FORT MEADE, Md. - Defense lawyers for five alleged Sept. 11 conspirators asked a judge Tuesday to allow them to spend 48 hours every six months deep inside the terrorist prison at the U.S. Naval Base on Guantanamo Bay, Cuba, in order to document the conditions there to persuade a jury to reject the death penalty should their clients be convicted of capital murder.
The highly unusual request, on the second day of weeklong pretrial hearings at the base, was challenged by military and government prosecutors who said they would permit just "one single visit," control whom the lawyers talk to and what they see, and be in charge of the defense lawyers' written notes, sketches and photographs of the prison.
Judge James L. Pohl, an Army colonel, said he will rule later. "It's not my job to run a confinement facility," he said. "It is my job to run a trial."
The issue of harsh jail conditions at Guantanamo is one of several that defense lawyers hope to use to win sympathy with jurors and persuade them not to sentence the defendants to death if they are convicted. Other such issues include conditions at secret "black site" locations overseas and the alleged use of torture following the 2001 attacks.
One by one, the defense lawyers asked to be allowed inside highly secure Camp 7 for high-value detainees and other areas where their clients have been housed, and to bring with them a mediation expert and a documentarian to record what they see and hear.
Navy Lt. Cmdr. Kevin Bogucki, representing Ramzi Binalshib, the alleged pilot cell manager, compared the government's limited counterproposal to a "jungle cruise in Disneyland."
"To be essentially shuttled through on a guided tour is entirely unlikely to reveal any meaningful information. It would be for the purpose of show only," he said, adding, "There are some things at this prison that were not meant to be made apparent."
David Nevin, a civilian lawyer for alleged Sept. 11 mastermind Khalid Sheikh Mohammed, said that between his arrest in Pakistan in 2003 and transfer to Guantanamo Bay in 2006, "he was tortured and the torture that was inflicted on him bears on many things in this case, including his behavior and his actions in open court, and also his reaction to his current conditions of confinement."
So far, Nevin said, he has met with Mohammed only in a controlled setting where the defendant is shackled to the floor.
Army Maj. Robert McGovern, a military prosecutor, said the government was "being incredibly reasonable by agreeing to access to the site." But, he said, "there is no precedent for a 48-hour overnight visit, and a recurring visit."
He said they should not be permitted to speak to prison staff other than their escorts, other inmates or their own clients. He said it could jeopardize "the safety and security of the situation."
"We don't think it's appropriate," McGovern said, "for them to just walk around the confinement facility, tap people on the shoulder and ask to speak to them."
McGovern said the attorneys' notes, photos and sketches should be maintained by the government to conduct a security review for classified material.
The other defendants are Walid bin Attash, an alleged al-Qaida training camp steward, and Ammar al Baluchi, a.k.a. Ali Abdul Aziz Ali, and Mustafa Ahmed Hawsawi, both alleged al-Qaida financiers. None of the five chose to attend the court proceedings Tuesday. All have pleaded not guilty.
Baluchi's father died last fall and his lawyer, Air Force Lt. Col. Sterling Thomas, asked the judge to permit Baluchi a "humanitarian one-time audiovisual" call with his family.
"I emphasize with the loss of any life and the accused's father," Pohl said, but questioned whether he had the authority to order the call. He said he would rule later.
The hearings are being simulcast at Fort Meade.