By Donna Miles, AFPS, FORT MEADE, Md., Oct. 19, 2012 - All five suspects charged with planning and orchestrating the 9/11 terrorist attacks skipped court today, the Muslim weekly holy day, as the first week of pre-trial hearings to continue through spring concluded at Naval Air Station Guantanamo Bay, Cuba.
The judge, Army Col. James Pohl, continued the hearing in their absence, once again taking up the issues of how open the proceedings should be and to what extent classified information can be used as the case goes to trial.
The defendants in the case are Khalid Sheik Mohammed, the self-described mastermind behind the attacks; his nephew, Ali Abdul Aziz Ali; Walid Muhammad Salih Mubarak bin Attash, charged with selecting and training some of the hijackers; and Ramzi Binalshibh and Mustafa Ahmed Adam al Hawsawi, accused with helping finance the attacks.
They are charged with terrorism, conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft. If found guilty, they could receive the death penalty.
The commission devoted the first five days of pretrial hearings dealing with administrative and legal issues before the case goes to trial sometime next year.
The prosecution and defense teams spent the bulk of the week exchanging views on how to provide the accused a fair trial without compromising classified information that the government says could jeopardize national security.
They debated for hours on issues ranging from whether the proceedings are covered by the U.S. constitution and should be televised to what information will be included in the court record and whether the defense should have to reveal what its witnesses will say to justify the government flying them to Guantanamo Bay.
Ultimately, the judged ruled on four issues over the course of the week:
-- The defendants have the right to skip court proceedings regarding their case. Based on Pohl's ruling, they would have the right to submit a waiver request each morning that court convenes, and waivers would cover only that single day. Defendants who change their minds during the day could notify the guard force and attend court if it's possible to get them to the court facility after they make their request.
-- The defendants can wear pretty much what they want to their court proceedings, including camouflage clothing that both Mohammed and bin Attash have requested. Pohl stipulated, however, that the clothes must not be legitimate U.S. military uniform items, and, if prison garb, must not be in a color that misrepresents the detainee's security status.
-- Transcripts from so-called "802 conferences," during which the judge discusses issues with attorneys, will be made public, "as practicable," Pohl ruled. "This is not a blanket rule," he said. "It is not a 100 percent firm rule in every case."
-- A confidential consultant will be assigned to Hawsawi's defense team to assess his English proficiency. His counsel, Navy Cmdr. Walter Ruiz, requested a translator to help him better defend his client.
That leaves a broad range of major issues yet to be decided when the hearings resume Dec. 3 to 7.
Ruiz told reporters after a news conference following today's proceedings that Pohl had essentially "kicked the can down the road" on the most significant issues confronting the commission. The judge "greased the skids" by entertaining motions that enable the process to move forward without addressing those related to the fundamental issue of the commission's legitimacy, Ruiz said.
Today, the defense urged the judge to open the proceedings wider than what's available through closed-circuit TV beamed to viewing areas at Fort Meade and at Fort Hamilton, N.Y.; Fort Dix, N.J.; and Fort Devens, Mass.
While not ruling on the motion, Pohl challenged the defense's argument that broadcasting the proceedings by closed-circuit TV to only limited sites jeopardizes the outcome. "Are you telling me that if we don't go on the public airways, that the accused won't get a fair trial?" he asked.
Pohl also did not rule on the prosecution's request for a protective order addressing classified information. The prosecution has asked for "presumptive classification," which essentially means that anything the defendants say is treated as classified unless it's proven not to be.
James Connell, learned counsel for Aziz Ali, told reporters following today's proceedings that he believes that presumptive classification, if granted, could become "a major issue on appeal."
Pohl also has not ruled on issues of constitutionality. The prosecution says the burden should be on the defense to prove what issues are constitutionally protected. The defense has asked that the judge address any congressional challenges one by one, as they arise during the proceedings.
Army Maj. Robert McGovern, representing the United States, said the government is ready to turn over documents once a protective order is in place. He argued, however, that the defense's request is overly broad, warning of "fishing expeditions" with no need to prove the relevance of what the defense requests.
Cheryl Bormann, learned counsel for bin Attash, emphasized the importance of open proceedings as she addressed the court for the first time this week in western-style clothing rather than a traditional Muslim hijab.
"This is one of the most important cases to be handled ... in a very, very long time," Bormann told Pohl. "This is a situation where transparency is paramount," she said, saying that other closed commission proceedings she has observed appear to be "not transparent, not fair and not just."
Army Brig. Gen. Mark S. Martins, the chief prosecutor, recognized that some people are impatient with the pace of the proceedings. But a deliberate approach is needed so that justice is served, he said. "We are a government of the rule of law," he told reporters.
No one is more interested in seeing the case move forward than the victims' families, some who attended this week's sessions, Martins said. "Our hearts go out to the victims and family members," he told reporters, calling their strength an inspiration.
Bormann told reporters she empathizes with the victims' families.
"I feel for them, very much so," she said. However, she defended accommodations the court is making to respect the defendants' religious beliefs, saying they are the same kind of accommodations the United States makes for all its own citizens.