Feds Seek Testimony of 9/11 Victims’ Families

     GUANTANAMO BAY NAVAL BASE, Cuba (CN) – Essentially confirming fears that the start to the trial of the five men accused of plotting and facilitating the 9/11 attacks is nowhere in sight, the government Tuesday asked a military judge to allow it to take early testimony of some of the older family members of people who died in the attacks.
     The government has sought in past pleadings to allow the deposition of 10 family members of victims of the 9/11 attacks in open court, arguing that if the trial continues to be delayed, old age and health concerns could prevent them from coming to Guantanamo Bay to testify.
     Ed Ryan, trial counsel for the government, said recent deaths of two of the victims’ family members spurred the government to realize it might need to get depositions on paper faster than the trial might allow.
     “Those sad events, for us, brought home very directly that these types of passages of life are happening and in fact they can happen very quickly,” Ryan told Judge Col. James Pohl at Tuesday morning’s hearing.
     Instead of risking not having the opportunity for the family members available to give victim-impact testimony at trial, Ryan proposed bringing them to Guantanamo Bay five at a time over two weeks of hearings scheduled for October. There, in open court and before the accused attackers, the family members would deliver testimony to be saved for the start of the eventual trial.
     Many people, including defense counsel for the five alleged conspirators, have speculated the start to the trial could still be as far as a decade away. Jim Harrington, who represents Ramzi bin al Shibh, told reporters earlier this week the start date gets “farther away every day.”
     While they did not oppose the idea that the government might have to take depositions in the case, the defense teams for the accused conspirators of the 9/11 attacks told Pohl on Tuesday the step of having victims give testimony in public, where any future member of the commission’s equivalent of a jury would be able to see it, is extreme.
     “When you have to push back the ocean in order to get a fair trial, you don’t want any drops at all in there that you have to move that don’t have to be there,” David Nevin, lead counsel for alleged mastermind Khalid Shaikh Mohammad, said after the hearing. “And for a person who’s never in his life heard of depositions being public this feels like, why go there, however big or little it is by comparison to all the rest.”
     Especially in such a contentious, emotionally charged case, Pohl would have a greater obligation to ensure a fair jury than in “any case that has ever been tried in the history of American jurisprudence,” Nevin said.
     Ryan noted the future trial would likely already consist of extensive jury instructions that could help fight against potential bias. But Cheryl Bormann, lead counsel for alleged senior al-Qaida Lt. Walid bin Attash, questioned why Pohl would opt for issuing jury instructions on a potential issue of bias if he could just stop the bias from ever happening.
     “Curative instructions are given when jurors hear improper evidence,” Bormann told Pohl. “Here we have an opportunity to prevent that.”
     Ryan preemptively rebuffed these arguments while speaking in favor of taking the depositions in public and ahead of the trial. After all, in a case tied to an event most Americans can remember vividly and that has become part of the country’s “national consciousness,” finding a truly impartial jury is going to be difficult whether or not they hear victim testimony ahead of time, Ryan said.
     Especially in a military commission proceeding, where the jury is composed of military members, anyone reading or hearing the witness testimony would not be significantly more biased as a result, Ryan said.
     “The events that led to this case might have inspired their military careers and/or altered their military careers,” Ryan told Pohl at the hearing.
     Ryan even suggested the potential commission could be biased against the government as a result of the allegations and evidence of harsh torture techniques used against the detainees during their time in CIA custody after being captured.
     Ryan said the word “torture” has been used in the courtroom roughly 500 times during the pretrial proceedings in the case, compared to about 200 uses of some variation of the phrase “9/11.”
     Harrington later seemed to confirm Ryan’s point on the commission, though he made it to argue that the introduction of public evidence could further taint an already tainted process.
     “As I think about this, I wonder how any member of the military is going to be able to sit here and say, ‘I can be fair and impartial,'” Harrington said.
     Ryan also hit the defense for, in his view, arguing that the government could simply choose from different witnesses if the 10 Ryan had selected couldn’t testify at trial.
     “In short, they want to benefit from having killed so many people,” Ryan told Pohl.
     Nevin objected to Ryan’s wording, later saying “it’s not a fair representation of what the defense argued and it’s not a fair representation of my view.”
     Harrington also questioned the timing of the potential public deposition of witnesses. By asking Pohl to schedule the testimony during the first and second weeks of October, Ryan was ensuring the headlines that would no doubt result would pop up right in the heart of a bitter election season, Harrington said.
     “It seems to me the timing of this motion is just incredible,” Harrington said. “It is right before a national presidential election and if this is public it is really going to be public.”
     During their proposed depositions the family members would provide testimony about their loved ones and how his or her death changed their lives. Their testimony would be meant to help the members of the commission make the decision of whether the death penalty would be appropriate in the case.
     Tuesday’s arguments for the motion lasted until the daily break for lunch and prayer after noon.
     When Pohl took his seat again and the court came to order, Ryan took the podium to explain that eight of the 10 proposed witnesses have made the long trip to Guantanamo Bay in the past, attempting to assuage defense concerns that the victims might not be able to make the trip to be deposed.
     When he sat down, Mohammad spoke up.
     “You were not neutral in this argument,” Mohammad said to Pohl, speaking through an interpreter.
     Mohammad also made a remark seeming to compare the proceeding to a “nuclear bomb,” which was only partially translated. Nevin later suggested to reporters this was a reference to the bombing of Hiroshima and was “placeholder” for his client’s view that the United States has committed transgressions of its own in the past.
     In the courtroom, Pohl told Mohammad to be quiet and reminded him he has counsel whose express job is to speak for him while court is in session. Pohl threatened to throw Mohammad out of the courtroom as the detainee continued to speak over Pohl’s attempts to gain control of the room.
     Nevin later explained Mohammad took exception to Pohl overruling Nevin’s objection to Ryan’s recounting of the details of the 9/11 attacks. Pohl did not seem too sympathetic to Mohammad’s concerns, telling Nevin “that’s the way the system works.”
     Nevin also told Pohl the lack of an interpreter sitting next to Mohammad had left him unable to understand what a deposition is and how it would be structured.
     Mohammad, bin Attash and al Shibh are accused — along with Ammar al Baluchi and Mustafa Ahmad al Hawsawi — of conspiring to conduct the 9/11 terrorist attacks.
     They could all be executed if found guilty of the charges against them, which include conspiracy, attacking civilians, murder in violation of the law of war, hijacking an aircraft and terrorism.

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