Prison evidence at issue in 9-11 trial

Defense lawyers for the five accused 9-11 conspirators petitioned a US military judge at Guantánamo Bay on Jan. 28 to preserve the prisons where the defendants were held as evidence. The defendants claim that they were tortured during their time held in secret CIA prisons. This is one of the many issues that are set to be litigated when pretrial hearings begin Monday at the war crimes tribunal taking place at the Guantanamo Bay US Naval Base in Cuba. Khalid Shaikh Mohammed, accused of planning the 9-11 attacks, is among those set to stand trial. Lawyers for the defendants have requested documents from the White House and Justice Department that authorized the CIA to move suspected al-Qaeda members across borders after 9-11 and keep them in secret prisons for interrogations. Defense lawyers will argue that the defendants were subjected to illegal pre-trial punishment. The prosecution maintains that it will not use any information in trial that was obtained through torture or other techniques that violate US or international law.

Last week the US Department of Defense announced that it will not withdraw charges of conspiracy against the five accused plotters of the 9-11 terrorist attacks. Earlier in January the chief US military judge at Guantanamo Bay denied defense motions filed in both the 9-11 military commission trial and the 2000 USS Cole bombing trial. Defense counsel for accused 9-11 conspirators filed a motion requesting that the court find that the US constitution was "presumed to apply" in the proceedings, and that the prosecution must bear the burden of proving that any particular provision did not apply. Colonel James Pohl ruled that the request presented a nonjusticiable issue because the Commission cannot rule on hypothetical legal questions that do not aver "real and substantial controversy admitting of specific relief" relating to actual historical fact. In a separate case, counsel for accused USS Cole bomber, Abd al-Rahim al-Nashiri filed a motion to dismiss alleged violations of the Military Commissions Act in August 2012 on grounds that the bombing occurred "prior to the commencement of hostilities" between the US and al-Qaeda.

From Jurist, Jan. 28. Used with permission.

  1. Obama closes office dedicated to closing Gitmo
    From the New York Times, Jan. 29:

    Office Working to Close Guantánamo Is Shuttered
    FORT MEADE, Md. — The State Department on Monday reassigned Daniel Fried, the special envoy for closing the prison at Guantánamo Bay, Cuba, and will not replace him, according to an internal personnel announcement. Mr. Fried’s office is being closed, and his former responsibilities will be “assumed” by the office of the department’s legal adviser, the notice said.

    The announcement that no senior official in President Obama’s second term will succeed Mr. Fried in working primarily on diplomatic issues pertaining to repatriating or resettling detainees appeared to signal that the administration does not currently see the closing of the prison as a realistic priority, despite repeated statements that it still intends to do so…

    Mr. Fried’s special envoy post was created in 2009, shortly after Mr. Obama took office and promised to close the prison in his first year. A career diplomat, Mr. Fried traveled the world negotiating the repatriation of some 31 low-level detainees and persuading third-party countries to resettle about 40 who were cleared for release but could not be sent home because of fears of abuse.

    But the outward flow of detainees slowed almost to a halt as Congress imposed restrictions on further transfers, leaving Mr. Fried with less to do…

    Ian Moss, a spokesman for Mr. Fried’s office, said its dismantling did not mean that the administration had given up on closing the prison. “We remain committed to closing Guantánamo, and doing so in a responsible fashion,” Mr. Moss said. “The administration continues to express its opposition to Congressional restrictions that impede our ability to implement transfers.”

    Besides barring the transfer of any detainees into the United States for prosecution or continued detention, lawmakers prohibited transferring them to other countries with troubled security conditions, like Yemen or Sudan. In the most recent defense authorization act, enacted late last year, lawmakers extended those restrictions and expanded them to cover even detainees scheduled to be repatriated under a plea deal with military prosecutors.

  2. Defense lawyers gain access to secret Gitmo detention area
    The judge presiding over the 9-11 military tribunals at Guantánamo Bay has granted defense lawyers access for the first time to Camp 7, the secret facility where detainees are housed. In an order Feb. 19 that remains classified, Army Col. James Pohl allowed lawyers for the five detainees to spend 12 hours during one visit to Camp 7. The lawyers requested 48 hours with the detainees inside the camp and to be allowed multiple visits. Although Pohl only allowed the lawyers limited access to Camp 7, James Connell, a lawyer for detainee Ali Abdul Aziz Ali said that Pohl’s decision is a positive step, as it helps lawyers gather more information about their clients.

    From Jurist, Feb. 22. Used with permission.