In this pool photo of a Pentagon-approved sketch by court artist Janet Hamlin, defendant Khalid Sheikh Mohammed, left, speaks with lead defense lawyer David Nevin during a pretrial hearing at the Guantanamo Bay U.S. Naval Base in Cuba, Monday, April 14, 2014. (AP Photo/Janet Hamlin, Pool)

A Change in Narrative at the 9/11 Trial?

May 31, 2016
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For nearly four years, the war court at Guantanamo Bay, Cuba has been focused on many complaints from the five defendants accused of masterminding and supporting the 9/11 attacks: their difficulties getting the materials their lawyers say they need for their defense; documents confiscated from their cells; listening devices in rooms for confidential meetings; having to suffer the touch of female guards; their torture at the hands of the CIA.

Today, the narrative changed, at least for a few hours.

Prosecutors asked Judge James L. Pohl to let the court hear testimony from 9/11 victims’ family — before the actual trial begins.

In an impassioned delivery, prosecutor Ed Ryan referenced two witnesses whom he said the government had intended to call, but who passed away in the last several months. “Passages of life are happening, and can happen quickly,” Ryan said, arguing they needed to record witness testimony now, rather than to “just sit back waiting for bad health to arrive.” He went on to list 10 potential witnesses with advancing age and health concerns.

More broadly, it sounded like Ryan was trying to change the narrative of the hearings. The court had heard “much about the treatment of the accused … the word ‘torture’ used over 500 times,” he said, while noting the phrase “9/11” had only been used about 200 times.

Ryan went on to describe in harrowing detail just the kind of testimony the court would hear from these witnesses, such as Lee Hansen, whose son, Peter, daughter-in-law, Sue, and granddaughter, Christine, all perished on United Airlines Flight 175. Ryan described the cellphone conversation between Hansen and his son after the plane was hijacked, with Peter screaming, “Oh God, oh God,” as the plane crashed into the South Tower of the World Trade Center. Ryan appeared to choke up at one point as he addressed the court.

Lawyers for all five defendants were equally passionate in their opposition to the prosecution’s proposal. They argued that there was no legal precedent for taking witness testimony in open court, in advance of an actual trial.

David Nevin, attorney for Khalid Sheikh Mohammed, the accused mastermind of the 9/11 plot, said usually if there are concerns about getting testimony on the record, court officers, “go to where the witness is, you take a deposition,” rather than have witness testimony on the record before a trial even starts.

Cheryl Borman, attorney for Walid bin Attash, pointed out the testimony would be posted on the military commission’s website, accessible to anyone, including the military officers who will be empanelled to act as jury when the actual trial begins.

And James Harrington, representing Ramzi bin al-Shibh said, “The timing of this motion is just incredible,” noting that the prosecution wanted to call the family members to testify in October, “right before the presidential election.” He added that there was “a real question here of requesting it be done at this particular time.”

The arguments triggered an outburst from Khalid Sheikh Mohammed, who shouted, “Your honor, you were not neutral in this argument–” before being interrupted by Judge Pohl, who threatened to eject him from court.

Mohammed got out what sounded like several references to “American” as well as a cryptic line, “He needs to know this is a nuclear bomb in the world,” before David Nevin was able to quiet his client. Nevin then explained to Judge Pohl that Mohammed thought it was unfair that he had overruled Nevin’s objection to Ryan’s argument about witness testimony. He also said Mohammed was confused about what was happening and unhappy with inadequate translation and interpretation of Ryan’s remarks. Nevin later told reporters that Mohammed had been shouting, “You’re all Americans.” He also speculated that the nuclear bomb remark was a reference to the American bombings of Hiroshima and Nagasaki, reflecting something of Mohammed’s view of the United States.

By the end of the day, the court returned to the familiar problems faced by the defendants, many of which had surfaced years before: hidden listening devices in rooms used for privileged attorney-client conversations, and interference and monitoring with the courtroom audio feeds by an external intelligence agency.

Tomorrow the court is scheduled to take on a dispute over interference in communication between Walid bin Attash and his family, as well as a prosecution request to introduce the audio recovered from the flight data recorder of United Airlines Flight 93, which crashed in Pennsylvania as passengers struggled to regain control of the plane from the hijackers.

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