GUANTANAMO BAY NAVAL BASE, Cuba (CN) - Lawyers for the self-professed mastermind of the Sept. 11, 2001, attacks and his four alleged co-conspirators told a military judge Tuesday that a protective order barring mention of their treatment by the CIA violates the Convention Against Torture.
Khalid Sheikh Mohammed, who boasted before his capture of being the architect of the attacks on the World Trade Center and the Pentagon, initially faced a military commission with five co-conspirators. Four of those men, Ramzi bin al-Shibh, Walid bin Attash, Ammar al-Baluchi and Mustafa al-Hawsawi, still face charges before the commission.
In 2009, the military's then-convening authority Susan Crawford declined to prosecute the last suspected "20th hijacker," Mohammed al-Qahtani, because she said his treatment by the military fit "the legal definition of torture."
On a tour of the war court here, Guantanamo Bay supervisor John Imhof told reporters it currently has five holding cells because of the dropped charges against al-Qahtani, who allegedly would have been part of the suicide mission if a Florida agent had not deported him days before the worst terrorist attacks in U.S. history.
The circumstances behind al-Qahtani's aborted prosecution remained fresh on the minds of lawyers for the remaining Sept. 11 suspects. They cited the case in their bid to have a military judge remove what they allege to be barriers in investigating U.S. government "war crimes" against their clients.
Prosecutor Clayton Trivett Jr. countered that the commission was about the "summary execution" of nearly 3,000 people in the United States, not allegations of their torture.
At Monday's press conference, the chief prosecutor, Brig. Gen. Mark Martins, noted that the eventual trial for these attacks may be delayed by parallel proceedings for the alleged plotters in the U.S.S. Cole bombing off the coast of Yemen. He said this month marks the 13th anniversary of those attacks, which occurred on Oct. 12, 2000.
At issue on Tuesday was a two-page "memorandum of understanding" from Feb. 7, 2013 obligating defense attorneys to not disclose classified information. Lawyers for four out of the five suspects refused to sign it, and the fifth, James Connell, acceded because he said it did nothing more than emphasize the terms he agreed to already.
Cheryl Bormann, a Chicago attorney specializing in death penalty cases who represents bin-Attash, said the document was, at best, a redundancy that she compared to a court order requiring prosecutors to share exculpatory information.
At worst, she said it was an order to "gag my client in violation of a treaty that the United States is a signatory to," referring to the Convention Against Torture.
"I am offended by that," she said.
Before the hearing, Maj. Jeffrey Wright, the military lawyer for Mohammed, protested having the hearing without testimony from former United Nations Special Rapporteur on Torture Manfred Nowak, who would have told the commission about the treaty.
Signed by the United States in 1988 and ratified in 1994, the treaty obligates countries to investigate allegations of torture and to punish those who commit torture. It makes no exceptions for war or national emergency, and forbids classifying evidence that supports the claims.
Prosecutors say the suspects do not have access to the treaty because it is "not self-executing," meaning it requires an act of Congress to enforce it.