Sept. 11 Defense Seeks Torture Evidence at Cuba Hearing

By David Glovin – Jan 28, 2013 12:00 AM ET

Khalid Sheikh Mohammed and four others accused in the Sept. 11, 2001, terrorist attacks are to return to a military courtroom as their lawyers seek permission to collect evidence showing that some of the men were tortured.

Torture is one of several legal issues scheduled to be raised before a military judge as four days of hearings start today at the U.S. naval base in Guantanamo Bay, Cuba. Mohammed, the alleged mastermind of the attacks, has been held since 2006. In October, during the first round of pre-trial hearings, Mohammed used the proceedings to accuse the U.S. government of killing “millions” of people and employing torture “under the name of national security.”

James Connell, an attorney for Ali Abdul Aziz Ali, a nephew of Mohammed who allegedly helped finance the hijackers, said at a press conference in Cuba yesterday the defendants may be able to exclude some government evidence at trial if they can show it was derived from torture. The men, who face a possible death sentence if found guilty, may also use evidence of torture to seek reduced sentences.

This week’s proceedings are “the first step toward finding what happened in the torture of these men,” Connell said.

Mohammed, Aziz Ali, Walid bin Attash, Mustafa Ahmed Adam al-Hawsawi and Ramzi bin al Shibh are accused of plotting the attacks that used hijacked passenger airplanes to kill almost 3,000 people at the World Trade Center in Manhattan, the Pentagon in Virginia, and inPennsylvania.

Pakistan Raid

Mohammed, who was captured in a 2003 raid in Pakistan, and the others are charged with conspiring to finance, train and direct the 19 hijackers who seized the planes, terrorism, hijacking aircraft, conspiracy, murder in violation of the laws of war and attacking civilians.

The Central Intelligence Agency has acknowledged Mohammed was one of three al-Qaeda operatives who were water-boarded. He underwent the measure, which simulates drowning, 183 times, according to government documents.

At this week’s hearings, the defense is asking the judge, Army Colonel James Pohl, to order the U.S. to preserve evidence from so-called black sites where some of the defendants were allegedly tortured. The defense also wants an order compelling prosecutors to turn over documents about buildings where the defendants were held and about White House and CIA deliberations about the detention program.

“We have to know about the buildings,” Connell said.

It’s unclear if the torture issue, which may come before the judge tomorrow, will be discussed in a public or closed proceeding.

‘National Security’

“National security requires a balance,” Army Brigadier General Mark Martins, the lead prosecutor, said in a statement. “On the one hand, our democracy and our system of justice demands openness. On the other hand, certain information must be protected from public disclosure.”

Other legal questions on the agenda today include whether the military may review mail that the U.S.-based defense lawyers send to their clients.

To date, the defense has submitted more than 70 legal motions, and Pohl has ruled on 20 of them. The government has turned over more than 80,000 pages of unclassified documents to the defense. A trial is at least a year away, defense lawyers have said.

One issue not on the agenda this week is a defense request that the judge dismiss all eight charges including conspiracy. Those motions will be argued later this year.

Conspiracy Clash

After a federal appeals court in October tossed out the conspiracy conviction of Osama bin Laden’s former driver, Salim Hamdan, Martins recommended dropping the conspiracy count, saying he would focus on the seven other charges. The Pentagon official who oversees the tribunals said this month that he won’t withdraw the conspiracy charge.

Martins said the disagreement reflects the fairness of the tribunals.

“The fact that officials within this system make independent decisions within their purview, if anything, bolsters rather than undermines confidence,” he said in a statement.

All five defendants are to be in court today, although they may skip subsequent court sessions if they choose. During their arraignment in May and at the hearings in October, the defendants sat quietly at times, listening to legal arguments, and at other times spontaneously protested the proceedings or made political statements.

Cantor Fitzgerald

Eight relatives of the victims have made the trip to the naval station to watch the hearings. Among them are Joyce and John Woods of Pearl River, New York, whose son, James, 26, was working on the 104th floor of one of the World Trade Center towers at Cantor Fitzgerald LP when the planes struck.

“We miss him every second of every day,” Joyce Woods told about 20 reporters who are also at Guantanamo Bay for the hearings. “We’re here to bear witness, hopefully to see justice.”

Loreen Seelitto, whose son Matthew also worked at Cantor Fitzgerald, voiced concern that Americans may be losing interest in the case.

“I don’t think that people really understand that the case is going on,” she said.

The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).

To contact the reporter on this story: David Glovin in Guantanamo Bay, Cuba, atdglovin@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net