Guantánamo defense attorneys want to accuse U.S. of torture — but can’t

Defense lawyers made clear Tuesday that they want to pursue international torture claims against the U.S. government to stave off execution of the five men accused of conspiring in the Sept. 11 terrorist attacks — and argued that war-court restrictions block that avenue of defense.

The Pentagon-paid defenders argued to Judge James Pohl, an Army colonel, that a government protective order governing trial preparation not only hamstrings their ability to file suit abroad under the U.N. Convention Against Torture but also gags the men from telling other courts or governments about their secret CIA interrogations.

The alleged mastermind, Khalid Sheik Mohammed, sat emotionless in his court-approved camouflage jacket and self-styled turban as his defense attorney reminded the judge that the man was waterboarded 183 times and is currently forbidden to work with human rights groups to file a torture claim.

“You cannot use state secrets to classify the observations and experiences of someone who was exposed to torture,” said Army Maj. Jason Wright, Mohammed’s defense attorney, arguing that the U.S. government was using a classification regime to hide what the CIA did to the men in secret overseas prisons, out of reach of U.S. courts and the International Red Cross, from 2002 until 2006.

Accused in the case are Mohammed, 48, and his nephew Ammar al Baluchi, 36, both Pakistanis, alleged plot lieutenants Walid Bin Attash, 35, and Ramzi bin al Shibh, 41, both Yemeni, and Saudi Mustafa al Hawsawi, 45, for allegedly organizing, training and funding the 19 Sept. 11 hijackers.

Prosecutors don’t concede anyone was tortured. They do say that the law forbids them from using coerced confessions at the death-penalty tribunal. They argue any mistreatment might be considered once the five accused are convicted and a military jury weighs whether to have them executed.

The case is “not about torture,” argued case prosecutor Clay Trivett. “It’s about the summary execution of 2,976 people.”

The chief prosecutor, Army Brig Gen. Mark Martins has proposed to start the trial on Sept. 22, although Monday he said they’ll likely push that date forward.

Meantime, defense lawyers argued Tuesday that Pohl’s order prohibits the attorneys from helping their clients bring Convention Against Torture claims overseas as a way of forging a defense strategy. The order also requires that defense lawyers make sure the five accused terrorists don’t tell their story to their own governments or foreign human rights investigators that might pursue torture claims.

Hawsawi’s attorney, Navy Cmdr Walter Ruiz, said the rules governing his defense are so severe he can’t even answer a reporter’s question of whether he believes his client was tortured.

Lawyers for the other four men say they were definitely tortured, and Ruiz told the judge that he should either dismiss the case or make it a non-capital trial if the rules prohibit him from helping his client pursue a violation of the Convention Against Torture claim.

“You want to prosecute these guys. You want to gag them,” said Cheryl Bormann, defense lawyer for Bin Attash. “But you can’t execute them. You have to have some fairness in the system.”

Throughout the morning’s arguments, Pohl repeatedly noted that he doesn’t have the authority to declassify information, just issue an order protecting it. To which Bormann retorted that even if President Barack Obama declassified trial information, the judge’s order as written would continue to gag them until he got around to amending it.

For this week’s hearings, the Pentagon brought to Guantánamo eight people described as family members or direct victims of the attacks of Sept. 11, 2001 that killed 2,976 people at New York’s World Trade Center, the Pentagon and a Pennsylvania field. They were accompanied in court by a Pentagon paid escort wearing a New York Fire Department uniform.

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