8-22-2013By Daphne Eviatar
Law and Security Program
Prosecutors in the 9/11 case insist the defendants should not be allowed to see any written material related to current politics, historical perspectives on jihad, or anything produced by al Qaeda or other terrorist groups, although the five men are accused of committing the most deadly terrorist attack ever on U.S. soil on behalf of the terrorist organization, inspired by its extremist politics and jihadist philosophy.
Proceeding at a snail’s pace through hundreds of procedural motions filed with the commission in pre-trial hearings, Judge James Pohl grappled with prosecutors’ claims that restricting access to al Qaeda materials is critical to preventing violence at the prison, and defense attorneys’ arguments that they cannot fairly represent their clients if they’re banned from showing and talking to them about the very material and beliefs that allegedly influenced their actions.
As Khalid Sheikh Mohammed’s attorney David Nevin said to Judge Pohl: “If a fatwa is alleged in the charge sheet, how can it be banned from the accused as contraband?”
Arguing he has an obligation to develop and present the context in which his client allegedly acted, Nevin insisted that writings illustrating that context cannot be prohibited. “Never in the history of the world has there been a definition of contraband that includes a matter directly relevant to the defense of the accused,” he said repeatedly.
On Thursday morning, prosecutor Ed Ryan defended the government’s proposed restrictions as reasonable and necessary to security at the prison camp. He explained that while an official document such as the 9/11 Commission report could be appropriately delivered to a defendant, “some book by some questionable author exhorting future violence” would be “an unreasonable risk.”
Nevin dismissed that argument. “These all bear on questions of why people are trying to kill each other,” he said. “To refer to these matters in shocked terms, to suggest they might be anti- American, or a book written by a questionable author, advocating violence, in the future or in the past… this case is littered all about with people advocating violence. It’s in the nature of the allegations against them. ” Under the rules proposed, Nevin said, he couldn’t even show the charge sheet to his client.
“Don’t tie our hands that way,” he pleaded to Judge Pohl. “It will render everything we do meaningless.”
The other problem with the proposed restrictions, defense lawyers complained, is they could not even share with their clients an obviously relevant book written by a non-questionable author – including, for example, a witness who might testify in the case – if the lawyers made any markings on the book highlighting particular facts or concerns for the client. Those markings would be privileged attorney-client work product, but as soon as the Guantanamo “privilege team” looked through the book the notes would no longer be confidential. That would violate the lawyers’ ethical obligations of confidentiality to their clients.
“The category of material I’m interested in sending my client is . . . directly related to the defense of this case,” said Cheryl Bormann, lawyer for Walid bin Attash. A book by former FBI interrogator Ali Soufan, for example, has an entire chapter on her client, Bormann said. “When I do that I don’t just send it blindly. I want him to understand the context, I want to direct his attention, I want to prepare him for future discussions.” To prevent breach of the attorney-client privilege, she said, she would have to hand-write or type verbatim large sections of a published book simply to highlight some portions of it. “I can do it but it’s going to slow down the proceedings quite a bit,” she said.
Twelve years after the September 11 terrorist attacks, the 9/11 military commission case against the five alleged masterminds of the attack is only in the pre-trial phase; the case may not get to trial until 2015.
Judge Pohl listened carefully to the arguments on Thursday and seemed sympathetic, but he’s also been reluctant in this case to question any rules that Guantanamo officials claim are necessary for security.
In the past, those rules have led to some absurd results. John Grisham books have been banned in the prison - including “The King of Torts” about mass tort litigation – and previous hearings have revealed that Soufan’s book The Black Banners: The Inside Story of 9/11 and the War Against Al Qaeda and the 9/11 Commission Report have in the past been removed from the 9/11 defendants’ cells as well.
Prosecutors frequently cite with pride the example of a guard who stopped the al Qaeda magazine Inspire from reaching one of the defendants, after it was sent to him by an attorney. Prosecutors say it contained an article on how to “make a bomb in the kitchen of your mom.”
Defense attorney Michael Harrington, representing Ramzi bin al Shibh, on Thursday questioned the necessity of banning that. “If you send in an Inspire magazine about making a bomb in the kitchen, look at what that means in this context. Is that going to make a difference in how they’re treated? They couldn’t possibly be treated with any more security than they already are.”
The defense also argued on Thursday that the military commissions are unconstitutional because they discriminate against non-citizens (U.S. citizens get to go to civilian federal court), the Convening Authority acts as both prosecutor and judge, and the commissions don’t comply with the international laws of war. Defense lawyers have made similar arguments in other commission cases. So far, they’ve always lost.