Defense attorneys questioned a prison camp lawyer Thursday about guards seizing sensitive legal papers in the Sept. 11 case, the latest chapter in a continuing struggle over the prison’s handling of privileged legal documents in the death-penalty tribunal.
Cmdr. Walter Ruiz, defense attorney for accused 9/11 accomplice Mustafa Hawsawi, told the court that guards seized a list laying out trial strategy. He showed it to the court: It was properly marked as privileged attorney-client communications.
“Your issue is: They violated the attorney client-privilege and you want to know how broad that breach was?” asked Judge James Pohl.
The focus of the hearing was a February search of the cells of the five men accused of orchestrating the terrorist attacks that killed nearly 3,000 people on Sept. 11, 2001. The men were in court and returned to their cells from a pretrial hearing to find legal documents missing — as well as a captive’s photo of Mecca and a book written by an FBI agent.
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Prosecutors and the prison lawyer, Navy Cmdr. George Massucco, argue that such searches are routine at the secretive Camp 7 and designed to make sure that none of the captives have dangerous or incendiary material. It’s “for the safety of the guard force,” Massucco said.
After one hearing, an envelope containing zip-ties meant for Massucco to bind up prisoners’ loose pages, book-style, was mistakenly put in the legal bin of the alleged 9/11 mastermind, Khalid Sheik Mohammed, at the war court.
Guards discovered it in a routine search of Mohammed’s materials as he was leaving court, Massucco told case prosecutor Jeffrey Groharing.
Separately, soldiers functioning as prison camp librarians flipped through some pages Mohammed wanted bound up — and discovered literature that included a “disturbing” photo of U.S. flag-draped coffins with the burning World Trade Center in the background. Another page had an al-Qaida logo.
The problem was not necessarily the material, Massucco told the prosecutor, because it might be relevant to trial preparation. It wasn’t properly marked and was seized for that reason. Also seized recently were nearly 100 pages of a Twitter feed and newspaper articles that hadn’t been properly vetted.
In an earlier, better-known episode, the system worked: Ruiz submitted to the prison for consideration a copy of the al-Qaida magazine Inspire that included an article titled “How to Build a Bomb in the Kitchen of Your Mom.” The U.S. military screened it out. It never reached the prison or a prisoner, but prosecutors and prison staff invoke it to justify a series of new aggressive, screening policies.
Ruiz’s questioning of Massucco, however, focused on a different episode — how a list of proposed legal motions mapping out defense strategy was seized by guards, despite proper markings.
Massucco said he didn’t know.
Also, Ruiz asked, who tore pages out of a legal pad with trial strategy that Hawsawi had in his cell while he and the other accused Sept. 11 conspirators were in court?
Massucco said he didn’t know.
Some pages went missing for weeks, Massucco said, and were later found by a person identified as “the evidence custodian” at Camp 7. Ruiz asked the judge to call that person as a witness. The judge did not rule.
The tug-of-war over the defendant’s privileged materials came on a day when Hawsawi, 45, voluntarily skipped the hearing and remained behind in his cell.
Hawsawi, accused of helping send funds to the 9/11 hijackers, suffers neck pain and headaches and finds the early wake-up and transport to the court painful, according to Ruiz. Hawsawi sometimes wears a neck brace.