Monday’s 9/11 case hearing is closed session at Guantánamo

By Carol Rosenberg The Miami Herald

The military judge in the September 11 conspiracy trial ordered a daylong closed hearing of the Guantánamo war court Monday to map which of this week’s arguments could be heard by the five alleged 9/11 plotters as well as the public.

One legal motion up for consideration is a defense request that the judge, Army Col. James L. Pohl, impose a protective order on any remnants of the CIA’s secret overseas prison network that President Barack Obama ordered shut down. It was in one of those so-called “black sites” that U.S. agents waterboarded the alleged mastermind, Khalid Sheik Mohammed, 183 times.

Pohl also has listed for discussion a sealed prosecution motion that’s so secret it has no name on the Pentagon’s docket, which boasts “fairness, transparency, justice.” Lawyers already began arguing that secret motion in a short closed hearing this summer.

Civilian and military lawyers for the accused terrorists have been focusing on surfacing information about what the CIA did to the men after their capture in Pakistan in 2002 and 2003. They argue that because the CIA disappeared their clients, questioned them with now forbidden “enhanced interrogation techniques” and denied them access to lawyers the case should go forward as a non-capital trial.

No date has been set for the trial itself, although the chief prosecutor has proposed it start in January 2015.

Prosecutors, who don’t concede that the CIA tortured the accused before they got to Guantánamo in 2006, argue what the CIA did to them would be part of the sentencing phase that decides on whether to execute them if they are convicted.

Defense lawyers say their detour through the Bush-era Rendition, Detention and Interrogation program implicates even this pretrial phase.

Pohl, who presided at the courts martial of U.S. soldiers who abused captives at Abu Ghraib, stopped the Bush administration from razing the prison in Iraq. Defense lawyers want a similar order on what’s left of the secret CIA prison network, which reportedly included lockups in Thailand, Poland and Afghanistan.

But the White House has never declassified the Bush-era CIA program. That means, for example, that war court rules prohibit the lawyers or accused from disclosing the locations of the secret CIA interrogation sites in open court.

So, under a structure that borrows from both civilian and military practice, the lawyers and judge were to discuss how to make legal arguments that don’t divulge classified information — so that the accused as well as the public can listen in. In his order, Pohl said Monday’s closed session would start at 9 a.m., and would reopen Tuesday with the accused and public admitted.

“The hearing will be in camera and closed to the public,” said the judge’s order that listed 43 filings involving classified information as up for discussion in closed session.

At this stage, the hearings are tackling what charges, procedures and law will govern the death-penalty tribunal.

Issues include how the lawyers can communicate with the alleged terrorists who are confined to a secret prison at the U.S. Navy base in southeast Cuba and still preserve the attorney-client privilege; whether the judge will order the U.S. government to let defense lawyers question certain witnesses; what kind of resources the defense will get and what substitutions for actual evidence the prosecutors may present at trial.

One topic on the judge’s list of motions for consideration in the closed session asks the judge to order the CIA to provide defense lawyers for Mohammed’s nephew and co-defendant, Ammar al Baluchi, with the same information it gave the filmmakers of “Zero Dark Thirty.”

The movie includes a character named Baluchi. His lawyers argue that the CIA must have told the filmmakers more about what happened to their client in the CIA black sites than his own defense team, because the CIA has given the defense nothing.

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