Guantánamo prosecutors say arguments on waterboarding should be in secret session



The prosecution in the Sept. 11 conspiracy trial put the judge on notice Wednesday that it wants to hold secret pretrial motions in the death-penalty case — and exclude both the public and five alleged terrorists during discussion of their years in CIA custody.

Exclusion must be handled on a case by case basis, said Department of Justice attorney Joanna Baltes. But, she argued, the accused don’t have an absolute right to hear legal arguments that discuss classified information before a military jury starts hearing evidence.

Defense lawyers disagreed. At issue, noted attorney David Nevin for alleged mastermind Khalid Sheik Mohammed, is the Bush administration’s Rendition, Detention and Interrogation program, in which his client was waterboarded 183 times.

“Mr. Mohammad has a right to be present when we’re talking about matters that deal with his torture,” he said. Nevin invoked the 8th Amendment prohibiting cruel and unusual punishment, and said Mohammed has a right to see evidence the against him.

Otherwise, he said, make it a non-capital trial.

For the discussion, Mohammed sat at the lead defendant’s table leafing through legal papers, his four co-accused seated behind him.

A day earlier the five men voluntarily skipped legal arguments over the process of creating the war court case that accuses them of financing, training and directing the Sept. 11, 2001 hijackings. The attacks killed 2,976 people in New York, the Pentagon and Pennsylvania.

Baltes countered that Congress did not give Guantánamo war court accused an absolute right to attend a pretrial phase when lawyers were arguing legal issues. “If it’s a question of law, then there’s no deprivation of the accused rights.”

Cheryl Bormann, defense lawyer for alleged al-Qaida lieutenant Walid bin Attash, noted that at issue was the CIA’s interrogation of the captives before they got lawyers and before they got to Guantánamo. Rather then exclude the accused, she said, declassify the program for all to see.

Jay Connell, attorney for Mohammed’s nephew, argued the U.S. lost its right to keep the CIA program a secret from the men when they put them in it.

The judge, Army Col. James L. Pohl, did not rule. It appeared argument on the issue might continue.

But last week Pohl closed the war court to both the public and the accused in another death-penalty case by declaring disclosure of certain information “could result in grave damage to national security.”

Read more Guantánamo stories from the Miami Herald

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