Justice Rolls Slowly in Alleged 9/11 Suspects’ Case

By Donna Miles
American Forces Press Service

FORT MEADE, Md., Feb. 15, 2013 – The latest round of pre-trial hearings for the alleged 9/11 mastermind and four accomplices wrapped up yesterday at Naval Station Guantanamo Bay, Cuba, much as it started: with hours of wrangling over legal and privacy issues and continued protests by the defense team that the system is rigged.

Army Col. James Pohl, the commission judge, concluded four days of pre-trial hearings in the case against Khalid Sheikh Mohammed, and accomplices Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.

All five defendants were captured in Pakistan in 2002 and 2003 and have been confined at Guantanamo Bay since 2006.

They were charged during their arraignment in May 2012 with terrorism, conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft. The prosecution has since requested that the conspiracy charge be dropped.

Among the most significant developments during this week’s proceedings was the revelation that microphones as well as cameras have been hidden in several locations around the detention facility -- including inside what looked like smoke detectors in rooms where defense attorneys meet with their clients.

Detention officials told the court these measures were taken for security reasons only, and prosecutors insisted that they have never eavesdropped on privileged conversations between the defendants and their counsel. The defense, however, called the mere presence of the microphones an ethics violation that undermines their ability to provide a valid defense.

Pohl ordered that the microphones be removed from rooms where the attorneys meet with clients, and agreed to a defense request that they be held so they can be inspected later, if the defense wishes to.

Defense attorneys also charged that the defendants’ property, including confidential mail from their lawyers, had been seized from their cells this week while they appeared in court. Bin Attash, who was among those who reported missing items, stood up and began to address the judge about the matter. Pohl threatened to have him removed from the courtroom if he did not sit down, but assured him he would have an opportunity to speak later, under oath.

Navy Lt. Cdr. George Masucco, the detention facility’s assistant staff judge advocate, told the court that the guards seized what they believed to be contraband materials during routine safety inspections earlier this week. Among the suspect material was a photo of the Grand Mosque in Mecca, Saudi Arabia, a metal pen, toilet paper that had English writing on it and mail that had not been properly marked to indicate it had been reviewed for content.

Masucco confirmed during cross examination that some of the challenged materials, including the photo, did, in fact, have the proper markings. However, he noted that some of those stamps didn’t conform to established detention center requirements, such as the reviewer’s initials.

Defense Attorney Cheryl Bormann argued that repeated inspections of the same materials by guards who rotate through assignments at Guantanamo Bay amounts to harassment. This led to a long discussion about the difference between an inspection and a search, and who needs to be present when one is conducted.

Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, told the judge the camp commander would conduct an investigation to determine facts regarding the latest seizures. That information will be reported to the court within seven days, he said.

In addition, Pohl gave the defense a week to come up with recommended language about inspection protocols, and said the prosecution will get a week to comment on it. Based on that input, the judge said he will make a ruling to clear up future confusion.

In another matter, Navy Cmdr. Walter Ruiz, one of the defense attorneys, told the judge he had not received the support he needed within the timeframe he needed it, including security clearances for the translator he had requested.

Retired Navy Adm. Bruce MacDonald, the convening authority for the commissions, disputed Ruiz’ claim, telling the court during testimony delivered via teleconference that he had complied with the defense’s requests. MacDonald said he will step down from his three-year appointment when it expires March 21, before the next series of pre-trial hearings, scheduled for April.

All five defendants appeared in the courtroom yesterday. Mohammed, with a bright red beard, wore a traditional white turban and, in a concession the court granted at an earlier pre-trial hearing, a camouflage vest.