The release of the Senate Intelligence Committee’s so-called “Torture Report” should make the death-penalty terror trials by military tribunal more transparent, the chief war crimes prosecutor said Sunday, hours before the 9/11 pretrial hearings hit another snag.
Army Brig. Gen. Mark Martins did not respond directly to a Miami Herald report a day earlier disclosing that the military judge in the Sept. 11 case had ordered the prosecution to conduct a sweeping review of secret trial filings for possible declassification of information about the brutal tactics the CIA used in its secret overseas prisons.
But the general said in a statement that the release of a 524-page executive summary of the Senate Committee’s 6,700-page study of the CIA program increases “the likelihood that more of these processes will be open to the public.”
Yet, the prospect of a trial seemed even further away. Lawyers and the judge abruptly canceled plans for an open-court hearing Monday on a conflict-of-interest question sparked by defense attorneys’ discovery of a secret, since-closed FBI investigation of the defense teams.
A Justice Department lawyer brought to argue at the court asked for a delay until February on a key issue, said defense attorney Jay Connell. Meantime, the judge and attorneys mapped out the delay in a chambers conference and avoided a sensitive issue that has stirred unrest at Guantánamo’s clandestine prison for former CIA captives — the military’s recent use of female guards to transport the accused to and from legal meetings.
Because the judge and attorneys met in a chambers conference instead of open court, the accused terrorists remained in their cells. Defense lawyers said the captives are so determined to not be touched by women — for religious reasons — they’d likely resist and find themselves tackled, shackled and forced into court by Guantánamo’s guard force.
The attorney for alleged mastermind Khalid Sheik Mohammed, David Nevin, said any touching by female guards “violates a sincerely held religious belief.”
He added that as far as he knew, Mohammed had not been forcibly removed from his cell since he arrived in 2006 from three years of CIA custody that, the Senate report showed, included 183 rounds of waterboarding, a black-site technique called “rectal rehydration” and other torture.
Martins said in his statement that the report’s release “assures the accused will be able to see and consult with defense counsel about certain information not previously available to them.”
But the defense lawyers said the alleged terrorists had been refusing meetings because of the female guard issue. They want the trial judge to issue an order barring the prison from using female guards for legal sessions — something a U.S. Marine lawyer got in another case.
Monday’s was meant to be the first hearing since the release of the Senate’s graphic report and some defense attorneys said they sent their clients, the alleged Sept. 11 plotters, hard copies of the report soon after its release Tuesday. Military attorneys systematically stamped each of the 524 pages as legitimate legal material and sent it into Guantánamo’s most clandestine prison, Camp 7.
Attorney Jim Harrington, defending alleged 9/11 plot deputy Ramzi bin al Shibh, 42, said the men risked “re-traumatization” by seeing written accounts of their brutal treatment.
Martins, meantime, declined to offer a proposed timetable toward trial. “I am well aware of impatience and frustration,” he said Sunday night. “We will do it for however long this takes.”
Earlier he said in his statement that “far from disrupting military commissions, as some observers have speculated,” the disclosures in the Senate report “alters none of the rules of law or due process that will continue to govern each and every trial to its conclusion.”
One issue is how much of the once-secret CIA interrogation and detention program can now be discussed in open court — and which classified filings can be unsealed — and whether the release of the report can speed progress toward the trial of the alleged mastermind Mohammed, 49, and four other men. They were formally charged May 5, 2012.
Preparation for trial has been slow-moving in part because of a superstructure of secrecy built around what the CIA did to them in the years before they were brought to this base in September 2006 for eventual trial. Defense attorneys consider the study summary insufficient and want more disclosure of what the spy agency did to their clients.
Walter Ruiz, who represents Mustafa al Hawsawi, 46, a Saudi accused of helping the hijackers with their money and travel, called the summary “the sanitized tip of a 6,000-page iceberg revealing acts of unspeakable horror, depravity, dishonesty and an overall shocking breach of our core values and beliefs.”
Defense lawyers want more details of what was done to the men — and for the public to see it along with the military jury — in order to challenge case evidence. Also, if the accused terrorists are convicted, they want to use the details to argue against a death sentence.
Martins, said in his statement Sunday that only voluntary testimony will be used at trial.
He described seeing a recent West Point dining room standing ovation for some of the victims of the 9/11 attacks and their families, then reminded that the five accused Sept. 11 conspirators are presumed innocent until their trial by U.S. military officers.
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Read more about the Sept. 11 trial here.
Read the prosecutor’s full statement here.
Read a defense lawyer’s full statement here.