Gitmo Tribunals: Defense Seeks a Slumber Party with Accused Terrorists

FORT MEADE, Md. — Today’s pretrial hearings in the murder case of Khalid Sheikh Mohammed and four alleged co-conspirators saw all five defendants refuse to come to court and prefer to stay in their cells.

And in the Guantanamo Bay courtroom, defense attorneys were arguing that they should have the right to join their clients.

Lawyers for Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed al-Hawsawi are petitioning for the right to spend 48-hour visits with the accused terrorists.

“You want to sleep with your client?” Judge James Pohl asked with a mix of surprise and bemusement.

“No, I don’t want to sleep with my client,” said Navy Cmdr. Walter Ruiz, representing al-Hawsawi, explaining that the attorneys want to go where they’ve never gone before: into Camp 7, the secretive, segregated, high-security area at Gitmo where the defendants in this capital case are held — each facing 2,976 counts of murder in the worst terror attack on U.S. soil.

Defense attorneys say they want the “best understanding of living conditions” of their clients, including “stressors,” daily activities, lighting conditions, and so forth, said Ruiz. “The whole point is we don’t know,” he said, as they’ve never had access to this living facility.

“Do you believe the presence of defense counsel might change the way the facility operates?” the judge asked, stressing he wasn’t trying to be flippant but noting that “the mere presence of defense counsel naturally would distort” how day-to-day operations are carried out.

Prosecutors have offered a short controlled-access visit with strict security guidelines for the mix of military and civilian attorneys representing the accused.

But one of those civilian attorneys, Boise lawyer David Nevin, said the primary reason for the request is to understand and document “exactly what life in these camps is like.”

Nevin, who represented and guided Kevin Harris to acquittal in the deadly 1992 Ruby Ridge siege, is assisting in the defense of professed 9/11 mastermind Mohammed as part of the John Adams Project sponsored by the ACLU and the National Association of Criminal Defense Lawyers.

“The torture that was inflicted on him bears on many things that are related to this case, including his behavior in open court,” Nevin said of his client today, saying he wanted to see the prison conditions particularly “in the context of a person who was tortured.”

In fact, a two-day field trip might not even be enough, he argued. “Being there for 48 hours doesn’t necessarily give you a picture of what life is like there,” Nevin said.

Cheryl Bormann, the Chicago lawyer representing bin Attash, said “48 hours is the bare minimum” for a sleepover visit — and after the “baseline review,” revisits more than every six months may be necessary.

“In a regular trial in the civilian world, I have regular access to my client,” she said. “…Here, I’ve never been to see my client’s conditions of confinement so I can’t have any passing knowledge of whether or not things change.”

She also argued that how her client has adapted to institutionalization would be a “huge issue” in the sentencing of a capital case.

Bormann, who has chided other women in the courtroom in the past for not dressing modestly enough in front of the accused terrorists, was not wearing an abaya in court today as her client was tucked out of eyesight, back in his cell.

All five of the accused refused to show for court today after being given the option at around 5:30 a.m. to exercise their right to be present for proceedings or sign a document indicating that they didn’t want to be in court.

Mohammed, who earned a mechanical engineering degree from North Carolina Agricultural and Technical State University in the 1980s, was the only one of the five who requested to sign the English-language form, which was also offered in Arabic.

Mohammed spoke Arabic in court yesterday when asked by the judge if he understood his right to be present or absent. He is fluent in Arabic, English, Urdu, and Baluchi.

Lt. Commander Kevin Bogucki, the military lawyer representing bin al Shibh, compared what the prosecution was offering for visitation to the Jungle Cruise at Disneyland — where everyone’s loaded into a boat and told by the tour guide that the animatronic animals on the shores are real in the tightly controlled trip.

“From that limited perspective from which you cannot leave you might think it’s an elephant in the jungle,” Bogucki said, adding that their fact-finding mission in Camp 7 could “explain why our clients are behaving the way the government says they’re behaving.”

“The limited scope of the inspection the government is proposing would be like staying on the boat in the Jungle Cruise,” he said.

Nevin picked up this theme. “We can learn a lot by a 48 hours of continuous presence, more than we could by floating by the island,” he said.

Army Major Robert McGovern, speaking for the prosecution, said their offer is “incredibly reasonable” given the security considerations. He also noted that the evidence they’ll offer in trying the murders of 2,976 won’t include anything having to do with confinement as an aggravating factor.

“We don’t think it is appropriate to be able to just walk around,” McGovern said of the site.

Judge Pohl picked the brains of the defense attorneys about what kind of overnight visit they were envisioning: sleeping on a cot next to their client, bunking in an adjoining cell?

Ruiz said adjoining cells with a physical barrier to stem the security concerns of the government, but allowing free access to communicate with the terror suspects, should be sufficient.

“I don’t see the necessity of protecting us from our clients,” said Nevin, quickly adding that he only spoke for his client, Mohammed — who confessed not only to plotting multiple attacks but to beheading Wall Street Journal reporter Daniel Pearl.

Mohammed and his co-defendants have hearings Jan. 31 and Feb. 11-14. Abd al-Rahim al-Nashiri, alleged mastermind of the USS Cole attack, is scheduled to appear in court from Feb. 4-7.

These cases are the ones before the Guantanamo tribunal that carry the possibility of the death penalty.

Stay tuned to PJM for ongoing coverage of the Guantanamo tribunals. Yesterday: Suspect complains there’s no motivation to come to court