By Jane Sutton
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - - A U.S. military judge angrily cut off a defense lawyer who tried to discuss torture on Monday during a debate on whether courtroom attendance was mandatory for five Guantanamo prisoners accused of plotting the September 11 attacks.
The brief but heated exchange came in a pretrial hearing in the death penalty case against Khalid Sheikh Mohammed, the alleged mastermind of the hijacked plane attacks that killed 2,976 people in the United States in 2001, and four alleged al Qaeda conspirators accused of providing money and other support for the hijackers.
Before their transfer to the Guantanamo Bay U.S. Naval Base in 2006, the defendants were held for years in secret CIA prisons where all five have said they were tortured during interrogations.
Their lawyers contend the defendants' treatment in CIA custody permeates every aspect 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.
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 war crimes courtroom at the Guantanamo 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.
The testy exchange occurred during a hearing that was otherwise calm and orderly, in stark contrast to the chaotic 13-hour arraignment hearing in May, when defendants made defiant outbursts and refused to answer the judge's questions or listen through earphones to an Arabic-English translation of the proceedings.
On Monday, the defendants listened attentively and answered politely. Defendant Ali Abdul Aziz Ali smiled when the judge told him the trial would go forward without him if he somehow managed to escape from Guantanamo.
"I'll make sure to leave some notes," he said.
Asked if he understood his attendance was voluntary for now, Mohammed said softly, "Yes, but I don't think there's any justice in this court."
The defendants were granted their request to choose their own courtroom attire. Mohammed, whose long beard was heavily hennaed, wore a dark vest over his white tunic and a loosely wrapped white turban. Some of the others wore brightly checked kaffayahs.
Their lawyers complained after the May hearing that the prison camp commander had refused to let them wear vests and hats that are traditional in their homelands of Pakistan, Saudi Arabia and Yemen.
In addition to Mohammed and Aziz Ali, defendants Ramzi Binalshibh, Mustafa al Hawsawi and Walid bin Attash are charged with conspiring with al Qaeda, attacking civilians and civilian targets, murder in violation of the laws of war, destruction of property, hijacking and terrorism.
All five could face the death penalty if convicted.
An earlier attempt to try them at Guantanamo ended when the Obama administration tried to move the trials to New York City, where two of the hijacked planes slammed into the World Trade Center.
That was abandoned under pressure from Congress and from New Yorkers, and the charges were re-filed in Guantanamo.
Many of the issues the court will address during the week-long hearing pertain to secrecy. Defense lawyers want the judge to abolish a "presumptive classification" process that treats as a top national secret any discussion of what happened to the defendants during their time in CIA custody.
The judge will also hear news organizations' request to limit closing of the courtroom for secret sessions, and be asked to decide whether the U.S. Constitution governs the tribunals being held at the U.S. base in southeast Cuba.
(Editing by Kevin Gray and Todd Eastham)
(This story was corrected to fix the name of the defendant who joked about escape note in 15th paragraph)