The 9/11 trial judge abruptly recessed the first hearing in the case since August on Monday after some of the alleged Sept. 11 plotters said they recognized a war court linguist as a former secret CIA prison worker.
Alleged plot deputy Ramzi bin al Shibh, 42, made the revelation just moments into the hearing by informing the judge he had a problem with his courtroom translator. The interpreter, Bin al Shibh claimed, worked for the CIA during his 2002 through 2006 detention at a so-called “Black Site.”
“The problem is I cannot trust him because he was working at the black site with the CIA, and we know him from there,” he said.
This week’s is the first hearing for the five men accused of conspiring in the Sept. 11, 2001 attacks — that killed nearly 3,000 people in New York, the Pentagon and Pennsylvania — since the public release of portions of a sweeping Senate Intelligence Committee study of the agency’s secret prisons known as “The Torture Report.”
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The report gives graphic details that the U.S. government had hidden in these pretrial hearings — sexual humiliation, waterboarding and rectal rehydration. The sickliest looking of the accused conspirators, Mustafa al Hawsawi, 46, once again sat on a pillow at court.
It also says that the spy agency maintained two secret prisons at Guantánamo in 2003 and 2004 and that Bin al Shibh was held in one.
Cheryl Bormann, attorney for another alleged plotter, Walid bin Attash, 36, told the judge, Army Col. James L. Pohl, that her client “was visibly shaken” at recognizing a man in the maximum-security war court.
“My client relayed to me this morning that there is somebody in this courtroom who was participating in his illegal torture,” she said.
Bormann said it was either “the biggest coincidence ever” or “part of the pattern of the infiltration of defense teams.” Monday’s hearing was supposed to start with a presentation by a Justice Department lawyer, Fernando Campoamor-Sanchez, on FBI agents secretly questioning members of the Bin al Shibh defense team. The Sept. 11 legal defense teams have called the FBI’s action spying on privileged attorney-client conversations.
Instead the issue became, apparently, a stony-faced translator who was sitting alongside Bin al Shibh in court when the hearing started. Lawyers for the alleged mastermind, Khalid Sheik Mohammed, 49, and his nephew, Ammar al Baluchi, 37, said they learned about the recognition just as court began.
The judge ordered a quick recess, excused Campoamor-Sanchez and summoned the chief prosecutor, Army Brig. Gen. Mark Martins, for questioning.
Court resumed briefly with the linguist missing. Martins sought, and got, a continuing recess until 9 a.m. Wednesday, to look into the issue and file a written pleading with the court. Pleadings are sealed for at least 15 days for intelligence agencies’ scrub of secret information.
Mohammed’s attorney, David Nevin, asked Pohl to order the suspected CIA worker to not leave this remote base in southeast Cuba and to submit to defense questioning.
Pohl said the man could decide whether or not to talk to the defense teams.
War court translators are provided by one of two Defense Department contractors paid by the Pentagon unit that runs the war court, called the Office of the Convening Authority for Military Commissions. It’s run by retired Marine Maj. Gen. Vaughn Ary, a former military lawyer. The contractors are Leidos and All World.
Ary’s office provides a list of qualified translators to the Office of Military Commissions Defense unit, and, in the capital cases, each one gets a dedicated translator assigned to the team. Teams can object to the choice, and have done so in the past, as unsuitable, according to earlier war court sessions.
The war court’s Chief Defense Counsel, Air Force Col. Karen Mayberry, said after the court session Monday that the translator sitting with Bin al Shibh in court was not permanently assigned to his team, or the 9/11 case.
The Bin al Shibh team had lost its translator after an FBI investigation secretly questioned Sept. 11 defense team members. Monday’s translator, the one that Bin al Shibh said he recognized from a CIA prison, had worked for years on war court defense teams, but none with the Sept. 11 death-penalty case, according to Mayberry.
Monday’s translator was filling in for this session because, although the Bin al Shibh team had chosen a new team translator, the new permanent translator had not yet gotten a security clearance, which can be a lengthy process.
“We don’t have anything to do with hiring,” Mayberry said.
Bin al Shibh and the other four men are accused of helping to orchestrate, train, and arrange travel for the 19 men who hijacked four U.S. passenger aircraft on Sept. 11, 2001. The prosecutor is seeking their execution, if they are convicted. The CIA held and interrogated them for three to four years in secret overseas prisons before they were brought to Guantánamo in September 2006.
But even once they got here, they continued to be in CIA custody, according to the Senate report. Jay Connell, attorney for Baluchi, 37, said Sunday it is still not known when the agency relinquished control of the men, who are held in a secret prison called Camp 7.
The Sept. 11 prosecution has not yet completed a review of the intelligence agencies’ classification guide to update the record with the Senate report’s revelations, meaning some aspects of it may still be censored at the war court.
A court security officer, who sits to the right of the judge, has a button that mutes sound from the courtroom to the public. He did not, however, hit it once during Monday morning’s brief session that mentioned the CIA and torture.
Monday’s hearing was supposed to be the start of up to 12 consecutive days of court sessions in the case. It was the first hearing that brought the accused terrorists to court, and family members of Sept. 11 victims to the base, since August.
Victim family members who arrived Saturday to watch the proceedings reacted with a range of shock, frustration and disappointment.
“I pray that there’ll be an end in sight,” said Julie Boryczewski, whose brother Martin, 29, a Cantor Fitzgerald trader, was killed at the World Trade Center. The trial, she said, would set “a precedent for the rest of the world and this really strange, evil population,” an apparent reference to al-Qaida. “We know they’re watching.”
She expressed surprise at seeing the alleged plotters in court, if briefly, during the 26-minute session. She had imagined they’d look like “big monsters,” she said. “But there’s nothing to them. My 96-year-old Polish grandmother could kick their ass, could run circles around them.” She survived the Dachau concentration camp in World War II, Boryczewski said.
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