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'Defective deferral' to be argued in Gitmo court Tuesday

GUANTANAMO BAY NAVY BASE, Cuba — Lawyers in the Sept. 11 conspiracy trial met Monday with the judge in closed session for four hours and postponed until next year consideration of some of the hot-button issues before the Guantanamo war court in favor of a weeklong hearing tackling dry legal issues surrounding the death-penalty case.

Both the public and the five alleged 9/11 plotters will be allowed in court Tuesday as lawyers argue a particularly military concept of a “defective referral.” Defense lawyers say the Pentagon rushed the case to arraignment on May 5, 2012, before the defense teams were adequately resourced, and an attorney-client relationship was secure.

Meantime, lawyers for the men accused of plotting the Sept. 11 terrorist attacks were studying a judge’s sealed ruling that appeared to let the five defendants talk about what the CIA did to them in years of secret custody before they got to Guantanamo.

According to the ruling, said attorney James Connell, defense attorneys such as himself are forbidden from divulging classified CIA information, but the judge, Army Col. James L. Pohl, said the Sept. 11 defendants’ “thoughts and memories” are their own.

“This ruling is an important step forward in accountability for torture,” said Connell. “The real question is whether the prison will allow the prisoners to communicate with foreign government officials, medical care providers, human rights authorities and media.”

A Pentagon spokesman had no immediate comment on whether the ruling meant, for example, that the alleged mastermind, Khalid Sheik Mohammed, would be able to describe in open court his 183 rounds of waterboarding, who he believed interrogated him or in what country — information that so far had been considered subject to censorship as state secrets.

Similarly, the military would not say if Pohl’s ruling had implications for the clandestine world of the prison where former CIA captives are kept here, Camp 7, a site so secret its location is classified. All Camp 7 prisoners’ communications are censored by the military.

Connell, the Pentagon-paid lawyer for Ammar al-Baluchi, accused of helping some of the Sept. 11 hijackers with their travel and finances, spoke after the four-hour closed hearing that excluded the public and the alleged terrorists so lawyers and Pohl could work out what part of this week’s proceedings could be held in public.

One legal motion up for consideration had been a defense request that the judge impose a protective order on any remnants of the CIA’s secret overseas prison network that President Barack Obama ordered shut down. It was in one of those so-called “black sites” that U.S. agents waterboarded Mohammed 183 times.

Pohl also has listed for discussion a sealed prosecution motion that’s so secret it has no name on the Pentagon’s docket, which boasts “fairness, transparency, justice.” Lawyers already began arguing that secret motion in a short closed hearing this summer.

Civilian and military lawyers for the accused terrorists have been focusing on surfacing information about what the CIA did to the men after their capture in Pakistan in 2002 and 2003. They argue that because the CIA disappeared their clients, questioned them with now forbidden “enhanced interrogation techniques” and denied them access to lawyers the case should go forward as a non-capital trial.

No date has been set for the trial itself, although the chief prosecutor has proposed it start in January 2015.

Prosecutors, who don’t concede that the CIA tortured the accused before they got to Guantanamo in 2006, argue what the CIA did to them would be part of the sentencing phase that decides on whether to execute them if they are convicted.

Defense lawyers say their detour through the Bush-era Rendition, Detention and Interrogation program implicates even this pretrial phase.

Pohl, who presided at the courts-martial of U.S. soldiers who abused captives at Abu Ghraib, stopped the Bush administration from razing the prison in Iraq. Defense lawyers want a similar order on what’s left of the secret CIA prison network, which reportedly included lockups in Thailand, Poland and Afghanistan.

But the White House has never declassified the Bush-era CIA program. That means, for example, that war court rules prohibit the lawyers or accused from disclosing the locations of the secret CIA interrogation sites in open court.

So, under a structure that borrows from both civilian and military practice, the lawyers and judge were to discuss how to make legal arguments that don’t divulge classified information — so that the accused as well as the public can listen in.

Connell said Monday it was unclear whether any more hearings would be closed this week, but if the judge heard arguments or a witness without the public or accused present that would happen on Friday. He did not elaborate.

At this stage, the hearings are tackling what charges, procedures and law will govern the death-penalty tribunal.

Issues include how the lawyers can communicate with the alleged terrorists who are confined to a secret prison at the U.S. Navy base in southeast Cuba and still preserve the attorney-client privilege; whether the judge will order the U.S. government to let defense lawyers question certain witnesses; what kind of resources the defense will get and what substitutions for actual evidence the prosecutors may present at trial.

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