Guantanamo prisoner Ramzi Binalshibh, right, sits at a defense table with… (Janet Hamlin / Associated…)
FT. MEADE, Md. — A military commission judge said Wednesday that he expects to issue a protective order on the handling of classified information in the case of the top five alleged conspirators in the Sept. 11, 2001, terrorist attacks.
Such an order would settle the most crucial dispute between prosecutors and defense lawyers on whether stories of torture or inhumane treatment will ever make it into the courtroom at the U.S. naval base at Guantanamo Bay, Cuba.
His decision, which he now plans to research after hearing legal arguments over the last two days, will determine how much the public ultimately will learn about how allegedly Sept. 11 mastermind Khalid Shaikh Mohammed and the others were treated at secret CIA “black sites” in the only criminal case to arise from the worst terrorist attacks in U.S. history.
Prosecutors want no mention of the defendants’ treatment before being shipped to Guantanamo Bay in 2006, even though there already has been a public acknowledgement that Mohammed, for instance, was waterboarded 183 times in efforts to get him to talk about other pending terrorist attacks.
The government contends the treatment of prisoners has no bearing on the conspiracy and terrorism charges or whether the they should be executed if convicted in the plane attacks at the World Trade Center in New York and the Pentagon outside Washington, and the failed attack that ended in a rural area in western Pennsylvania.
But defense lawyers said they were hamstrung in not being allowed to even talk to their clients about their past treatment. They want to use the accounts of harsh interrogation as arguments for sparing the men’s lives on the basis that their statements were coerced. They said the system is so “rigged” against the suspects that they cannot ask their clients about a multitude of issues, from the history of military jihad to what they had for lunch.
Sorting out these sharp differences now falls to Judge James L. Pohl, an Army colonel and Pepperdine University law school graduate. He signaled on Wednesday that it was time to end the legal debate and for him to begin preparing a ruling.
“I will make some decision and probably issue a protective order,” he said from the bench inside the courtroom at the prison compound. “Both sides will get a ruling on this.”
How far the judge will go remains uncertain. He asked both sides to review his order once he files it, suggesting he would not be against amending the ruling once he gathers their input.
But Pohl also has indicated that he does not necessarily think he can legally declassify national security information even if it already has been made public, such as Mohammed’s waterboard treatment. While that bodes well for the government, defense lawyers saw it as absurd since the public -- and, more crucially, the trial jury -- would probably already know about it.
The other four defendants are Ramzi Binalshibh, the alleged plot cell manager; Walid bin Attash, an alleged Al Qaeda training camp steward; and Ammar al Baluchi, a.k.a. Ali Abdul Azis Ali, and Mustafa Ahmed Hawsawi, alleged Al Qaeda financiers.
The Guantanamo Bay hearings are being telecast via a secure video link to Ft. Meade.