War court

Guantánamo lawyer floats possible defense argument: 9/11 attack justified



The accused mastermind of the Sept. 11 attacks has a right to justify the worst terror attack on U.S. soil at his death-penalty trial, and that requires exchanging material about jihad with his defense team, Khalid Sheik Mohammed’s lawyer told an Army judge Wednesday.

Veteran criminal defense attorney David Nevin invoked “recent history, ancient history” and “impressions throughout many areas of the world of Western oppression” in an argument to bring Guantánamo prison’s legal-mail handling policy in line with what he cast as American Bar Association standards.

And in the process, Nevin suggested that the alleged arch-terrorist who sports a hunting jacket and orange-dyed beard in court might defend the 9/11 hijackings that killed 2,976 people in New York, Pennsylvania and the Pentagon.

“Mr. Mohammed has a right to come here and put the events of Sept. 11 in historical perspective,” Nevin said.

Army Col. James L. Pohl, the judge, betrayed no reaction as Nevin argued such a defense is part of “thousands upon hundreds of thousands of cases going on in the United States today” — and that “the reasons for the actions that led to the events of Sept. 11” might persuade the judge or a military jury to either acquit Mohammed or spare him execution.

The trial itself is at least a year away. The prosecution has proposed a Sept. 22, 2014 start date, which the defense says is too soon in part because such basic issues as attorney-client privilege remain unresolved.

Nevin suggested the potential defense strategy in response to a prison camp rule that forbids him to discuss the topic of al-Qaida’s jihad, historical perspectives and ideological themes in attorney-client communications.

A prosecutor, Ed Ryan of the Justice Department, defended the prison camps restrictions. Guantánamo staff are obliged to protect the young soldiers functioning as prison camp guards, he said. Unchecked, he argued, a defense lawyer might send a client a book with “nothing but inflammatory and incendiary statements inside” written by someone of “questionable background.”

Nevin alluded to the possible line of defense on a day when Mohammed was in court, at times looking bored or sleepy in the third day of dry, legal pre-trial arguments, mostly by defense attorneys seeking witnesses in a series of motions that seek to get the case thrown out.

Francine Kaplan, whose daughter Robin was aboard the hijacked Flight 11 that struck the World Trade Center, declared herself untroubled by the potential of hearing the man, or his American lawyer, justify the attack in court.

“I was glad that they finally mentioned Sept. 11,” said Kaplan of Framingham, Mass., noting that the attacks were not mentioned in the first two days of this week’s hearings.

“We will never, ever, ever have closure,” she said of the Sept. 11 survivors. “I’m never going to have my daughter. I’ve never even been able to say goodbye.”

Defense lawyers in the case are obliged to do their best, she said, and a justification defense may be “something they have to go through. But we will win.”

In other developments Wednesday:

•  The lawyer for Mohammed’s nephew said the 9/11 defendant came to court with a copy of Fifty Shades of Grey that guards in his secret prison gave him in his cell Monday night. Ammar al Baluchi, 35, accused of doing money transfers and travel arrangements for some of the 9/11 hijackers, didn’t read it, and didn’t want it, said attorney James Connell III.

Baluchi never heard of the book before Monday, according to Connell, and first saw the title in a newspaper article he read Monday in court. A member of Congress reported last month that guards in the lockup where the 9/11 accused are held described the erotic, sometimes sadomasochistic novel as favored reading among captives once subjected to CIA interrogations, such as water boarding. Their lawyers subsequently dismissed the report, saying the sexy book was definitely not something that would interest their pious clients.

“If this is a practical joke, it has gone too far,” said Connell.

He planned to turn the uncatalogued book in to the Camp 7 lawyer, a Navy commander.

•  The lawyer for another 9/11 defendant bristled at the prison’s characterization of his client’s food protest a day earlier as over missing honey and olives. Prison spokesman Navy Capt. Robert Durand said Ramzi bin al Shibh got a typical halal meal but protested the absence of olives and honey as “psychological torture.” Bin al Shibh defender Jim Harrington said the meal provided was inedible for his client, who typically consumes cottage cheese, bread, and salad with oil and olives — and the guards knew it.

Meals become important for captives like his client, who Harrington said has been held in virtual solitary confinement for more than a decade. “Things build and build and build based upon the treatment here in Guantánamo,” he said, adding the only place Bin al Shibh’s been allowed to pray in the company of other Muslims is with the 9/11 codefendants — on the floor of the war court.

Read more Guantánamo stories from the Miami Herald

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