Feds Seek Testimony of 9/11 Victims’ Families

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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