By Donna Miles
American Forces Press Service
FORT MEADE, Md., Oct. 16, 2012 - Three of the five defendants charged with planning and conducting the 9/11 terrorist attacks took advantage of yesterday's military court ruling and sat out of their pre-trial hearing today as the judge granted them broad latitude regarding what they can wear when they do choose to appear in court.
On the second of what is expected to be a five-day hearing at Naval Air Station Guantanamo Bay, Cuba, the judge, Army Col. James Pohl, also took up what is considered a main issue: how to proceed with the trial without compromising classified information.
Khalid Sheik Mohammed, the self-proclaimed mastermind of the attacks, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi waived their right to attend the second day of pre-trial hearings. Based on Pohl's ruling, the waivers apply to one day only, and the defendants must repeat the process the morning of any court session they wish to skip.
Today, Walid Muhammad Salih Mubarak bin Attash and Ramzi Binalshibh were the only defendants to sit in the courtroom with their defense attorneys.
Pohl opened today's hearing by ruling that the accused can wear pretty much what they want to their court proceedings, including camouflage clothing that both Mohammed and bin Attash have requested. Pohl stipulated, however, that the clothes must not be legitimate U.S. military uniform items and, if prison garb, must not be in a color that misrepresents the detainee's security status. The judge said he would issue the ruling in writing to spell out details.
Mohammed's military defense attorney, Army Capt. Jason Wright, argued that the accused should be able to dress to reflect their affiliations. He noted, for example, that Mohammed wore a uniform as a member of the mujahedeen during the Soviet occupation of Afghanistan and during operations in Bosnia-Herzegovina.
Army Maj. Joshua Kirk, representing the Defense Department, argued that no legal precedent gives prisoners "the unfettered right to wear clothing of their own choosing." He noted that a former Joint Task Force Guantanamo commander had issued specific dress guidelines both as a force-protection measure and to ensure detainees don't use their attire to make an inflammatory statement.
Pohl affirmed the JTF Guantanamo commander's authority to designate what detainees can wear in detention and when transported to court proceedings, but not inside the courtroom.
Much of today's hearing focused on how to proceed with the military tribunal without divulging classified information. The prosecution has asked for a protective order that includes "presumptive classification," which essentially means that anything the defendants say is treated as classified unless it is proven otherwise.
Justice Department Attorney Joanna Baltes said the presumptive classification measure helps ensure the government can prosecute the case without disclosing classified information that threatens U.S. national security.
However, Navy Lt. Cdr. Kevin Bogucki, Binalshibh's military defense attorney, called it "a scheme" that prevents detainees from testifying about everything that has happened to them since they were taken into U.S. custody, particularly in the hands of the CIA.
"It puts up barriers" and "makes this job impossible," agreed Cheryl Bormann, bin Attash's learned counsel, an attorney appointed by the Defense Department who has specialized training and experience in capital cases.
Baltes said a court security officer or other official could operate as a middleman, serving as a neutral party to smooth issues between the defense teams and intelligence agencies.
James Connell, learned counsel for Abdul Aziz Ali, argued that the defense team needs a security official to help them identify what information might be classified. "We need a mechanism for privileged classification review and we don't have it," he said. "I don't care what you call it or how you organize it. We need it."
David Schulz, a media lawyer representing 14 news organizations, argued that the draft protective order would violate the public's constitutional right to information. The issue, he said, boils down to whether the public's constitutional right to observe and attend court proceedings extends to the military tribunals.
"We don't have secret trials in this country," Schulz told Pohl. "We, as a country, take the guarantee of open trials very seriously."
Schulz said closed sessions are appropriate when necessary to protect information that, if released, could substantially impact national security. However, he pressed for a narrow definition of what issues are important enough to override the public's constitutional rights and warrant closed sessions.
Hina Shamsi, representing the American Civil Liberties Union, also argued against what she called a thinly veiled effort to censor the defendants' testimony about their torture and detention while in U.S. custody.
The ACLU filed a motion in May asking the commission to bar a delayed audio feed of the proceedings or promptly release an uncensored transcript.
"There is an ongoing public debate about the fairness and transparency of the Guantánamo military commissions," Shamsi said of the motion. "And if the government succeeds in imposing its desired censorship regime, the commissions will certainly not be seen as legitimate."
Pre-trial sessions are expected to continue through Oct. 19. Pohl said he plans to schedule one week of pre-trial hearings in December, January, February and March to iron out administrative and legal issues before the actual trial begins later next year.
All five of the dependents were captured in Pakistan between 2002 and 2003 and have been confined at Guantanamo Bay since 2006.
They were charged during their arraignment in May 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. If found guilty, they could receive the death penalty.
The proceedings are being broadcast via closed-circuit television to a media center here at Fort Meade and at several other military bases around the country.
Note: Above is a Defense Department photo of the Pentagon after the 9/11 terrorist attack.
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