Khalid Sheikh Mohammed and four other defendants say attending court proceedings will bring back memories of torture

This article is more than 7 years old

This article is more than 7 years old

Lawyers for the Guantánamo prisoners accused of plotting the September 11 attacks argued in a military pretrial hearing that the defendants should be allowed to voluntarily skip court proceedings because it might dredge up bad memories of torture in CIA detention.

At one point in the hearing on Monday, a military judge angrily silenced a defence lawyer for Khalid Sheikh Mohammed, the alleged mastermind behind the worst terrorist attacks in US history, when he tried to discuss torture during an exchange on whether courtroom attendance was mandatory for the five men accused of organising and funding the attacks.

The weeklong hearings, in Camp Justice, the war court compound at the US naval base in Cuba, are expected to focus on secrecy and transparency, but will cover a range of issues from whether the prison camps can force the men to attend their own trials to what they can wear in court, the Miami Herald reported. They are part of the legal proceedings required to move the case to trial, estimated to be at least a year away.

Before they were transferred to Guantánamo Bay US naval base in 2006, the defendants were held for years in secret CIA prisons. All five have said they were tortured during interrogations, and the CIA's declassified documents record Mohammed being waterboarded 186 times.

Their lawyers have said their harsh treatment in CIA custody affects all aspects of the case. The chief prosecutor has said it could be relevant later in determining whether prisoners' statements were voluntarily given and as a potentially mitigating factor during sentencing.

The judge, army Colonel James Pohl, declared it was not relevant in a discussion of whether the defendants had the right to voluntarily skip court sessions, according to Reuters.

Mohammed's lawyer, air force Captain Michael Schwartz, said forcibly removing them from their cells and hauling them into court would subject them to physical and emotional strain reminiscent of their time in CIA custody.

"We have to talk about torture," Schwartz said.

"No we don't," the judge replied.

"I think we do," Schwartz said.

"I'm telling you I don't think that's relevant to this issue. That's the end of that," Pohl snapped.

When Schwartz persisted, Pohl said angrily: "Are you having trouble hearing me? Move on to something else!"

Unlike previous sessions at the high-security courtroom at the Guantánamo Bay base in Cuba, the court security officer did not muffle the audio feed that spectators hear when the word "torture" was uttered.

Pohl ruled the defendants had the right to voluntarily be absent from hearings, at least until jurors are assembled for the actual trial, estimated to be at least a year away.

The exchange happened in proceedings that were otherwise orderly, in sharp contrast to the last hearing, in May, which was chaotic, marred by protests and outbursts from the five, who refused to answer the judge's questions and which stretched to 13 hours.

One of the key issues at this week's hearing will be how much the men's lawyers and the wider world will be allowed to learn about their time in CIA custody. The government argue that whatever the men say about their time in the CIA's secret network of "black sites" is classified at the highest levels.

Prosecutors have asked the judge to approve what is known as a protective order that is intended to prevent the release of classified information during the eventual trial of the five.

Lawyers for the defendants say the proposed rules will adversely affect their defence. The American Civil Liberties Union, which has filed a challenge to the a protective order, says the restrictions will prevent the public from learning what happened to Mohammed and his co-defendants during several years of CIA confinement and interrogation.

The order requires the court to employ a 40-second delay during legal proceedings, so that reporters and the public, who watch behind sound-proof glass, can be stopped from hearing details of the CIA's classified rendition and detention programme from officials, lawyers or the defendants themselves.

On Monday, the defendants listened attentively and answered politely. Defendant Ramzi Binalshibh, a Yemeni accused of helping the September 11 hijackers find flight schools, smiled when the judge told him the trial would go forward without him if he somehow managed to escape from Guantánamo.

"I'll make sure to leave some notes," he said.

Asked if he understood his attendance was voluntary for now, Mohammed said: "Yes, but I don't think there's any justice in this court."

The defendants were allowed to wear their own clothes, after complaining that they had not been allowed to wear hats and vests traditional in their homelands of Pakistan, Saudi Arabia and Yemen.

Mohammed wore a dark vest over a white tunic, and his beard was dyed red with henna. He had on a turban while some of the others wore brightly checked kaffayahs, Reuters reported.