Prosecutors in the Guantánamo war crimes tribunal are pushing the judge to set a September 2014 trial date in the 9/11 case, a decision that could hinge on how deeply the defense is allowed to delve into the defendants' treatment in secret CIA prisons.
A U.S. military judge, Army Col. James Pohl, will hear arguments on the issue in a weeklong pretrial hearing that begins on Monday at the Guantánamo Bay U.S. Navy Base in Cuba.
Prosecutors want to speed up the hearing schedule and start the death penalty trial next fall for the alleged mastermind of the 9/11 plot, Khalid Sheikh Mohammed, and four alleged co-conspirators.
They were arraigned on terrorism, murder and other charges in May 2012, more than a decade after al Qaeda hijackers smashed four commercial jetliners into the World Trade Center in New York, the Pentagon in the Washington area and a field in Pennsylvania, killing 2,976 people.
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The court has since scheduled weeklong pretrial hearings about every six weeks, mostly to hear defense challenges.
Some hearings were canceled because of computer problems and tropical storms at the remote Caribbean base. Others veered away from the docket to address whether military and intelligence agents were spying on supposedly confidential attorney-client discussions, an issue that is still unresolved.
Prosecutors want the judge to set firm deadlines for new filings, hold month-long hearings to work through a backlog of outstanding motions and be ready to start picking a jury on Sept. 22, 2014.
Continuing at the current pace "will result in litigation that is unnecessarily prolonged and does not serve the interests of justice," prosecutors wrote in court filings.
They said they had already given the defense lawyers most of their evidence, including 170,000 pages of unclassified information. The secret evidence will follow once all five defense teams sign "memorandums of understanding" on how to safeguard it, they said.
Most of the defense lawyers are holding off on that until the judge clarifies issues such as whether they must treat information as classified when it was not produced by the government and is publicly available through open sources. The judge will take that up at this week's hearing as well.
Defense lawyers said 80 percent of the evidence they have received so far consists of photos of the destruction from the 9/11 attacks and business records related to the hijackers -- matters that are not in dispute.
Defense attorney James Connell, who did sign the memorandum of understanding, said prosecutors have not turned over any of the evidence that will be most in contention, which relates to the years the defendants spent in CIA custody.
"The CIA and (Defense Department) have revealed far more information about what happened during that time to the makers of Zero Dark Thirty than they've revealed to us," Connell said.
The CIA cooperated with the makers of the Hollywood movie about the hunt for Osama bin Laden, and has acknowledged one character was "modeled after" Connell's client, Ammar al Baluchi, an alleged al Qaeda money mover also known as Ali Abdul Aziz Ali. He is Khalid Sheik Mohammed's nephew.
The movie showed interrogators stringing up the Ammar character with a rope, forcing him to wear a dog collar, waterboarding him and stuffing him into a coffin-like box. The CIA has not acknowledged using those techniques on Baluchi but has admitted using them on other prisoners.
Defense attorneys say they cannot adequately prepare for trial unless they know what happened to the defendants between their capture in 2002 and 2003, and their transfer to Guantánamo in 2006. All the defendants have said they were tortured in CIA prisons during that time.
Defense lawyers say once they get the CIA information, it will take a couple more years to investigate it to ensure it is not tainted by torture. If it is, it cannot be used in court.
Prosecutors say they will turn over the information that is necessary and relevant but argue in a court briefing that the defense is "not entitled to every piece of paper in the possession of the United States government that directly or indirectly mentions or pertains to the accused."