Phone Access Demanded for Accused 9/11 Plotters

     GUANTANAMO BAY NAVAL BASE, Cuba (CN) — Restricting the phone access of five men accused of plotting the 9/11 terrorist attacks violates international and U.S. law, attorneys told a military judge Wednesday.
     One member of the defense team for Walid bin Attash, an alleged senior al-Qaida lieutenant, argued Wednesday that current policies at Guantanamo Bay restricting detainee communication with family members makes it difficult for the men to participate in their defense.
     “Where we are today, the level of communication we have today, amounts to pretrial punishment,” Michael Schwartz said in court this morning.
     Bin Attash’s representatives noted in particular that the government has refused to screen and transmit. a video message the detainee recorded for his family in 2014.
     Detainees have the opportunity to record such videos once every quarter, explained James Connell, learned counsel for accused 9/11 financier Ammar al Baluchi.
     Connell explained that the videos are then translated, reviewed for 10 to 15 minutes, and then beamed to family members at Red Cross facilities.
     The family members on the other side then can record a two-to-three minute response.
     This arrangement allows some communication with family members, Connell conceded, but said it is not the real-time conversation the detainees would like and that he claims is required.
     Col. James Pohl, the military judge presiding over these pretrial proceedings, grilled Connell on this point.
     “So they have that communication and you don’t like that,” Pohl asked. “You want more than that.”
     After the government refused to send his video in 2014, bin Attash asked the prosecution to turn over information related to the messages he had sent to his family. He specifically wanted to know about the government’s decision to not screen the message in question.
     The prosecution quickly denied the request, concluding the message was “self-serving,” an argument repeated in court Wednesday.
     Schwartz began his arguments before Pohl this morning by saying he often tried to imagine what it would be like to have a child “kidnapped,” as he suggested bin Attash was from his family. Having no children himself, only dogs, Schwartz said he still tried to place himself in the position of bin Attash’s family.
     The members of bin Attash’s family had no information about where he was while he was held in CIA custody and didn’t know he was alive until relatively recently, Schwartz said.
     “The impact of that incommunicado detention, as well as the conditions of confinement at Guantanamo, are significant,” Schwartz told the court.
     As with his four accused co-conspirators, bin Attash was reportedly held in a CIA black site and subjected to some of the agency’s harshest torture techniques before being sent to the remote and secretive detention facility at Guantanamo Bay.
     Schwartz questioned how the “incommunicado” detention affected his client’s well-being and said it also hurt his ability to contact bin Attash’s family to get details about his life that would help in his defense.
     “That has an undeniable chilling effect on a defense team’s ability to develop mitigating information,” Schwartz said.
     The government countered that bin Attash’s discovery request was overbroad and not based on any legitimate need for the defense team.
     “While the defense offers conclusory arguments regarding ‘conditions of confinement’ and ‘mitigation’ in hopes of triggering a Pavlovian-type response to compel discovery of the requested materials, they must do more than simply speak state words,” the prosecution wrote in one May 2015 pleading . “The commission should hold the defense to their burden and not accept the defense invitation to automatically increase the ambit of those two terms of art whenever they are uttered.”
     Schwartz found a similar argument the prosecution made in the courtroom Wednesday confusing.
     “Your honor, I don’t know how something can be irrelevant when we haven’t seen it,” Schwartz told Pohl.
Open-Court Depositions for Family Members of 9/11 Victims
     The court’s consideration of detainee access to their family members today came on the heels of the government’s push to take open-court depositions from people who lost loved ones on 9/11.
     For the prosecution, the deaths recently of two such witnesses have hammered home how much time has passed since the terror attacks, and how vital it is to get these statements on the record.
     “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,” Ed Ryan, trial counsel for the government, told the court Tuesday.
     The government wants to obtain on-the-record statements from 10 people who are older than 65 and who could have a hard time getting to the remote military base whenever the trial actually begins.
     If permitted, the depositions would be used in the presentencing phase of the trial. They are meant to give background on some of the people who died in the attacks and show how their deaths impacted loved ones. The five accused face the death penalty if convicted before a military commission.
     Defense attorneys seemed shocked at the idea of receiving pre-trial testimony in open court from the victim family members, saying it could improperly influence the people who might eventually serve on the military commission’s version of a jury.
     “And if you think logically about the situation, you’re talking about evidence here that may never be presented,” said David Nevin, learned counsel for alleged 9/11 mastermind Khalid Shaikh Mohammad. “So there would be no reason to air this evidence publicly before the time when it becomes even relevant to be presented.”
     Several family members of the victims of the attacks on New York and the Pentagon spoke with reporters about the maneuver Wednesday afternoon. They said the chance to hear the testimony in open court is a milestone in an interminably long trial.
     “First time that I felt that there was finally some positive direction,” said Ken Fairben, whose son Keith died while helping injured victims in the South Tower of the World Trade Center. “Seriously. I mean we’ve sat through [convicted ’20th hijacker’ Zacarias] Moussaoui’s trial for seven weeks, we’ve been through this.”
     If allowed, the depositions would occur over two weeks in October.
     “It’s going to be difficult, it’s going to be emotional,” Fairben said. “Each family, or whatever number they’re going to allow to express those feelings, those emotions, how it’s impacted them.”
     Fairben said “there was not a dry eye in this group” when Ryan presented this argument to the court.
     “And that was just touching briefly on some of the families that would be deposed,” he added.
     Ryan was adamant at the hearing the accused should be in the room during the statements, especially considering their past interest in representing themselves. The family members of the victims shared Ryan’s sentiment.
     “To let the ones that did this hear, hear what people lost,” said Jim Samuel, whose son James was in the 92nd floor of the North Tower during the attacks

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