GUANTANAMO BAY NAVAL BASE, Cuba (AP) — Lawyers for the five Guantanamo Bay prisoners charged in the Sept. 11 attack on Tuesday challenged rules for handling classified evidence that they say prevent them from seeking an investigation into allegations that their clients were tortured in CIA custody.
In a pretrial hearing at the U.S. base in Cuba, lawyers sought to persuade a military judge that courtroom rules for handling classified evidence are so restrictive that they violate the Convention Against Torture, a global treaty ratified by the U.S. in 1994, because they prevent the defendants from disclosing details of their harsh treatment in the CIA's network of overseas prisons.
The five men facing trial by military commission were subjected to treatment that their lawyers say amounted to torture before they were taken to Guantanamo in September 2006. They may want to pursue some form of international complaint against the U.S. government, but can't do so because they and their lawyers aren't allowed to even discuss with anyone what happened to them in CIA custody.
Army Maj. Jason Wright, a military-appointed lawyer for lead defendant Khalid Sheikh Mohammed, said the judge should either provide a mechanism to pursue a claim — either through his native Pakistan, the United Nations or another country — or dismiss the charges.
"You cannot use state secrets to classify the observations and secrets of someone who was subjected to torture," he said.
Mohammed and his four co-defendants face charges that include terrorism, hijacking and nearly 3,000 counts of murder for their alleged roles planning and aiding the Sept. 11, 2001, terrorist attack. This week is the seventh round of pretrial hearings since their May 2012 arraignment to resolve preliminary legal issues before a trial that is still likely years away. They could get the death penalty if convicted.
Cheryl Bormann, who represents Yemeni defendant Walid bin Attash, said the judge could resolve the issue by removing the prospect of the death penalty. "You can't gag somebody, and then want to kill them," said Bormann, a Chicago lawyer who cloaks herself in a head-to-toe black garment known as an abaya in court to avoid offending her Muslim client.
Prosecutors insist that restrictions on the handling of classified evidence are meant to protect national security and that there has been no violation of the men's rights under the Convention Against Torture. Clay Trivett, a civilian prosecutor, said the U.S. has adequate safeguards that allow anyone in custody to pursue allegations of torture.
"They have means available to them," Trivett said. "They just do not have the means available to them they prefer."
The judge, Army Col. James Pohl, questioned whether the men, who were subjected to treatment that included prolonged sleep deprivation and the simulated drowning technique known as waterboarding, would complain to the same government that imprisoned them. But he also seemed skeptical that the lawyers could disclose classified information to third parties even if he altered or removed the protective order.
He did not issue a ruling and the hearing was scheduled to resume Wednesday.