GUANTÁNAMO BAY NAVY BASE, Cuba — Four out of five of the alleged Sept. 11 conspirators returned to court today for a hearing on whether or how they can use the Convention Against Torture to file complaints in foreign courts about their CIA treatment.
At issue is the 9/11 defense attorneys’ challenge of a military commissions protective order that, the defenders say, oblige the attorneys to make sure the prisoners never tell foreign courts or human rights groups their memories of what the CIA did to them in secret overseas prisons between 2002 and 2006.
The lead defendant, Khalid Sheik Mohammed, 48, was waterboarded 183 times. Less is known about what agents did to the other four defendants, and the lawyers argue that the U.S. government is violating the Convention Against Torture by defining the captives’ accounts of their treatment as classified.
Attorney James Connell argued for the right of his client, Ammar al-Baluchi, to send a private account of his CIA treatment to the U.N. Special Rapporteur on Torture in open court on Wednesday morning following a closed hearing Tuesday on whether Connell should be allowed to talk about in open court.
Connell attached a secret annex to his legal motion that included some form of al-Baluchi’s prison camp medical records. The judge, Army Col. James Pohl, announced Wednesday that no national security secrets were at risk and allowed Connell to challenge U.S. classification rules in open court.
“What is clear is that there is a right to complain,” said Connell. He echoed other defense lawyers’ arguments that, if Pohl can’t authorize an outside torture complaint, he should dismiss the charges against the five men accused of hatching the hijacking plot that killed nearly 3,000 people in New York, the Pentagon and a Pennsylvania field on Sept. 11, 2001.
Al-Baluchi, 36, however, wasn’t there. He voluntarily skipped the hearing without explanation. Al-Baluchi is Mohammed’s nephew, and Connell argues that perhaps the best public information of what happened to his client might be contained in the docudrama “ Zero Dark Thirty.’’
Prosecutors don’t concede anyone was tortured and argue that because the CIA program that interrogated them overseas is classified, information about the program can only be heard in closed session of the Guantánamo war court.
The 9/11 case is “not about torture,” case prosecutor Clay Trivett told the judge Tuesday. “It’s about the summary execution of 2,976 people.”
Earlier Wednesday, the Navy defense lawyer for another man charged in the case sought and failed to stop the proceedings. Navy Lt. Cmdr Kevin Bogucki told the judge that defendant Ramzi bin al-Shibh had not gotten a good night’s sleep because of disturbances at his secret prison overnight.
Bin al-Shibh, 41, has complained for months that the military has systematically caused his isolation cell to vibrate and blasted noise inside at night. Over the summer, Pohl issued an order to the military to cut it out, if it was happening.
Bogucki asked the judge additionally for a court order to inspect the control room at Camp 7, Guantanamo’s secret prison for CIA captives, and to interview some of the guards. The judge didn’t issue the order and instead told the lawyer to file a motion.
Eight Sept. 11 victims are at Guantánamo this week to watch the proceedings, under escort by a Pentagon employee in a New York Fire Department uniform. None so far has agreed to tell his or her story, and so far the Pentagon has withheld their identities.