was obtained by the ACLU and colleague organizations through Freedom of Information Act litigation. It was written by an FBI Section Chief within the counterterrorism division, and is ironically titled “Cross Cultural, Rapport-Based Interrogation,” – ironic because it encourages FBI agents to request that detainees in foreign or military custody be put in isolation to prolong the detainee’s fear for interrogation purposes. Isolation was a key component to many of the abusive interrogations that took place in Guantanamo, Afghanistan, and in secret CIA black sites after 9/11, in some cases causing extreme psychological trauma. This morning, we wrote to the FBI Director Robert Mueller expressing their concerns with the primer.

The 2011 FBI primer recommends that FBI agents ask the detaining authority to isolate a detainee “several days before you begin interrogation” as well as during the “multi-session, multi-day [interrogation] process.” The primer also repeatedly cites and encourages FBI interrogators to read the 1963 CIA KUBARK manual, a highly controversial document long disavowed and disparaged for its promotion of severe prisoner abuse, including through the use of isolation. Even the KUBARK manual explicitly recognizes the use of isolation in interrogation as a “coercive technique” with profound psychological effects, such as hallucinations and delusions.

The use of isolation as described in the 2011 FBI primer would appear to violate FBI policy. The FBI’s special agents’ handbook explicitly recognizes isolation for interrogation purposes as a form of coercion. During the Bush administration, when FBI agents appeared confused about whether or how isolation could be used for interrogation purposes at Guantanamo, senior FBI officials clarified that it was impermissible and that they should avoid even being consulted on such decisions. Such advice is consistent with U.S. Supreme Court precedent that identifies the use of isolation as an indicator of coercive interrogation and notes the “inevitable disquietude and fears” that isolation engenders.

FBI agents should not be asking foreign governments or other agencies to engage in conduct that FBI agents are prohibited from engaging in. This is especially true when that conduct—like the use of isolation interrogation—raises serious human rights concerns and could lead to violations of international and domestic law.

Recognition of the harmful impact of isolation on the physical and mental wellbeing of prisoners has recently led both the U.S. Senate and the United Nations to more carefully scrutinize the use of solitary confinement. Scientific studies demonstrate that even short-term isolation can have profound negative psychological impact, including severe anxiety, hallucinations and an inability to concentrate.

Today’s letter urges Director Mueller to make clear that FBI policy does not permit the use of isolation in interrogation. The letter also urged the FBI to immediately cease using the primer, investigate how it came to be used, and to provide remedial training for any agents previously provided the primer. The FBI must send an unequivocal message to its agents and its international partners that it is committed to non-coercive interrogations and will not tolerate prisoner abuse.
 
Military limiting Guantanamo detainee access to lawyers

http://security.blogs.cnn.com/2012/08/07/military-limiting-guantanamo-detainee-access-to-lawyers/

By Bill Mears, CNN Supreme Court Producer

The Obama administration has begun limiting the legal rights of terror suspects held at the Guantanamo Bay military prison in Cuba, telling a federal judge Tuesday the government alone should decide when the prisoners deserve regular access to their counsel.

In a 52-page filing, Justice Department lawyers said they have started restricting when Guantanamo prisoners can challenge their detention in a Washington-based federal court. If approved, any relaxing of the rules would be made on a case-by-case basis at the exclusive discretion of military officials, not by the courts.

At issue is whether a Supreme Court decision on detainee rights from 2008 gives federal courts the ultimate power to control so-called "habeas" petitions from foreign combatants in U.S. military custody. Volunteer private lawyers say they deserve regular access to their imprisoned clients, even if there is no active habeas challenge pending in court, or any pending charges.

Under the proposed changes, the Navy base commander at Guantanamo would have sole veto power over attorney access, as well as access to classified material, including information provided directly by the detainees from interrogations.

"The dispute thus before the Court, though important, is quite narrow," said the government in its legal filing. "The only question presented is whether detainees who have neither current nor impending habeas petitions are entitled to" challenge continued access to counsel. "The answer to that question is 'no.'"

The case is before Chief Judge Royce Lamberth. His court has been handling the many appeals filed by the prisoners. There are currently 168 detainees - all male - in the Guantanamo facility, most of whom do not have pending charges. Five Muslim men labeled "high-value detainees" are being prosecuted before a military commission for their alleged leadership roles in the 9/11 terrorist attacks.

In the so-called Boumediene ruling in 2008, the high court said "enemy combatants" held overseas in U.S. military custody have a right to a "meaningful review" of their detention in the civilian legal justice system. It would force the government to present evidence and justify keeping the prisoners indefinitely, without charges. But a federal appeals court in Washington has since refused to order the release of any detainee filing a habeas corpus writ, in some cases rejecting such orders from lower-court judges.

The administration has argued it does not seek to restrict lawyers who have an active legal appeal, but that the rights of detainees shrink once they have filed their first habeas challenge. The military says lawyers must now agree to the new conditions in order to have continued access to their clients and to any classified information the military would deem to release.

And lawyers would be prohibited from using any information they gather that might help the prisoners appearing before a Periodic Review Board. PRBs are newly designed panels of military officials to decide whether a Guantanamo inmate should continue to be held, and whether that person is a national security threat. Those boards were put in place by President Barack Obama by executive order, but have not been fully implemented.

"Executive Order 13,567 does not provide detainees who undergo PRB review with a judicially enforceable right to counsel, or any justification for asking the Court to impose a counsel-access regime on the PRB process other than the one developed, per the Order's direction, by the Secretary of Defense," said the government. "As a general matter, executive orders are viewed as management tools for implementing the President's policies, not as legally binding documents that may be enforced against the Executive Branch."

The government said the court's power to intervene was limited, and urged Judge Lamberth to deny the request guaranteeing attorney access. A court hearing is set for August 17 on the legal question.
 
Amended Schedule for Upcoming Hearing in the 9/11 Case

http://www.lawfareblog.com/2012/08/amended-schedule-for-upcoming-hearing-in-the-911-case/

By Wells Bennett
Monday, August 13, 2012 at 1:35 PM

Last Wednesday, Judge James L. Pohl issued an amended docketing order in United States v. Mohammed et al. That order has now been unsealed, and appears to set a slightly different agenda than the one Judge Pohl had set earlier. The commission’s prior docketing order described 27 different matters, and the order in which Judge Pohl would hear each.

The amended docketing order tinkers a bit, first by altering the sequence in which motions will be considered: defendant Ali Abdul Aziz Ali’s motion to “end presumptive classification,” for example, was once sixth in the list of motions to be addressed. Now, according to Judge Pohl’s amended order, it will come third.

Interestingly, the amended docketing order also removes a key item from the schedule, one that had been included before: Judge Pohl’s instruction to the government, to show cause as to why the five defendants should not be tried separately. In response, the government had pressed for a joint trial, and sought oral argument. The five defendants made no such request, though, most likely because each explicitly declined to take any position as to separate trials. (Of the five, only Aziz Ali opposed severance initially, and he sought oral argument; but he eventually – and inexplicably – changed his mind and, like his co-accused, claimed that he did not have enough information to form a view as to whether the accused should tried separately or together.)

So that leaves us with Judge Pohl’s show cause order; the government’s response and its request for oral argument on the severance issue; and the court’s pointed refusal to hear argument about that, at least for the time being. It is anyone’s guess what this may mean: perhaps Judge Pohl has made up his mind on the severance question; he might also want to mull further, before taking up the matter at another hearing sometime off in the future.
 
US Army lawyer for 9/11 accused: This is not a trial. It is an attempt to legitimise a death threat
The man accused of masterminding the 9/11 attacks has been detained for nine years. Now his lawyer accuses the authorities of torture and says plans for justice are a sham

http://www.belfasttelegraph.co.uk/n...pt-to-legitimise-a-death-threat-16198040.html

By Terri Judd
Wednesday, 15 August 2012

A US Army officer representing one of Guantanamo Bay's most notorious prisoners has spoken out against the secretive nature of the Military Commissions system, insisting it risks becoming little more than a "show game" to execute suspects, denying them and the American people the right to a fair trial.

Captain Jason Wright was appointed by the military to represent Khalid Sheikh Mohammed, who is charged along with four others with conspiring and executing the 9/11 attacks. Yet, the officer revealed to The Independent, rafts of vital evidence – including the three and half years his client spent at secret CIA "black" sites – have been deemed classified.

It was only through a Freedom of Information request that redacted files were released showing that Mohammed had been subjected to waterboarding interrogation 183 times, kept awake for seven days straight and had his family's lives threatened.

Defence lawyers are banned from passing documents in confidence to their clients or even discussing certain issues, funding is severely restricted and requests for additional counsel or experts refused. While the accused face the death penalty if convicted, they are likely to be detained indefinitely even if they are acquitted, a situation Capt Wright likened to torture.

"This is not a trial. It is an attempt to legitimise a death threat," he said. "It can never be fair to bring a man to the brink of death and back 183 times with waterboarding and then do it a final 184th time – but this time it will have full state sanction. The bottom line is, torture denies justice. If you believe fundamentally that America is better than that, then this is a struggle for the soul of America.

"I am concerned there has been this show game to try and find the best system in order to try and execute these men. I am deeply concerned by the prospect that theoretically, if anybody is tried and acquitted, the US government has the authority to continue to detain that person indefinitely."

The officer, who previously spent 15 months as a legal adviser in northern Iraq, continued: "I think a lot of Americans are appalled that Guantanamo Bay is still open. No one denies 9/11 was horrific, but there are many people in the Middle East who have felt aggrieved by the past effects of colonialism and neo-colonialism. There has been a cycle of tragedy and trauma and now we can add torture.

"I think it is time for the hyperbole of the war on terror to end, for all sides to pursue both redemption and rediscovery. It is my hope this case will provide an opportunity for this process. But in order to do so, it must be seen as fair and legitimate, not just to America but to the rest of the world." Despite President Obama's promise to close the notorious detention facility in Cuba, 167 inmates – all Muslims – remain of the original 800 who were brought in after thousands of dollars in bounties were offered to those that turned them in. Of those still incarcerated, about half have been cleared but not released.

Capt Wright said that the reformed Military Commissions Act, brought in after Congress defied the President's attempts to have the trials heard within the American legal system, does not abide by the Geneva Convention, allowing evidence to be gained under duress. He said the situation was "still woefully short of the standards of any normal court in the US".

Along with representatives of the four other detainees, he is due to return to court next week to argue that he must be allowed to communicate documents to his client in confidence. Two years ago, the Joint Task Force Commander at Guantanamo Bay ordered that all papers must be passed through a review team.

"All the defence lawyers have refused to abide by this order. Since December, we have been unable to share any confidential documents with our clients," said the judge advocate. "It violates our duty of client confidentiality and our duty of basic due diligence to represent our clients."

The lawyers are banned from discussing certain subjects – even the term "jihad", which is included in the charge sheet. Court hearings have a 40-second delay, so anything deemed confidential can be silenced before the public gallery hears it.

"It has a chilling effect on our ability to perform a basic aspect of the defence investigation. For instance, anything Mr Mohammed conveys verbally to me, whether it relates to his torture, his treatment or even what may have happened on the eve of his capture in Pakistan, remains classified at the highest level," said Capt Wright. "The US government said that because Mr Mohammed was a high-value detainee, he was exposed to classified CIA information and is therefore a holder of classified information. So effectively: 'Because we tortured you, you can't speak'."

An arraignment hearing in May, normally expected to last no more than an hour, stretched out for 13 hours as each one of the defence lawyers unsuccessfully pleaded for the restrictions to be lifted.

Capt Wright, who insists that he must fulfil his obligation to advocate on behalf of his client, added: "There are severe restrictions on our performing our job competently. It is fundamentally unfair, both for the attorney and the client, to have defence counsel subject to control of the US government."

A Department of Defense spokesman said last night: "Every detainee at Guantanamo has had ample opportunity to get the help of lawyers, and there are plentiful examples of robust and functional attorney-client relationships being formed and of zealous, effective representation being provided."

Pointing out that the accused had a right of appeal to a federal civilian court and ultimately to the Supreme Court, he added: "These reformed military commissions... require all of the protections of fairness and justice that are required by our values. The accused is presumed innocent. The prosecution must prove his guilt beyond a reasonable doubt."

Facing death: The accused
Nine years after he was arrested, Khalid Sheikh Mohammed was charged with orchestrating the 9/11 terror attacks. Last April, along with four others – Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al-Hawsawi – he was accused of eight offences, including murder, hijacking and terrorism.

The five are "responsible for the planning and execution of the attacks of 11 Sept 2001, in New York, Washington DC, and Shanksville, Pennsylvania, resulting in the killing of 2,976 people," a Department of Defense statement said, adding: "If convicted, the five accused could be sentenced to death." KSM, as he has come to be known, was born in Kuwait in around 1964 but went Pakistan as a teenager before moving to the United States to study mechanical engineering and then on to Afghanistan to fight the Soviet invasion. As well as 9/11, he has been accused of involvement in several terrorist plots, including the Bali nightclub bombings and the Richard Reid shoebomb attempt to blow up an airline. His nephew Ali Abdul Aziz Ali, 34, is a computer technician who was hired in the late 1990s to work for the Modern Electronics Corporation in Dubai. Fluent in English, he described himself as "very open-minded and western-oriented". He is accused of assisting the hijackers with "everyday aspects of life in the West" but insists he was simply helping to boost his income and had no idea who they were.

Ramzi Binalshibh, 40, is a Yemeni who worked as a part-time bank clerk until 1995. He was denied a US visa and travelled to Germany to request political asylum, which was rejected, but he returned to Hamburg with a visa. After the attacks he was accused of being a key facilitator. Walid Muhammad Salih Mubarak Bin Attash, 33, is a Yemeni from a prominent family. He read Islamic Studies in Pakistan before losing his right leg in 1997 fighting in Afghanistan in a battle that killed his brother. The Office of the Director of National Intelligence described him as a "scion of a terrorist family".

Mustafa Ahmed Adam al-Hawsawi, 44, is a Saudi accused of being an organiser and financier of the attacks.

Khalid Sheikh Mohammed: The torture details
Waterboarding involves drowning someone to the brink of death before interrogation.

With its history in the Spanish Inquisition, it involves strapping a detainee by their legs and arms to a board which is tipped head down. A cloth is placed over the mouth and nose while water is poured in at varying heights, giving the sensation of drowning. With a doctor present to prevent death, the detainee is subjected to around minute of pain and panic before being raised up and questioned. While information on his three-and-half-year detention in CIA custody is classified, certain redacted documents obtained through Freedom of Information requests confirm Khalid Sheikh Mohammed was waterboarded 183 times, kept awake for seven and a half days and subjected to authorised enhanced interrogation techniques. Human rights experts insist "enhanced" techniques include sleep deprivation, being subjected to extreme temperatures and having a towel placed around his neck before being thrown against a wall. Mr Mohammed was also subjected to unauthorised treatment like threats to the lives of his family.

Guantanamo Bay: Ten years of detentions for 'unlawful enemy combatants'
January 2002 The Bush administration establishes a detainment and interrogation facility at Guantanamo Naval Base, Cuba, and the first 20 detainees arrive.

March 2003 Khalid Sheikh Mohammed is detained in Pakistan and handed over to the US. He is held by the CIA, accused of being the principal architect behind the 9/11 bombings.

September 2006 The Military Commissions Act of 2006 is passed, which allows certain people to be designated "unlawful enemy combatants", thus making them subject to military commissions. President George W Bush confirms for the first time that the CIA has "high-value detainees" in prisons around the world. Fourteen captives, including Mohammed, are transferred to Guantanamo to face military commissions.

January 2009 President Barack Obama signs an order to suspend proceedings at the Guantanamo military commissions for 120 days and announces that the facility will be shut down.

October 2009 A reformed Military Commissions Act is passed. Critics say it still offers sub-standard justice.

January 2011 The Obama administration abandons attempts to close Guantanamo after Congress blocks the President from bringing accused terrorists before US courts.

March 2011 The President approves the resumption of military trials at Guantanamo Bay.

April 2011 Mohammed and four others are charged with conspiracy, murder, hijacking and terrorism. A team of two military lawyers and one civilian lawyer is appointed.

August 2012 Legal representatives of the five suspects set to argue for the right to pass documents in confidence to their clients.
 
Insight: At Guantanamo tribunals, don't mention the "T" word

http://www.reuters.com/article/2012/08/20/us-guantanamo-tribunals-idUSBRE87J03U20120820

By Jane Sutton and Josh Meyer
MIAMI/WASHINGTON | Mon Aug 20, 2012 1:08am EDT

(Reuters) - CIA agents have written books about it. Former President George W. Bush has explained why he thought it was necessary and legal. Yet the al Qaeda suspects who were subjected to so-called harsh interrogation techniques, and the lawyers charged with defending them at the Guantanamo Bay military tribunals, are not allowed to talk about the treatment they consider torture.

Defense attorneys say that and other Kafkaesque legal restrictions on what they can discuss with their clients and raise in the courtroom undermine their ability to mount a proper defense on charges that could lead to the death penalty.

Those restrictions will be the focus of a pretrial hearing that convenes this week.

Prosecutors say every utterance of the alleged al Qaeda murderers, and what their lawyers in turn pass on to the court, must be strictly monitored precisely because of the defendants' intimate personal knowledge of highly classified CIA interrogation methods they endured in the agency's clandestine overseas prisons.

Defense attorneys called that view extreme.

"Everything is presumptively top secret. So if my client had a tuna fish sandwich for lunch, I couldn't tell you that," Cheryl Bormann, who represents defendant Walid bin Attash, said after the May arraignment of the men charged with plotting the 9/11 attacks on the World Trade Center.

At one point in the arraignment, another of bin Attash's attorneys, Air Force Captain Michael Schwartz, was explaining why his client refused to cooperate. Just when things got interesting, a security officer cut the audio feed to the media and others observing the proceedings from behind a soundproof glass wall with a 40-second audio delay.

"The reason for that is the torture that my client was subjected to by the men and women wearing the big-boy pants down at the CIA, it makes it impossible ...," Schwartz said during the blocked portion of the arraignment, according to a partial transcript later declassified.

Prosecutors have said in court filings that any revelations about the defendants' interrogations could cause "exceptionally grave damage."

Civil libertarians argue that if those interrogation methods really are top secret, then the CIA had no business revealing them to al Qaeda suspects.

Defense attorneys will challenge the secrecy rules at the pretrial hearing that begins on Wednesday at the Guantanamo Bay U.S. Naval Base.

Prosecutors have about 75,000 pages of evidence to turn over to defense attorneys in the 9/11 case, but they won't do it until the judge, Army Colonel James Pohl, issues protective orders aimed at safeguarding the material.

BORN CLASSIFIED
Hundreds of men suspected of supporting al Qaeda or the Taliban were rounded up in Afghanistan, Pakistan and elsewhere and shipped to Guantanamo in response to the September 11 attacks. (Of the 779 men who have been held at Guantanamo since the prison operation began in 2002, 168 remain.)

The CIA took custody of the "high-value" captives believed to have top-level information that could help the U.S. and its allies prevent further attacks.

It held them incommunicado for three or four years and transferred them among secret overseas prisons, questioning them with interrogation methods that defense attorneys say amounted to torture and which the Obama administration has since banned.

Some details of the program, including waterboarding, mock executions and sleep deprivation, have already been disclosed by Bush and the CIA itself. Jose Rodriguez, a former CIA official, recently defended them in news interviews to promote his book, "Hard Measures: How Aggressive CIA Action After 9/11 Saved American Lives."

Yet in both the 9/11 case and that of Abd al Rahim al Nashiri, who is accused of sending suicide bombers to ram a boat full of explosives into the side of the USS Cole off Yemen in 2000, the government presumes that every word spoken by the defendants, in the past and in the future, is classified at the highest level -- "Top Secret," with a "Sensitive Compartmented Information," which is routinely shortened to TS/SCI.

The defendants' words are also "born classified," a status their lawyers said has previously been used only to safeguard details about nuclear weapons. So are all documents and legal motions related to their cases, which cannot be made public unless they're cleared by a Department of Defense Security Classification Review team.

How that team works is a secret.

"I've never seen them. I've never communicated (with them). No one has ever been able to tell me that," said James Connell, a lawyer for 9/11 defendant Ali Abdul Aziz Ali.

The Pentagon would say only that the review team includes both civilians and uniformed military personnel and that it can take up to 15 business days to make its decisions.

Proscribed topics include details of the defendants' capture, where they were held and under what conditions, the names and descriptions of anyone who transferred, detained or interrogated them and the methods used to get information from them, according to the court documents.

Defense lawyers say the classification system used at Guantanamo violates President Barack Obama's 2009 order that prohibits using secrecy labels to conceal lawbreaking or prevent political embarrassment. They say it also "eviscerates" the legal defense protections Congress set down in the law that authorizes the Guantanamo tribunals.

The government's secrecy rules mean that every lawyer, paralegal and expert on the prosecution and defense teams must undergo an extensive background check and obtain a TS/SCI clearance. Once they get clearance, they are briefed on what has to stay secret. The document that forms the basis of the presumptive classification is itself secret.

"It is ridiculous," said Army Captain Jason Wright, one of the lawyers for accused 9/11 mastermind Khalid Sheikh Mohammed. "The briefing is classified, so I can't discuss what I can and cannot discuss."

Mohammed's lawyers have asked the UN special rapporteur for torture, Juan E. Mendez, to investigate claims that their client was tortured. But they could only share with Mendez the information that has been publicly declassified.

"We are prohibited from sharing any details of his mistreatment, even to the special rapporteur," Wright said.

FORCED TO LEARN
The American Civil Liberties Union has filed a challenge arguing that the government has no legal authority to classify information that it not only disclosed to the defendants but forced them to learn.

"The question here is: Can the government subject people to torture and abuse and then prevent them from talking about it?" said Hina Shamsi, director of the ACLU's National Security Project.

The ACLU said the claim of broad authority to gag defendants infringes on the American public's right to open trials and goes far beyond what the courts have allowed, namely that censorship must be narrowly tailored and aimed at protecting a compelling government interest.

"We don't think the government has any interest in classifying personal observations about conduct banned by the president of the United States," Shamsi said.

"The commission certainly will not be seen as legitimate if the proceedings revolve around judicially approved censorship of the defendants' accounts of government misconduct."

Prosecutors acknowledged the public has a right to witness the proceedings, but urged the judge not to substitute the ACLU's judgment on what should be classified for that of intelligence professionals.

ATTORNEY-CLIENT CONVERSATIONS
Security rules restrict not only what can be made public but also what the lawyers can talk about with their clients.

In December 2011 the officer then in charge of the Guantanamo detention operation, Rear Admiral David Woods, issued orders forbidding defense lawyers from discussing certain topics during client visits. Those included "historical perspectives on jihadist activities." That apparently means the lawyers cannot discuss part of the actual charges with their clients because the charges specifically mention Osama bin Laden's 1996 "Declaration of Jihad Against the Americans."

The defendants are alleged to be al Qaeda terrorists, but the order prohibits their lawyers from talking to them about "groups engaged in terrorist activities."

"It's sort of an illusory idea, which is that we are going to give you a lawyer but you're not going to be able to talk about the central thing that is important for you to talk about with a lawyer," said David Nevin, another of Mohammed's attorneys.

The chief prosecutor, Brigadier General Mark Martins, disputed the defense attorney's interpretation of Woods' order and said defense attorneys' conversations with their clients are not restricted.

"They can talk to their clients about anything. What they can't do is take a document that may have classified information related to sources and methods and - unless it is cleared as disclosable to the client - they can't show them that document."

Generally under U.S. law, communications between defendants and their lawyers are confidential and cannot be used as evidence. Here again, the rules are different at Guantanamo.

The military and civilian defense lawyers, who mostly live in the Washington area, are not allowed to telephone their clients at Guantanamo and can communicate with them only during visits or in writing.

The 9/11 defense lawyers have refused to send legal mail to their clients until prison camp inspectors agree to stop reading it.

The review teams are made up of Pentagon lawyers, translators and former intelligence officers - people from the same agencies that detained and interrogated the defendants and are now prosecuting them.

The lawyers contend that submitting case-related documents for screening would force them to illegally disclose trial strategy, violating the defendant's right to a fair trial. They said it was also an ethical violation that could put their law licenses in jeopardy.

As it turns out, not every word from the 9/11 defendants is treated as confidential for long. In 2009 the defendants sent a note to the judge proclaiming themselves "terrorists to the bone" and calling the charges against them "badges of honor, which we carry with pride."

The note was rapidly cleared for public release and posted on a Pentagon website. It immediately made headlines, leaving defense attorneys fuming that potential evidence from their clients had been released to the public before they knew of its existence.
 
9/11 hearings to resume at Guantanamo Bay

http://tribune.com.pk/story/424610/911-hearings-to-resume-at-guantanamo-bay/

By AFP
Published: August 21, 2012

The preliminary hearing is expected to run until August 28. PHOTO: AFP

CUBA: Five men accused over the September 11 attacks will appear Wednesday at a US military court in Guantanamo Bay, where defense lawyers aim to address the prisoners’ torture.

The preliminary hearing, originally postponed for the Muslim holy month of Ramazan, is expected to run until August 28, and will prepare a trial that is not expected to take place for at least a year.

In written motions filed with the military commission on the 9/11 trials, defense lawyers aim to denounce abuses against the accused.

The details of the abuses have been classified by the US government as “top secret,” prohibiting the defendants or their lawyers to discuss the specifics of their torture at trial.

Before being transferred to Guantanamo Bay, Cuba in 2006, the five men were held in secret CIA prisons, where they were subjected to interrogation tactics that amounted to torture and were banned by President Barack Obama in 2009.

The self-proclaimed mastermind behind the September 11 attacks, Khaled Sheikh Mohammed – commonly referred to by his initials “KSM” – was waterboarded 183 times and underwent seven and a half consecutive days of sleep deprivation, according to an intelligence report.

Defense lawyers argue they are unable to address torture due to “presumptive classification” that “attempts to extend traditional classification rules beyond information damaging to national security to all statements made by or information learned from Guantanamo Bay prisoners.”

The lawyers wrote this kind of classification is “the most egregious example of the government’s use of overclassification to suppress unclassified but embarrassing information at Guantanamo Bay.”

To ensure that no sensitive information leaks from the proceedings, the military court proceedings at Guantanamo are broadcast with a delay of 40 seconds and are censored where deemed necessary.

The prosecution argues that the censorship is necessary, because the defendants have been “exposed to classified sources, methods and activities” during their detention by the CIA.

Any leak of information learned from intelligence “could reasonably be expected to damage national security,” read the prosecution’s motion.

The American Civil Liberties Union (ACLU), along with 14 US media outlets including ABC and The New York Times, backed the defense’s request for greater transparency in the hearings.

Along with Mohammed, a Pakistani of Kuwaiti origin, his nephew Ali Abd al-Aziz Ali, Yemeni national Ramzi Binalshibh and Saudis Walid bin Attash and Mustafa Ahmed al-Hawsawi face the death penalty if found guilty.

The men were formally indicted on May 5, when they interrupted proceedings with prayers.
 
U.S. train crash delays Guantanamo hearings in 9/11 case

http://www.reuters.com/article/2012/08/21/usa-guantanamo-idUSL2E8JLFVG20120821

Tue Aug 21, 2012 6:11pm EDT
By Jane Sutton

GUANTANAMO BAY US NAVAL BASE, Cuba, Aug. 21 (Reuters) - A train wreck in the United States disrupted Internet connections to the Guantanamo Bay U.S. Naval base on Tuesday and caused a one-day delay in pretrial hearings for five prisoners accused of launching the Sept. 11 attacks.

Hearings had been scheduled to begin on Wednesday for the alleged mastermind of the hijacked plane attacks, Khalid Sheikh Mohammed, and four others facing death penalty charges of mass murder, terrorism and conspiring with al Qaeda.

The train derailment in the Baltimore, Maryland, area that killed two young women knocked out fiber optic lines that are part of the wire-and-satellite network providing communications to the remote U.S. Naval base in eastern Cuba, said Captain Robert Durand, a spokesman for the Guantanamo detention operation.

That left defense lawyers and prosecutors at the base temporarily unable to access email and electronic legal files. Defense lawyers said the network breakdown had drastically interrupted preparations for the hearings, and filed an emergency request for a delay.

The judge, Army Colonel James Pohl, postponed the start of the hearings until Thursday. The session was scheduled to last six days to address secrecy rules governing the trials, among other issues.

The United States maintains an economic embargo on Cuba that is intended to put pressure on the island's communist government and there are no communications links between the U.S. base and the rest of Cuba.

Satellites relay phone and Internet signals to and from the base, linking it with communications networks in Maryland and Maine. The Maryland link was expected to be fully restored by Tuesday evening, Durand said.

The hearings could face additional disruption from Tropical Storm Isaac, which formed in the Atlantic Ocean east of the Lesser Antilles. It was forecast to strengthen as it moved into the Caribbean Sea by Thursday, and could threaten Guantanamo as a hurricane on Saturday, the U.S. National Hurricane Center said.
 
9/11 hearing canceled as Guantánamo prepares for Isaac

http://www.miamiherald.com/2012/08/22/2963137/911-hearing-canceled-guantanamo.html

By CAROL ROSENBERG
[email protected]

GUANTANAMO NAVY BASE, Cuba -- Sirens blared just after 11 a.m. Wednesday, alerting the 6,000 or so people across this corner of southeast Cuba to get ready for Tropical Storm Isaac. The chief war court judge canceled this month’s hearings in the Sept. 11 terror trial, and the Pentagon prepared to airlift lawyers and reporters off the base within 24 hours.

At the prison camps, commanders contemplated pulling down netting affixed to chain-link fences so they don’t turn into sails and moving all 168 captives into hurricane-proof shelters.

“Attention! Condition of Readiness 4. Destructive winds forecasted within 72 hours,” advised a recorded announcement through base loudspeakers. “Monitor radio and TV for updates.”

In a drill all too familiar to South Floridians, Condition Readiness 4, or CORE 4, meant that base residents were instructed to clear their yards of lawn furniture and other loose objects that “may become projectiles during high winds,” said base spokeswoman Kelly Wirfel. It also meant that commanders watching National Hurricane Center reports anticipated “destructive winds” greater than 50 knots within 72 hours.

At the prison camps, Navy Capt. Robert Durand assured that all the detainees and guards at the seafront prison camps would be secured.

Most captives, about 85 percent, are routinely held in “brick and mortar structures capable of withstanding hurricane-force winds.”

Others held in less-sturdy cells at the sprawling prison camps compound “will be sheltered” in “secure locations capable of withstanding hurricane-force winds.” He would not provide details, citing security concerns.

The “sniper netting” that covers chain-link fences obscures the views the detainees have of their surroundings — and prevents them from seeing troop movements in and around the camps. But in strong winds, sniper netting “turns it into a big sail,” said Durand, suggesting it could uproot fences inside the Detention Center Zone. “We also have a plan to shelter and feed our troops, civilian employees, contractors and family members in hurricane-safe locations.”

At the court, Army Col. James Pohl, the chief military judge, canceled this week’s session of pretrial hearings in the Sept. 11 terror case. It was meant to focus on secrecy and transparency. His order said he was canceling “based on impending weather conditions … and a concern for the safety and welfare of personnel.”

The hearings were rescheduled for Oct. 15-19.

Issues of concern likely included the infrastructure of Camp Justice as well as road conditions between the prison camps and the court, which have been known to flood in heavy rain.

At the court, the $12 million Expeditionary Legal Compound is a bunker-like building with an adjacent trailer park where the Pentagon puts up some defense lawyers and case prosecutors. Nearby, reporters and some legal staff are housed in a crude tent city that through the years has been whipped by fierce summer storms but never a hurricane.

Earlier, the Pentagon’s chief war crimes prosecutor was asked whether it wouldn’t be easier to hold the terror trial in Manhattan. “This is where our Congress and our government says we’re going to do this,” Army Brig Gen. Mark Martins replied.
 
9/11 trial may wait until 2016

http://www.smh.com.au/world/911-trial-may-wait-until-2016-20120823-24oz0.html

TROPICAL storm Isaac has forced a US military judge to cancel six days of hearings scheduled to begin yesterday in the case against Khalid Sheikh Mohammed and four other men accused over the September 11 attacks, as it emerged that the trial will not be televised and may not begin until 2016 - 15 years after the attacks that killed 2976 people.

Military prosecutor Brigadier-General Mark Martins said that the trial would not be broadcast, as per the current laws surrounding military commissions.

James Connell, one of the defence lawyers, said: ''The defence position is that there should be a television feed of this so that members of the public, whether they are victims' families or people who are interested in these proceedings in the US or worldwide, can watch.''

The prosecution estimated that the trial was on schedule to begin in June or July next year, but Mr Connell suggested four years from now as a realistic timescale. His prediction was based on the ''enormous'' amount of paperwork the defence still had to read.
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He added: ''The prosecution has been preparing for this case for 11 years. It makes sense that now they have got round to bringing this case that there needs to be time for all of the information they have spent 11 years digesting - that the defence needs time to digest that."
 
Guantánamo's perversion of justice
US military commissions revoke for al-Qaida suspects the standard of justice extended to Nazi war criminals at Nuremberg

http://www.guardian.co.uk/commentisfree/2012/sep/03/guantanamo-perversion-justice

Richard Dicker
guardian.co.uk, Monday 3 September 2012 09.26 EDT

In the course of three days in late August, I travelled from Courtroom 600 in Nuremberg, Germany, where an international military tribunal tried 21 top Nazi leaders in 1945-46, to Courtroom 2 at Guantánamo Bay, Cuba. Courtroom 2 is the site of proceedings against Khalid Sheik Mohammed and the four others accused of masterminding the attacks on 11 September 2001. The contrast could not be more stark.

At Nuremberg, the US government insisted on a trial – in the face of strenuous opposition from the British and Russians, who wanted to summarily execute the most senior Nazi party members. Washington demonstrated a commitment – not without shortcomings in the course of the trials – to the uncharted path of international prosecution for monstrous crimes. In Guantánamo's Camp Justice, on the other hand, the US government is restricting the exercise of basic fair trial rights guaranteed by international and US domestic law.

While denigrated by some critics simply as "victor's justice", the Nuremberg trial marked a stunning turning-point in using law to punish the most egregious crimes. It also laid the foundation for the still-evolving system of international justice, in which those responsible for mass atrocities are increasingly being held to account under law. Unlike Nuremberg, because of its expected unfairness, the 9/11 trial is unlikely to serve history as a positive reference point.

In Courtroom 600 at Nuremberg, which I visited while attending a conference about an international justice institute at the site, I saw the wooden benches that Herman Goering and others occupied in the dock. These men, once seemingly omnipotent, believed they could exterminate millions without consequence. Their passage from power to prosecution signaled an unprecedented shift in international practice to bring to justice even the most powerful. I saw where Goering disputed the evidence against him, sparring with Robert Jackson, the US supreme court justice who served as America's chief prosecutor in Nuremberg. Such exchanges are fundamental to a fair trial in an adversarial proceeding. At Nuremberg, three of the accused were acquitted.

The Nuremberg tribunal staff made herculean efforts to make the trial visible worldwide, using newsreel footage, to underscore the importance of a public trial. Unknown, in its day, this initiative drove home the importance of projecting the trial sessions far beyond the courtroom.

At Guantánamo, however, the rules curtail essential rights of the defense to rebut incriminating evidence. The military commissions there allow hearsay evidence, which international tribunals permit as well. But at Guantánamo, the circumstances around which much of the evidence was obtained are considered a national security matter and even the defense lawyers, with top secret security clearance, are denied access. The prosecutor may introduce evidence the defendant has no way to challenge.

Moreover, at Guantánamo, everything the so-called "high-value detainees" say is presumed classified. So, if the 9/11 defendants speak up about torture in custody, or their lawyers try to, the audio feed from the courtroom is immediately cut off and the information will never appear in the public record. These rules effectively pre-empt the confrontation at the core of due process in an adversarial trial.

Further, an important legacy of Nuremberg was the permanent documentation of Nazi crimes; suppressing evidence in Guantánamo will prevent creation of a definitive historical record.

In addition, in Courtroom 2 the prosecutor has a power unknown in US federal court or any international tribunal: the prosecutor can unilaterally veto a defense attorney's decision to call a witness. A defense lawyer who wishes to summon a witness must first get the prosecutor's consent. If the prosecutor says no, the lawyer must argue its merits with the prosecutor in front of the judge. This unfair allocation of power between prosecution and defense directly violates an essential fair trial principle, known as "equality of arms", and locks in a prosecutorial advantage that undercuts a vigorous and effective defense.

A fair trial of the 9/11 accused at Guantánamo would renew Nuremberg's powerful example of justice being done and being seen to be done. Instead, the Obama administration, despite improvements in the 2009 Military Commissions Act, is departing from the farsighted example of Presidents Roosevelt and Truman.

Worldwide, there is a growing awareness of the efforts that have succeeded in bringing some of those accused of the world's worst crimes to justice: Radovan Karadzic, the Bosnian wartime leader; the former Liberian President Charles Taylor; and the former Peruvian President Alberto Fujimori. The Guantánamo trial will be compared with these proceedings. While policymakers in Washington have advocated fair trials for those implicated in ethnic cleansing and the use of rape as a weapon of war, gutting due process guarantees at Camp Justice will undercut US credibility in pressing for justice elsewhere.

A flawed trial at Guantánamo will debase the United States' better practices and devalue US government commitments to accountability for serious crimes from Syria to Sri Lanka. Nuremberg created a powerful positive precedent; Guantánamo has the potential to mar that achievement with the stain of hypocrisy.
 
U.S. judge blocks new restrictions on Guantanamo lawyers

http://www.reuters.com/article/2012/09/06/us-usa-guantanamo-idUSBRE8851E720120906

By Jane Sutton
MIAMI | Thu Sep 6, 2012 7:23pm EDT

(Reuters) - The Obama administration overstepped its authority by trying to impose new restrictions on attorney access to prisoners held at the Guantanamo Bay Naval Base, a federal judge ruled on Thursday.

Ruling in Washington, Chief Judge Royce Lamberth said the previous rules established by the U.S. District Court in Washington four years ago were working well and would continue to govern lawyers' access to Guantanamo prisoners.

The government had argued the new rules did not make substantial changes. In a scathing opinion, Lamberth called one of the government's arguments "quite preposterous" and said another "does not pass the smell test."

"The government's attempt to supersede the court's authority is an illegitimate exercise of executive power," he wrote in the ruling.

The Justice Department did not immediately respond to a request for comment.

The federal court in Washington handles legal challenges from Guantanamo prisoners who are seeking their freedom by challenging the government's evidence for holding them. That court negotiated the rules governing lawyers' access to their Guantanamo clients.

A few months ago, the Justice Department sought to put new restrictions on attorney visits to prisoners whose cases had been denied or dismissed.

It asked them to sign a "memorandum of understanding" that the court said essentially gave the commander of the detention operation unfettered authority and discretion over attorney visits.

The new rules would have restricted the number of lawyers and interpreters who could visit any given prisoner and put new restrictions on what the lawyers could do with classified information learned from prisoners, including documents the lawyers themselves had written.

Some of the lawyers refused to sign the memorandum of understanding and challenged the issue in court.

Lamberth said few of the prisoners were fluent in English or knowledgeable about U.S. law, and that they were held in an isolated location without the means to file legal challenges on their own. He said those who had lost their cases still had the right to file appeals or new challenges under laws that had been revised.

"In the case of Guantanamo detainees, access to the courts means nothing without access to counsel," Lamberth wrote.

The Center for Constitutional Rights, which has challenged the Guantanamo detention operation, praised the decision.

"The new rules came out of the blue and can only be seen as an effort to punish the men at Guantanamo for exercising their right to challenge their detention," the group's executive director, Vincent Warren, said in a statement.

The detention camp was established at the Guantanamo base in Cuba shortly after the September 11 attacks to hold foreign captives suspected of involvement with al Qaeda, the Taliban or other militant groups. Of the 779 men held there, 168 remain.
 
Prison camps not a campaign issue this time
The once hot-button topic of Guantánamo that President Barack Obama pressed in his first presidential race is a non-issue this time around.

http://www.miamiherald.com/2012/09/23/3017677/prison-camps-not-a-campaign-issue.html

By CAROL ROSENBERG
[email protected]

In 2007, Mitt Romney set himself apart from the pack of presidential candidates by staking out an extreme position on the prison camps at Guantánamo Bay, Cuba. He said he wanted to “grow them” at a time when both Barack Obama and John McCain were advocating closure to improve America’s standing in the world.

This time around, it’s not even part of the presidential campaign conversation.

When asked, spokesmen for the candidates couldn’t muster anything more than canned talking points — Romney will keep them, Obama still wants to close them. And there’s no evidence that either man has raised the issue along the campaign trail where the economy is the chief concern but national security is never far behind.

The most prominent mention so far came in Clint Eastwood’s conversation with an empty chair at the Republican National Convention in Tampa. “Why close it? We spent so much money on it.”

Congress’ straight-jacketing legislation may explain it. Once Obama sought to make good on his 2008 campaign pledge by ordering his administration to close the camps by Jan. 22, 2009, Congress replied with a succession of financial and bureaucratic restrictions on the prison and the prisoners that today make a policy debate on the topic largely theoretical.

“It’s been neutralized as an issue for both sides. Whether they like it or not, the reality is there will be detainees detained at Guantánamo Bay for as long as you can see into the future,” said Steve Schmidt, senior campaign advisor in 2008 to McCain.

Congressional restrictions also forced the Obama administration to retreat on Attorney General Eric Holder’s vow to hold a civilian Sept. 11 terror trial in Manhattan, not far from 9/11’s Ground Zero. The capital case is instead being prosecuted before a military commission at the Navy base in southeast Cuba.

Guantánamo is “not on the mind of out-of-work Ohio auto workers who may determine the outcome of this election,” Schmidt said. “Scoring points on Guantánamo Bay denies you the opportunity to score points on the economy. If Mitt Romney can’t make an economic case he won’t win the election.”

For the record, White House national security spokesman Tommy Vietor said there’s no change in the presidential policy that seeks to close the camps that cost $800,000 a year per prisoner: “The president has made clear that the policy of this administration is to do what is clearly in our national security interest — to close the detention facility at Guantánamo.”

Getting there is more complicated. The Democrats’ 2008 platform bluntly pledged closure. The Guantánamo passage in the 2012 platform is more nuanced: “We are substantially reducing the population at Guantánamo Bay without adding to it,” it says. “And we remain committed to working with all branches of government to close the prison altogether because it is inconsistent with our national security interests and our values.”

Neither the 2008 nor 2012 Republican platforms make mention of Guantánamo, meaning Romney’s most detailed vision comes from a May 2007 Fox News debate among McCain, Romney and Rudolph Giuliani at the University of South Carolina.

“I don’t want them on our soil,” Romney said then. “I want them on Guantánamo, where they don’t get the access to lawyers they get when they’re on our soil. I don’t want them in our prisons. I want them there. Some people have said we ought to close Guantánamo. My view is we ought to double Guantánamo.”

The Romney campaign won’t elaborate on what the Massachusetts governor wanted to double that day, when the Pentagon held more than 380 captives.

But since then, the Pentagon has downsized the detention center population by half.

The Bush administration transferred more than 100, the majority to Afghanistan and Saudi Arabia. Then the Obama administration transferred and resettled another 100, many across Europe and to such far-flung places as Palau, Cape Verde and Bermuda. Five captives died.

Today’s Guantánamo prisoner population is 167.
 
Pentagon prosecutors moving away from gag order on 9/11 suspects at Guantanamo

http://www.thestate.com/2012/09/26/2457434/pentagon-prosecutors-moving-away.html#.UGL26hgoo0w

Carol Rosenberg - The Miami Herald
9/26/2012

Defense lawyers in the Sept. 11 case said Tuesday that the Pentagon prosecutor is backing away from a national security doctrine that reflexively gags anything the accused 9/11 plotters say to anyone at Guantánamo.

At issue is the controversial theory of “presumptive classification.” Because the accused 9/11 conspirators were held for years in secret custody by the CIA, and are now confined to a secret prison at Guantánamo, anything they say starts off classified as a national security secret.

They are facing a death-penalty trial at the Guantánamo war court, and their defense lawyers have argued that the interpretation has straight-jacketed their trial preparation.

Moreover, the American Civil Liberties Union disputes the concept of “presumptive classification” as being at odds with the public’s right to know what happened to the captives in secret U.S. custody. Agents seized the men in 2002 and 2003, and then turned them over to the military at Guantánamo in 2006.

“Today, the prosecution in the 9/11 military commission filed a document retreating from its argument for ‘presumptive classification’ of all detainee statements, regardless of their topic,” said James Connell, lawyer for Ammar al Baluchi, the nephew of alleged mastermind Khalid Sheik Mohammed. “Defense attorneys have vigorously opposed the practice of presumptive classification.”

A military judge is set to consider the legality of the doctrine during hearings at Guantánamo Oct. 15-19.

The chief prosecutor declined to say whether or how he had retreated from the doctrine in the filing. Under war court rules, it was filed under seal — lawyers get to read it, the public cannot — until U.S. intelligence authorities decide which portions to redact.

“The government is committed to considering every reasonable and appropriate measure that could help facilitate the attorney-client relationship,” the prosecutor, Army Brig. Gen. Mark Martins, said in statement.

Martins’ remarks suggest that defense lawyers will now be able to discuss certain off-limit topics with the accused terrorists. Left unclear was whether the lawyers will now be allowed to talk publicly about their conversations with their clients.

Attorney Cheryl Bohrmann, defending alleged al Qaida lieutenant Walid bin Attash, explained the rules this way in May: “Everything is presumptively Top Secret. So if my client had a tuna fish sandwich for lunch, I couldn’t tell you that.”
 
9/11 mastermind loses appeal to delay Monday hearing

http://www.google.com/hostednews/af...docId=CNG.0f2713668f2bbbb0b8aa5e938d9485bc.e1

(AFP) – 2 hours ago

WASHINGTON — The self-proclaimed mastermind of the September 11 terror attacks has lost an appeal citing rats and mold as a reason to delay his court appearance on Monday, a defense lawyer said.

Judge James Pohl's decision was still sealed Thursday, three days before the hearing in question, but lawyer James Connell said he had received word by mid-afternoon.

Khalid Sheikh Mohammed's "emergency motion to delay October hearings -- due to defense offices deemed unsafe due to the presence of hazardous mold, rodents and rodent feces -- was denied," announced Connell, defense lawyer for one of the five men accused of plotting the September 11, 2001 attacks.

The new series of preliminary hearings for the five men is scheduled to begin Monday at the US naval base in Guantanamo Bay, Cuba.

The hearings had already been postponed so that the defendants could observe the holy month of Ramadan and were then pushed back a day when a derailed freight train in the US state of Maryland caused an Internet outage at the base. They were delayed once more due to Tropical Storm Isaac.

This time, it was Mohammed's lawyers who had asked for the delay, saying the offices they were provided were "not habitable due to extensive, ongoing and serious health hazards presented by exposure to hazardous mold, airborne particulates, rodents, rodent feces and other significant matters."

According to their request, filed in early October, the decaying body of a dead rat was removed from the ceiling on September 25, and, the month before, several large rats were removed, causing rat feces to drop into the workspace.

The defense team said the uneasy work conditions left them unable to adequately prepare for the hearing.

Soon after their motion was filed, Pohl said he was astonished these offices had been designated for the lawyers when a team of air quality and mold inspectors had recommended they not be used.

He ordered the offices to be repaired or another "decent workspace" be provided.

As a result, the vents and the offices were cleaned, disinfected and re-inspected by a Guantanamo hospital team, which re-authorized them to be used, a base spokesman said.

Mohammed is awaiting trial along with his Pakistani nephew Ali Abd al-Aziz Ali, also known as Ammar al-Baluchi, Mustapha Ahmed al-Hawsawi of Saudi Arabia and Yemenis Ramzi Binalshibh and Walid bin Attash.

The five men face the death penalty if convicted for their roles in the 2001 attacks by Al-Qaeda militants in which hijacked planes were used to strike New York, Washington and Shanksville, Pennsylvania, killing 2,976 people.
 
Continuance Denied in the 9/11 Case; Hearing Still On

http://www.lawfareblog.com/2012/10/continuance-denied-in-the-911-case-hearing-still-on/

By Wells Bennett
Thursday, October 11, 2012 at 5:33 PM

Remember the defense’s request, in U.S. v. Mohammed et al, to postpone next week’s motions hearing on account of an infestation of rodents, rodent poop, and mold in the defense’s offices? Well, earlier today Judge James L. Pohl denied it, citing “professional assessments” conducted by the Commanding Officer of GTMO’s naval hospital. (In its papers, the government had noted a then-upcoming “remediation project,” which, upon completion on October 9, would rid the offending stuff from the defense attorneys’ offices.)

No real surprise there. The working conditions aside, it was already hard enough to imagine a further postponement of case, given that there’s been no hearing since May’s arraignment, and the upcoming session has already seen a string of delays.

Which reminds me: Lawfare naturally will be covering next week’s Guantanamo proceedings, via closed-circuit television at Fort Meade. Be sure to tune in, y’all.
 
2 terror trials separated by more than a subway ride
From logistics to the law, the latest New York City terror proceedings offer a stark contrast to the challenges of mounting the Sept. 11 trial at Guantánamo.

http://www.miamiherald.com/2012/10/12/3047200/2-terror-trials-separated-by-more.html

By CAROL ROSENBERG
[email protected]

Within hours of being handed over to U.S. custody last week, a radical Islamic preacher from London named Abu Hamza al Masri was brought before a federal court in New York City. He got a seasoned criminal defense attorney, open hearings and is now in a federal lockup awaiting an August terror trial. It took days, not years.

Next week, the accused 9/11 mastermind Khalid Sheik Mohammed and four alleged accomplices get their second military commissions hearings of the Obama administration at the U.S. Navy base at Guantánamo. All five have been in U.S. custody for nine or more years.

The contrasts don’t end there.

One’s a military court. Another’s civilian. If the Sept. 11 prosecution ends in conviction and the military jury decides they deserve the death penalty, the secretary of defense will choose the method of execution. Masri and four other men who were extradited to U.S. custody from Britain can get at most life in prison, and release if they are acquitted.

From logistics to the law, the cases of Masri and Mohammed illustrate how encumbered the Guantánamo war court system has become.

Contrasting costs
• Subway vs. charter commercial airliner

The federal courthouse is a $2.25 subway ride away from the rest of New York City. Guantánamo lawyers, and everyone else from judge to victim family members, get to the Guantánamo proceedings on $90,000 charter jetliners. For the Oct. 15-19 proceedings, postponed from August by Tropical Storm Isaac, the Pentagon chartered two.

• Permanent offices vs. makeshift work space

Masri’s court-appointed defense lawyer, Jeremy Schneider, walked to his client’s arraignment from his downtown New York office, five blocks from the court. Guantánamo lawyers split their time between Washington Beltway offices and crude, cramped work space at Camp Justice, some of it recently declared a health hazard of toxic mold and rat droppings.

• Federal lockup vs. designer detention

Masri is held for trial next to the courthouse, in a 10-story federal lockup with solitary confinement for “high-risk” prisoners where lawyers can simply show up to see a client seven days a week. It costs $33,989 a year to keep an inmate in federal detention, according to the U.S. Bureau of Prisons. The Obama administration says it costs $800,000 a year to keep a prisoner at Guantánamo. To see a client, a defense lawyer needs to get a slot on the prison camp’s military roster and a ride on the $90,000 charter plane.

Different crimes
To be sure, the Sept. 11 attacks were a crime unparalleled in American history. Nearly 3,000 people were killed in the four hijackings, al-Qaida’s first attack on U.S. soil.

Masri, who was jailed in Britain since 2004 and convicted of incitement, is accused in U.S. federal court of abetting kidnappings of Americans in Yemen and conspiring to set up a terrorist training camp in Oregon, crimes that date back to the 1990s.

Each case took a roundabout route to U.S. justice. The same year Masri was convicted in a British court, the CIA moved Mohammed and his alleged co-conspirators to Guantánamo from years in secret agency detention specifically designed to keep them out of reach of the International Red Cross, as well as U.S. courts.

The Bush era Pentagon charged Mohammed with war crimes in 2008. But the Obama administration withdrew the case, and chose to try the case in New York City with a civilian judge and jury.

Congress and political opposition thwarted that effort. Now the case is back at the Guantánamo war court, where the Pentagon uses some Justice Department lawyers and blends both military and civilian practice.

Different courts
• UK vs. CIA

In the Masri case, the British government imposed two conditions on the extradition of the five accused terrorists to U.S. soil — no execution if convicted and no military prosecution, then turned him and four other men over to U.S. jurisdiction. Mohammed came to military custody from the CIA, which still controls classifications in the 9/11 case, notably the details of his black site detentions and interrogations, including 183 rounds of waterboarding.

• Federal judge vs. 40-second delay

Spectators walked in off the street, went through a metal detector and sat in court for Masri’s 30-minute arraignment. Sketch artists sat in the jury box, close enough to illustrate that Masri’s arms end in stumps, he says from an explosion in the 1980s while he fought the Soviet invasions of Afghanistan. For Mohammed’s arraignment, the Pentagon vetted spectators — Sept. 11 victims, legal observers, reporters, who in Cuba watched the 13-hour 9/11 proceedings through a soundproofed window behind the court. Sound comes in a 40-second sound delay, time enough for a censor to muffle with white noise button sensitive information. The sketch artist was sequestered in back too. A security officer inspected her drawings before the public could see them.

• Release vs. indefinite detention

If a civilian jury acquits Masri, he goes free. The United States might seek to deport him back to his native Egypt or negotiate his return to Britain, where his family lives. Acquittal by military commission does not automatically guarantee you get out of Guantánamo. Obama detention doctrine says the Pentagon can keep a foreigner indefinitely as a captive of the war on terror — unless a federal court orders the government to let the man go.

• Settled system versus expeditionary justice

There’s no question that Masri is entitled to the protections of the U.S. Constitution at his trial. Not so at the U.S. military court in Cuba. Defense lawyers have asked the Army colonel presiding at the 9/11 trial to rule on whether military commissions are governed by the U.S. Constitution. The prosecutors want that issue decided later.
 
9/11 trials: Torture, secrecy on Gitmo hearings menu

http://tribune.com.pk/story/451339/911-trials-torture-secrecy-on-gitmo-hearings-menu/

By AFP
Published: October 14, 2012

WASHINGTON: The spectre of torture and the veil of secrecy will loom large over a new series of hearings starting on Monday at the US naval base in Guantanamo Bay, Cuba, for the accused plotters of the 9/11 attacks.

It will mark the second appearance for the self-proclaimed mastermind, Khalid Sheikh Mohammed, and his four co-defendants before the special tribunal known as military commissions on the US naval base.

The preliminary hearings designed to pave the way for the ‘trial of the century’ will take place all week at the outpost in south-eastern Cuba after being postponed more than two months so that the defendants could observe the holy month of Ramadan and due to an Internet outage and a storm.

“One of the major issues that will be decided is whether the US Constitution, which governs all cases in the US, also applies to Guantanamo Bay or whether Guantanamo Bay is a sort of legal black hole as it’s been described,” said James Connell.

He is representing Khalid Sheikh’s Pakistani nephew Ali Abd al Aziz Ali, also known as Ammar al Baluchi.

At issue are the torture and abuse the five men said they suffered at the hands of US authorities, and the classified status that President Barack Obama’s administration says covers details of the suspects’ treatment, citing national security concerns.

Among the petitions that will be examined during the five days of hearings are government motions to ‘protect against disclosure of national security information’ and to ‘protect unclassified discovery material where disclosure would be detrimental to the public interest.’

With prosecutors refusing to reveal information deemed classified and holding parts of the debates behind closed doors, the American Civil Liberties Union (ACLU) rights group and 14 media groups are calling for complete transparency.

“The public has the right to see the proceedings,” said Connell.

Cheryl Bormann, who is defending Walid bin Attash of Yemen, agreed that the hearings should be part of an ‘open process, a fair process, a transparent process.’

“The government shouldn’t be able to hide behind classification issues,” she added.

“If this is going to be a trial about what happened on 9/11… only the truth should come out and not the US government’s spin on the truth until they opened the process; right now, it’s just their spin.”

Because of the men’s treatment at the CIA’s secret prisons where they were held prior to their 2006 transfer to Guantanamo, ‘there’s a presumptive classification about everything our clients say to us, even the most inaccurate things,’ said James Harrington, attorney for Yemeni Ramzi Binalshibh.

All documents and other communication between lawyers and their clients are subject to censorship.

“That’s a clear violation of our rights as lawyers, (we should) be able to talk about things without interference, or Big Brother looking over your shoulder at everything you do,” Harrington told AFP.

Journalists and a select number of members of the public follow the proceedings from behind soundproof glass, and the audio only reaches them after a 40-second delay.

The delay allows a military censor to blur statements whose content is deemed a threat to national security.
 
ACLU to Argue Next Week at Guantánamo Tribunal Against Censorship of Torture Testimony

http://www.aclu.org/national-securi...tribunal-against-censorship-torture-testimony

October 12, 2012

ACLU Motion Asserts Public’s Constitutional Right to Open Trials and Challenges Government’s Proposed Censorship Regime

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; [email protected]

GUANTÁNAMO BAY NAVAL BASE, Cuba – Early next week, a military commission judge at Guantánamo Bay will hear oral argument on the American Civil Liberties Union’s challenge to censorship of torture testimony at the trial of the 9/11 defendants. This will be the ACLU’s first appearance arguing before the tribunal.

Based on the schedule released by the judge, the ACLU expects to be heard Monday or Tuesday. The hearing was originally scheduled for August, but was delayed by Hurricane Isaac.

In May, the ACLU filed a motion asking the commission to deny the government’s request to prevent the public from hearing any statements by the defendants about their torture and detention while in U.S. custody. On that basis, the motion asks the commission to bar a delayed audio feed of the proceedings, or, in the alternative, promptly release an uncensored transcript.

“The government’s claim that it can keep from the public the defendants’ testimony about their ‘thoughts and experiences’ of torture is legally untenable and morally abhorrent,” said Hina Shamsi, director of the ACLU’s National Security Project and the attorney who will argue the motion Wednesday. “There is an ongoing public debate about the fairness and transparency of the Guantánamo military commissions, and if the government succeeds in imposing its desired censorship regime, the commissions will certainly not be seen as legitimate.”

The government contends that any statements by the defendants’ concerning their “exposure” to the CIA’s detention and interrogation program are classified as “sources, methods and activities” of the U.S. and can be withheld from the public. A group of 14 press organizations will also be arguing next week for the media’s right to access the commission's proceedings.

The ACLU’s motion is at:
http://www.aclu.org/files/assets/aclu_motion_for_public_access_5_2_12.pdf

The ACLU’s reply brief to the government is at:
http://www.aclu.org/files/assets/aclu_reply_brief_-_motion_for_public_access_at_guantanamo.pdf
 
Victims' Families Invited to Watch 9/11 Hearings

http://abcnews.go.com/US/wireStory/victims-families-invited-watch-911-hearings-17475637#.UHswkBjBiMM

By DAVID B. CARUSO Associated Press
NEW YORK October 14, 2012

(AP) The families of people killed in the Sept. 11 attacks have been invited to military installations in four states to watch pretrial hearings in Guantanamo Bay, Cuba, for five men charged with planning or assisting the terrorist strike.

The hearings, which begin Monday, are closed to the public, but relatives who register in advance can watch on closed-circuit television at forts in New Jersey, Massachusetts, Maryland and New York City.

The suspects on trial before the military commission include Khalid Sheikh Mohammed, the self-professed mastermind of the Sept. 11 attacks.

An earlier round of hearings in May was also transmitted to viewing locations for relatives of the victims, survivors of the attacks, and emergency personnel who responded to the disaster.

Those proceedings were an exercise in frustration for some viewers, as the suspects refused to cooperate with the court, or interrupted proceedings to kneel in prayer.

Jim Riches, whose firefighter son, Jimmy, died at the World Trade Center, said he planned to view Monday's hearing at Fort Hamilton, in Brooklyn.

"It's difficult for the families. But it is 10 years later, and we have no justice," Riches said. "I just wish it was being broadcast throughout the whole world so everyone could see it, and could see what these guys are like."

The nearly 3,000 people killed in the attacks each have many relatives who could see the trial, but attendance at the first round of hearings last spring was light, with only a few dozen people at each site.

Riches said he didn't expect a large crowd for Monday's session either, largely due to the pain of reliving the attacks.

"A lot of people are moving on with their lives. A lot of people are just trying to forget about it and move on. But you can't, really. They aren't going to walk back in through the door," he said, referring to the victims.
 
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