The U.S. detention center at Guantanamo Bay, Cuba. (Paul J. Richards, AFP/Getty…)
FT. MEADE, Md. — Three of the five alleged Sept. 11 conspirators, including purported mastermind Khalid Shaikh Mohammed, refused to attend a pretrial hearing Tuesday where lawyers argued over one of the significant overlying issues in their case — whether potential evidence of torture and other classified material will be discussed publicly in their trial at the U.S. naval base on Guantanamo Bay, Cuba.
The government wants a protective order prohibiting the release of material from CIA "black sites," the secret prisons where the defendants were held before being moved to Guantanamo Bay in 2006. Defense lawyers complain that in addition to hampering them at trial, the restrictions block them from even discussing those events with their clients, including Mohammed, who was waterboarded 183 times.
The issue is crucial to both sides. Prosecutors do not want trial jurors hearing about torture or other "enhanced interrogation techniques," and argue it would be a "sideshow" distracting from whether the defendants are guilty of conspiracy and terrorism in the 2001 attacks that killed nearly 3,000 people.
But defense lawyers said that restriction would severely handicap them in strategizing on how best to defend the clients in the capital murder trial, tentatively scheduled to begin in May.
"They're holding our clients in isolation," said an exasperated Navy Lt. Cmdr. Kevin Bogucki, an attorney for Ramzi Binalshibh, who allegedly managed the terrorist cell that carried out the plane attacks at the Pentagon and in New York and Pennsylvania.
Cheryl Bormann, a lawyer for Walid bin Attash, an alleged Al Qaeda training camp steward, was equally frustrated with limited access to her client in the heavily guarded prison.
"He can't call me to say he's sick," she said. "We can't write to our clients. Now on top of it I have additional rules, and this protective order is completely unnecessary. It would be creating more difficulties."
But Joanna Baltes, a Justice Department lawyer and deputy trial counsel for the prosecution, said the government must ensure against leaks of classified national security information. "We want to prosecute this case and go forward and not be constantly concerned about classified information being harmed," she told the judge.
"The government is not seeking to impose any restrictions on the accused themselves," she added. "The restrictions and the obligations are strictly on the attorneys who hold security clearances in this case."
The judge, Army Col. James L. Pohl, also heard from attorneys for news organizations and the American Civil Liberties Union who urged greater public access to the case.
Pohl did not rule on the matter.
He did allow Mohammed to wear camouflage clothing to future hearings that highlights his military experience, if it does not include U.S. military insignia or pose a security problem.
On Monday, Pohl ruled for the defense by allowing defendants to voluntarily choose not to attend each day's proceedings, an offer Mohammed and two others accepted Tuesday.
A Navy commander who was not identified by the military testified that Mustafa Ahmed Hawsawi and Ammar al Baluchi, a.k.a. Ali Abdul Aziz Ali — two alleged Al Qaeda financiers — signed waivers in the morning and were allowed to remain in their prison cells.
She said Mohammed at first said he wanted to attend. "I knelt down and spoke face to face with him through a slot in the door," the commander testified. He was moved to a holding cell near the courtroom, but just before the hearing began changed his mind and signed the waiver, the commander said.
Pohl said of the three detainees: "Tomorrow they can choose to come or not to come."
In a related matter, a federal appeals court in Washington overturned the conviction of Salim Hamdan, a driver for then-Al Qaeda chieftain Osama bin Laden, and ruled that military tribunals were not authorized to try prisoners suspected of providing material support to terrorist groups before 2006.
Though it would not apply to Mohammed and the four others in the upcoming trial, the decision could significantly endanger other military commission cases, according to human rights lawyers. Hamdan was returned to Yemen in 2008 and released.
The Guantanamo Bay hearings are being telecast via a secure video link to Ft. Meade.