Should defense lawyers in the September 11 terrorism case be allowed to visit the secret camp where their clients are imprisoned at Guantanamo Bay? And if so, how much access to the prison is enough?
Late Tuesday morning defense lawyers at the Guantanamo military commission hearing the 9/11 case insisted they want at least a 48-hour visit, plus regular visits every six months afterwards. In all the years of their clients' imprisonment, they've never been allowed to see where the men are being held.
"You want to sleep with your client?" asked Judge James Pohl, the military judge presiding over case.
"No, I don't want to sleep with my client," responded the military lawyer for Mustafa al-Hawsawi, Navy Cmdr. Walter Ruiz. He explained he wants to be able to spend the night in the prison to get an accurate picture of the conditions over a period of time.
"Do you believe presence of defense counsel might change the conditions?" asked Judge Pohl. Ruiz said he didn't know, but it would certainly be better to have a 48-hour visit than a quick guided tour, which is what the government, which opposes the entire request as irrelevant, has nevertheless agreed to allow.
The government claims the conditions of the five accused men's confinement is irrelevant to the case. In their court papers, they even say a visit to Camp 7, where the five defendants are imprisoned, "could endanger the lives of those involved in such a visit."
But defense lawyers say it's "mitigating evidence" relevant to whether the men have been unlawfully punished before trial and whether they deserve the death penalty, if convicted. In a death penalty case, a broad range of evidence is considered relevant to determining the appropriate punishment.
Prosecutors say they're willing to allow one visit, but only under strict conditions. Those include that the lawyers are accompanied at all times and speak only to specifically authorized prison personnel; they cannot speak to their clients or any other prisoners during the visit; they cannot photograph, diagram or sketch any part of the prison; and their notes would be subject to review by government classification authorities.
The defense lawyers object that this would hardly allow an objective view of their clients' living conditions.
Lt. Commander Kevin Bogucki, the military defense lawyer for Ramzi bin al Shibh, compared the government's proposed tour of the prison camp to "a Jungle Cruise at DisneyLand." Such a guided tour "is unlikely to reveal anything," he said. "It will be compliance with this request for show only."
Cheryl Bormann, defense lawyer and death penalty expert for Walid bin Attash, explained how unusual are the circumstances in which the defense lawyers in this case now find themselves.
"In a regular trial in the civilian world," she said, "I have regular access to my client. I have regular access to the conditions of my client. I would have a passing observation of changes that occurred in those living conditions" and be able to document those.
"I've never had a court reject the documentation of my client's living conditions" for purposes of mitigation, 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 said a 48-hour visit is the "bare minimum" she needs, and that visits "more than every six months may be necessary."
Army Major Robert McGovern, speaking for the prosecution, insisted defense lawyers have no right to an overnight visit to the camp. "We're being incredibly reasonable by agreeing to access to the site," he said.
Defense lawyers also want access to reports and other communications from the International Committee of the Red Cross, or ICRC, to the U.S. government about the conditions of confinement at the Guantanamo prison. The government says they're privileged and doesn't want to provide them.