A U.S. Marine attorney defending alleged 9/11 mastermind Khalid Sheik Mohammed asked a military judge Friday to let lawyers photograph scars on the ankles and wrists of the man who U.S. agents waterboarded 183 times.
Marine Maj. Derek Poteet sought a court order to collect the photos as evidence on the same day that he and other Sept. 11 defense lawyers revealed they wrote President Barack Obama seeking declassification of the CIA program that snatched, interrogated and secretly locked up their clients for years in secret “black site” prisons.
Defense lawyers argue that what the CIA did to the men, from 2002-2006, should be made public at the death-penalty tribunal, which the prosecution proposed on Friday should start with selection of a military jury in January 2015.
The current classification restrictions of the so-called Rendition, Detention and Interrogation program “only facilitate further concealment of war crimes committed by agents of our government,” they wrote.
The letter was signed by nine military and four civilian lawyers, all paid by the Pentagon to defend the five men accused of orchestrating the Sept. 11, 2001 hijackings that killed nearly 3,000 people in New York, the Pentagon and Pennsylvania.
The plea to the commander in chief capped four days of pretrial hearings that focused on allegations of torture by the CIA.
And Poteet cast the photography request as a bid to collect proof of scars left on his client’s wrists and ankles.
Later, the brother of Vicki Costanzo Yancy, who was killed aboard Flight 77 at the Pentagon on 9/11, called an encounter he had with the defense lawyers “one of the most distasteful events of my life.” Richard Costanzo, who attended the hearing with his twin brother Raymond, said he couldn’t “point to the marks on my sister’s wrists because they couldn’t find her wrists.”
Victims observing the proceedings as guests of the Pentagon accused the defense lawyers of focusing on alleged torture as a delaying tactic.
“They’ve lost sight of the true goal here,” said Costanzo. “We’re not here to change America. We’re here to get justice.”
At issue in the photography motion was not if, but who would take the photos “to preserve evidence in this case.”
Prosecutor Jeffrey Groharing argued the photos should be taken by Combat Camera, an elite military photography unit whose website boasts that soldiers take photos for the Secretary of Defense for use in both “public affairs” and “information warfare.”
Poteet argued that team members should make the photos and subject them to a security review, while his client, Mohammed, listened nearby attired as a self-styled warrior for Islam. He wore a green camouflage jacket draped with a white headscarf atop a white gown, his beard dyed rusty red.
Cheryl Bormann, defense lawyer for co-defendant Walid bin Attash, similarly asked to have a team member photograph something on her client, a Yemeni man whose lawyers says they indicate he was tortured in CIA custody. Bin Attash, who lost a leg before Sept. 11 in a battle in Afghanistan, was sporting a camouflage jacket in desert colors not the Woodland pattern favored by Mohammed.
Prosecutors don’t concede the U.S. tortured the men, who got to Guantánamo in 2006, three and four years after they were captured in Pakistan and held in different secret sites around the world out of reach of the International Committee of the Red Cross. Instead, Groharing argued that given a Defense Department restriction on the dissemination of detainee photos, the special Pentagon unit should photograph and maintain them.
The 9/11 case judge, Army Col. James Pohl, did not rule on the request. But it emerged in court arguments that a day earlier the judge allowed the military and civilian defense lawyers to pose for Combat Camera with their clients.
Defense lawyers said they took the group photos to take abroad and vouch for the attorney-client relationship as they do investigations and preparations for the death-penalty trials of the five men accused of hatching the 9/11 plot or training, funding and making travel arrangements for the 19 terrorist hijackers.
In other developments Friday:
• Defense lawyers asked the judge to order the U.S. government to return non-networked laptops to the five alleged 9/11 conspirators that they had used in trial preparation during the Bush administration. They argued it was privileged defense work product. Case prosecutor Bob Swann said the lawyers could get the laptops but not Mohammed and his alleged accomplices, who have been issued e-readers.
• Cmdr Walter Ruiz, lawyer for alleged conspirator Mustafa al Hawsawi, who fasts, asked Pohl to order the prison staff to notify Hawsawi’s legal team if the prison intends to force-feed his client. Ruiz noted some world medical groups oppose Guantánamo’s practice of forced-feeding, and asked to be given time to meet with his client if such a procedure is being considered.
Hawsawi has never been classified as a hunger striker at Guantánamo, which on Friday reported that 14 prisoners were still on the protest and met the Navy medical team’s criteria for forced-feedings if they didn’t voluntarily drink a dose of Ensure.