Lawyers for defendants in the 9/11 case claim they cannot accept a military judge's order preventing their clients from speaking about their treatment in U.S. custody because it would violate their clients' rights under the United Nations Convention Against Torture.
Addressing a motion filed with the military commissions last week but not yet publicly available, Navy Commander Walter Ruiz told military Judge James Pohl in a Guantanamo Bay courtroom on Monday that he cannot sign the judge's January "protective order" -- designed to prevent the unauthorized release of classified information -- because his client, Mustafa Ahmed Adam al-Hawsawi, has a right to complain about his treatment in secret CIA custody under the international torture convention. Hawsawi and the other 9/11 defendants claim they were tortured.
This latest conflict arises because prosecutors in the case against the five alleged co-conspirators of the September 11, 2001 terrorist attacks have claimed that all evidence of their treatment in U.S. custody, including their own statements, are classified. They have never explained how allowing the men to describe their treatment, which is relevant to the sentencing phase of this death penalty case, would harm national security.
When he first assumed office, President Barack Obama issued an executive order banning the use of torture or cruel, inhuman and degrading treatment. Detainees held incommunicado in CIA custody were routinely subjected to sleep deprivation, stress positions, physical abuse and extreme temperature manipulation -- what the Bush administration called "enhanced interrogation techniques." At least three were also waterboarded: Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, was subjected to the practice, which simulates drowning, 183 times. President Obama has confirmed that waterboarding is a form of torture.
Since the five men's arraignment last year, prosecutors have insisted that the defendants not be allowed to mention their treatment in open court, and not be allowed to see, hear or obtain government evidence of their treatment. In a death penalty case, mistreatment of a defendant in custody is considered "mitigating evidence" that could weigh against imposing a death sentence.
The Convention Against Torture, meanwhile, not only outlaws torture and cruel, inhuman and degrading treatment, but also requires the United States to maintain effective mechanisms for victims to complain about their treatment and seek redress. Defense lawyers in the 9/11 case now claim that if they were to sign the Memorandum of Understanding accompanying the judge's protective order, they would be effectively prohibiting their clients from exercising their rights under the international torture convention.
The order would also prevent the lawyers from sharing any information they received from the government about their clients' treatment with the men themselves. "It's not fair to execute a man when you have not given him everything in the government's possession bearing on whether or not he should be executed," David Nevin, a lawyer for Khalid Sheikh Mohammed, told the court on Monday.
Prosecutors complained the defense lawyers should have filed their motion earlier, and argued the case should proceed with the judge's current order in place.
Commander Ruiz objected, saying, "There are dozens and dozens of legal motions that arise in this case all the time" that prevented him from filing the motion based on the torture convention earlier.
Recent issues addressed at pretrial hearings include whether the CIA was eavesdropping on defense lawyers' meetings with their clients; who's in charge of the court's censor button; whether prison guards improperly seized the detainees' legal files; whether a rat infestation at defense lawyers' Guantanamo offices endangered the lawyers' health; and whether the U.S. Constitution applies at Guantanamo Bay.