An Army judge ordered accused Sept. 11 mastermind Khalid Sheik Mohammed and his co-defendants cleared from the war court Monday and held the first secret hearing of the 9/11 capital tribunal on a government motion that’s so secret the public cannot know its name.
Army Col. James L. Pohl, the judge, ruled an open hearing would present a risk to national security, without specifying how. He rejected a defense request to include the men who, if convicted, could be executed for conspiring in the worst attack on U.S. soil, including 2,976 counts of murder.
They are Mohammed, 48; two alleged lieutenants in the plot, Walid bin Attash, 35, and Ramzi bin al Shibh, 41, as well as Mohammed’s nephew Ammar al Baluchi, 35, and Mustafa al Hawsawi, 45, accused of helping move money and arrange travel for some of the 19 men who hijacked the aircraft on Sept. 11, 2001.
At issue was a motion labeled AE52 and listed as “government consolidated notice regarding ex parte, in camera filing and motion for finding” — in short a secret request from the government for a secret ruling from the judge. The hearing lasted 36 minutes, said Army Lt. Col. Todd Breasseale, a Pentagon spokesman who was unable to provide any specifics besides the motion’s name.
James Connell III, Baluchi’s Pentagon-paid defense lawyer, argued without specifics that the contents of the motion weren’t classified. Even if the public were excluded, he said, the accused should be allowed to hear the arguments because they’re held incommunicado, under lockdown at a secret prison on this base with no means to tell anyone but their lawyers what was said.
Prosecutor Joanna Baltes said the U.S. government chose to classify the motion and did not have to justify to the defense lawyers why they had done so. The judge agreed and rejected a request by Connell that at least a portion of the hearing be held in open court.
Pohl similarly closed the court for a secret no-name motion in Guantánamo’s other death-penalty trial, in which Saudi captive Abd al Rahim al Nashiri is accused of orchestrating al-Qaida’s October 2000 suicide bombing of the USS Cole warship of Yemen. Seventeen U.S. service members died. The prosecution eventually created a partially redacted transcript.
“Despite the government’s propaganda, this process is not transparent,” said Army Maj. Jason Wright, Mohammed’s military defense attorney. “It’s seeking to execute men with secret evidence away from the public view.”
As a principle, he said, the man who bragged to a military board in 2007 that he was responsible for the Sept. 11 terror attacks “from A to Z” is of the position that he “believes that he should be present when the government is seeking to use any and all evidence it can to execute him.”
Monday marked the opening of the fifth round of pretrial hearings ahead of a trial the Pentagon prosecutor proposes to start Sept. 22, 2014.
In other developments Monday:
• Detainee health issues dominated. Hawsawi who wore a neck brace to court, said through his lawyer that he was suffering headaches from an unspecified condition and got permission to skip the afternoon session. Bin Attash, a one-legged defendant accused of training some of the hijackers, was suffering from diarrhea as a result of treatment for an infection called Helicobacter pylori. An Army doctor who specializes in family medicine testified anonymously that he was trying to locate a gastroenterologist to treat him.
• Two agents defended their decision to interrogate Hawsawi, a native Saudi whose first language is Arabic, without benefit of an Arabic-language translator. They said he was advised his participation was voluntary before the first round of interrogations Jan. 11, 2007, held in English, about four months after he was brought to this base for prosecution from years in secret CIA prisons.
The agents, one with a Defense Department investigation team, another with the FBI, were part of a “clean team,” investigators sent to Guantánamo Bay to question the men now facing trial and build a new record after CIA interrogations that included the water boarding of Mohammed and other brutal treatment that make their earlier confessions inadmissible at trial.
• The prison library was wrong to reject a 9/11 victim’s gift of a copy of Stephen King’s masterpiece It, and will add the book to the library’s 19,000-volume collection, a military spokesman said. The epic 1986 horror novel about a monster that lurks in some Maine sewers was the only one refused from a donation of about 70 brand-new books by a man whose father was killed at the World Trade Center.
Verbatim | Why secret session?
Army Col. James L. Pohl, the judge: “I make a specific finding that that closure is necessary to protect information, the disclosure of which could reasonably be expected to damage national security, including intelligence or law enforcement sources, methods or activities. It will be a relatively short session.”
Prosecutor Joanna Baltes, classification expert: “The United States Government has said it's classified. We provided the commission with a declaration explaining the harm to national security and why something was classified. That is not something that needs to be shared to defense counsel, and absent authority to the contrary we would decline to do so.”