Defense lawyers could prevent executions if allowed to present evidence of torture.
As pre-trial hearings continue for the Guantanamo Bay detainees charged with the 9/11 attacks, lawyers for the defendants argue that their clients’ rights are being infringed due to the fact that war-court restrictions prevent the disclosure of torture and abuse undertaken during clandestine government interrogations. Defense counsel argued that the death penalty should be eliminated as a possible sentence in light of alleged torture the accused received while held in the United States, prior to their transfer to Guantanamo Bay. As the nature of their American detention is classified, the detainees are denied the right to file complaint under the United Nations Convention Against Torture.
Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Ammar al-Baluchi, Walid Bin Attash and Mustafa al-Hawsawi are currently being charged in a military commission trial for terrorism, providing material support for terrorism, conspiracy, attacking civilians and more in 2,973 counts of murder for the September 11, 2001 attacks.
“You have the power to dismiss the death penalty or dismiss these charges because of the obstacles we face in this case,” said Navy Cmdr. Walter Ruiz, a lawyer for al-Hawsawi, before Army Col. James Pohl, the presiding judge. The U.N. Convention against Torture “gives certain rights” to the accused, Ruiz explained, but “those rights do not exist, certainly not in front of this commission.”
“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. Mohammed, according to his defense, was waterboarded — a process subjecting him to the simulation of drowning by having water poured over him while blindfolded and strapped down — 183 times. Hawsawi and Mohammed were captured in Pakistan March 1, 2003 and were turned over to the Central Intelligence Agency (CIA), per the federal indictment. The CIA held them in the Salt Pit, an Afghani CIA “black site” used for extrajudicial detentions and interrogations.
Al-Hawsawi was transferred to Guantanamo Bay for permanent detention on September 24, 2003, but — fearing that the U.S. Supreme Court case Rasul v. Bush might give al-Hawsawi the right to counsel — the CIA retrieved al-Hawsawi and three others on March 27, 2004 and placed them in a “black site.” Al-Hawsawi was returned to Guantanamo Bay on September 6, 2006 after the passage of the Military Commissions Act of 2006 was passed, which the administration of George W. Bush felt confident would deny the detainees habeas corpus and access to the federal court system.
The Military Commissions Act was found unconstitutional under 2008’s Boumediene v. Bush.
Prosecutors argue that the law forbids the use of coerced confessions in the death penalty tribunal and argues that mistreatment can be considered in the penalty phase of the trial, should the five be convicted. The prosecution does not admit that torture has occurred.
The case is “not about torture,” argued case prosecutor Clay Trivett. “It’s about the summary execution of 2,976 people.”
Ruiz also argued that the federal government violated al Hawsawi’s right to attorney-client privilege when Guantanamo guards seized documents from al Hawsawi’s cell clearly marked “attorney-client privilege.” Right to representation by counsel in the United States includes the right to confidential communications between a client and his attorney.
Navy Commander George Massucco, liaison for “high-value” detainees, admitted to receiving the seized documents from al Hawsawi and others, earning a rebuke from Pohl. He stated he didn’t read them after receiving the package. “I didn’t go any further,” Massucco said. “I went to Mr. Hawsawi’s cell and I gave it to him.”
“You want to prosecute these guys. You want to gag them,” said Cheryl Bormann, defense lawyer for Bin Attash, to Pohl. “But you can’t execute them. You have to have some fairness in the system.” Pohl indicated that he does not have the authority to declassify testimony. Bormann retorted that the judge’s order as it currently stands would gag the defendants, despite the confidentiality.
The trial has been proposed to start September 22, 2014, although the start date may be pushed forward.