Janet Hamlin / AP
Guantanamo prisoner Ramzi Binalshibh, right, sits with a court translator and his lawyer Navy Lt. Cmdr. Kevin Bogucki, left, during a Military Commissions pretrial hearing for five prisoners accused of the Sept. 11 terrorist attacks, at the U.S. Naval Base in Guantanamo Bay, Cuba, on Tuesday.
The military tribunal of 9/11 terrorism suspect Khalid Sheikh Mohammed and four co-conspirators resumed in Guantanamo Bay, Cuba on Tuesday, plunged into arguments over one of the thorniest subjects that the court must iron out before the trial — whether the suspects can talk about their detention and harsh interrogation in secret CIA prisons prior to their transfer to Guantanamo Bay in 2006.
The men are accused of planning and providing logistical support for the Sept. 11, 2001 attacks by hijackers who crashed planes into the World Trade Center, the Pentagon and a field in Pennsylvania, killing nearly 3,000 people.
Mohammed and the other four who are portrayed as his underlings face charges that include terrorism and murder, and they could be sentenced to death if convicted.
This week’s proceedings hear arguments on 25 pretrial motions dealing mainly with privacy issues and the detainees' rights, and set the ground rules for the trial which is likely at least a year away.
Prosecutors have asked the judge to approve what is known as a protective order intended to prevent the release of classified information during trial.
The gag order prohibits mention of what the defendants experienced or learned during their interrogation because the tactics used on them were classified.
The defense argued that the government gave up the right to keep interrogation tactics classified when they exposed the defendants to the process.
They mainly object to one portion of the order, which says that, "Any statements made by the accused are presumptively Classified Information." The defense teams believe that that is too broad a statement, and that there is no such thing as "presumptive classification" — that information is classified or not.
The judge, Army Col. James Pohl, pushed back on their argument, saying that both sides agree with the definition of what is classified and what is not, and that the attorneys are required not to disclose new information they deem could be classified.
"We're not talking about what you had for lunch today," Pohl said.
Janet Hamlin / AP
Merrilly Noeth, a relative of a victim of the Sept. 11 attacks, is pictured watching from behind sound-proof glass on the second day of the Military Commissions pretrial hearing for the five men accused of planning the attacks, at Guantanamo Bay U.S. Naval Base in Cuba, on Tuesday. Only two of five suspects were present in the second day of the proceedings--Yemenis Walid bin Attash and Ramzi Binalshibh.
But an attorney for Ramzi Binalshibh argued that issues just that mundane do become a hindrance, citing an example from defending another detainee.
After several hours of arguments against the protective order, the judge did not rule on the motion to strike the gag order Tuesday.
First Amendment appeal
Instead, Pohl moved on to hear arguments from First Amendment attorney David Schulz, on behalf of 14 U.S. news organizations seeking to report on legal proceedings at Guantanamo — classified information or not.
Schulz argued that the gag order should be lifted because the information about what happened to the defendants during their interrogations has been widely reported in the media.
"The New York Times is not a classification authority," Pohl shot back, saying that just because something is reported in the news or widely known doesn't mean it's now unclassified.
Schulz argued that the use of the 40-second delay switch also violates the First Amendment, but Pohl dismissed that, as well, saying that the switch can prevent the release of classified information that is inadvertently disclosed.
ACLU attorney Hina Shamsi was next to argue for more open proceedings, saying that when issues such as rendition and torture are under discussion, the public has a right to know about it.
Shamsi added that the public should be able to determine for themselves whether punishment is justified, the decide on the lawfulness of government actions with the defendants, and the overall fairness and legitimacy of these proceedings.
The judge stopped her there, saying the court would recess for the day to respect the defendants right to afternoon prayers.
The court will take up this argument again at 9am Wednesday, when the ACLU attorney will continue her arguments.
Last minute boycott
All five of the men were at Monday’s hearings, but on Tuesday, Mohammed, Saudi defendant Mustafa Ahmad al-Hawsawi and Pakistani national Ali Abd al-Aziz Ali all bowed out. Walid Bin Attash and Ramzi Binalshibh, both from Yemen, did attend.
Mohammed, who has previously claimed he was the mastermind of the terrorist attacks, was taken from his cell at the U.S. base in Cuba to a holding cell outside the courtroom, then chose to boycott at the last minute, said a Navy officer whose name was not released by the court for security reasons.
He did not give a reason for sitting out the Tuesday hearing, but on Monday he dismissed the military tribunal with scorn, saying "I don't think there is any justice in this court."
Pohlruled Monday that the defendants have the right to be absent from this week's pretrial hearings, but said they would have to attend the trial.
The chief prosecutor, Army Brig. Gen. Mark Martins, had argued that the rules for the special war-time tribunals known as military commissions required the defendants to attend all sessions of the court.
But lawyers for the men disagreed, arguing that the threat of being forcibly removed from their cells would be psychologically damaging for men who had been brutalized while held during their captivity by the CIA.
The U.S. government has acknowledged that the defendants were subjected to "enhanced interrogation techniques" which in some cases included the simulated drowning method known as waterboarding.
"Our clients may believe that ... 'I don't want to be subjected to this procedure that transports me here, brings up memories, brings up emotions of things that happened to me,'" said Jim Harrington, who represents Binalshibh.
Harrington's statement elicited groans from a small group of family members of Sept. 11 victims who were chosen by lottery to view the proceedings at Guantanamo. A few other families watched the proceedings on closed-circuit TV from U.S. military bases in New York, New Jersey, Massachusetts and Maryland.
Defendant dress code
Also on Tuesday, the court dealt with what the detainees are allowed to wear in court.
The attorney for Mohammed, U.S. Army Capt. Jason Wright, explained that his client wants to wear a military-style camouflage vest over his traditional attire. He argued that Mohammad wore military-style clothing when fighting against the Soviets for the U.S. government in Afghanistan, so he has a right to do so in this courtroom, as well. Not allowing him to wear it undermines his presumption of innocence, the attorney argued.
Pohl said that the defendants would not be permitted to come into court in a complete U.S. Army uniform, but, he would not forbid all camouflage.
The five men were arraigned in May, and subsequent hearings were pushed back for various reasons.
A hearing in July was postponed to allow the defendants to observe the holy month of Ramadan. Hearings in August were delayed when an Internet outage left the lawyers unable to access their electronic legal documents. That hearing was later canceled altogether as Tropical Storm Isaac approached.
A hearing scheduled for late September was also delayed because the work space for the defense lawyers was shut down due to a rat infestation and mold, which lawyers claimed were making them sick, Reuters reported.
Pohl ruled on Oct. 5 there would be no further postponements to the hearings.
An earlier attempt to try the five men at Guantanamo ended when the Obama administration tried to move the trials to New York City, where two of the hijacked planes slammed into the World Trade Center.
That was abandoned under pressure from Congress and from New Yorkers, and the charges were re-filed in Guantanamo.
NBC News' Kari Huus and The Associated Press contributed to this report.
More world stories from NBC News:
- Assad forces using cluster bombs, rights group says
- Video: Pyramid reopens despite turmoil in Egypt
- Video: Pakistan teen shot by Taliban moves hands, feet
- Clinton reaffirms support for Libya, emerging democracies
- Madonna dedicates striptease to child activist shot by Taliban
- Western intelligence sees 'small signs of wavering' on Iran nuclear policy