A defense lawyer in the 9/11 war crimes tribunal at Guantánamo told a military judge on Friday that the former chief prosecutor for military commissions refused at least 25 times to answer his questions about whether there had been any improper influence from senior Defense Department or Obama administration officials in bringing war crimes charges against Khalid Sheikh Mohammed and four others.
Captain Murphy invoked a special privilege against answering questions dealing with internal government deliberations, Commander Ruiz said. He invoked it 25 to 30 times, Ruiz said.
“One of the things I asked was who else was in the room,” he said.
Ruiz said he asked Murphy if he had contact with the general counsel of the Defense Department. “They raised the privilege on those issues” as well, Ruiz added.
The comments came on the last of five days of pretrial hearings designed to iron out pending legal issues in advance of the expected war crimes tribunal at Guantánamo. No trial date has been set.
Command influence is a thorny issue in military courts given the fact that all parties in the court – the judge, the jury, the prosecutors, and many of the defense lawyers – all work for the Department of Defense and function within a chain of command. Ruiz was asking the judge, US Army Col. James Pohl, to intervene on his behalf to help him investigate the improper influence claim.
Defense lawyers have filed a motion seeking dismissal of the charges against Mohammed and his four co-defendants because they claim that public statements by President Bush, President Obama, and other senior government officials have made it impossible for the defendants to receive a fair trial.
Government lawyers opposed the defense motion, denying that the case has been tainted by command influence. They suggest that defense lawyers have no evidence of wrongdoing.
“The defense is not entitled to go on a fishing expedition,” said Army Major Robert McGovern, a member of the prosecution team.
Judge Pohl did not rule on the issue.
Also on Friday, defense lawyers asked Judge Pohl to permit greater public access to close-circuit broadcasts of the Guantánamo proceedings. The defense even asked that the video-feed from Guantánamo be provided to broadcast companies such as C-Span to transmit nationwide.
Government lawyers argued against the proposals. They said the current system offering public and media access to a video-feed at Fort Meade, Md., satisfied constitutional requirements of public access.
“The government’s position is that the First Amendment right to access is not absolute,” Navy Lt. Kiersten Korczynki told the court.
“The standard is whether the media and the public have the ability to observe the proceedings and report on what was observed,” she said.
“There is no evidence that any members of media or public have been excluded from sites in the United State,” she added.
The day-long Friday session capped off a week in which the court heard argument in more than 20 legal motions. The judge set another week-long session for pretrial motions during the week of Dec. 7. He told counsel that he planned to hold similar week-long sessions at Guantánamo once every two months until the underlying issues are resolved and the case is set for trial.
Earlier in the week, Judge Pohl ruled that the five defendants must be given an opportunity each day to waive their right to be present at the hearings. On Friday, all five defendants decided not to attend.
The judge also ruled earlier that the defendants were free to decide what type of clothing to wear during courtroom appearances. The ruling opened the door for the defendants to don camouflage clothing, including the kind of military field jacket favored by some Al Qaeda members in Afghanistan.
Shortly after that decision, Mohammed appeared in the hearing room in a camouflage hunting vest worn over his white tunic.
The commander of the detention camp at the US Naval Base at Guantánamo Bay, Cuba, had earlier barred the defendants from wearing camouflage clothing out of concern that they might try to use military-style jackets to convey to military jurors and trial spectators that they are lawful combatants rather than terrorists.
Judge Pohl did not address the potential communicative impact of a defendant’s clothing choice.
The judge has yet to issue decisions on the most weighty issues discussed during the week. They include whether he will approve a government-proposed protective order concerning the handling of classified information. Defense lawyers argued that the order sought to treat their client’s first-hand knowledge of the CIA’s secret rendition, detention and interrogation program as Top Secret information.
They said it was akin to the government seeking to exert control over their client’s thoughts.
The judge is also considering whether the defendants should enjoy a presumption that full constitutional protections will apply in the military commission proceeding at Guantánamo. Prosecutors argued that the judge should wait until an actual issue arises in the case that requires the judge to decide whether a specific constitutional right should or should not apply to a specific defendant.
Mohammed and his co-defendants – Walid Bin Attash, Ramzi Bin Al-Shibh, Ali Abdul Aziz Ali, and Mustafa Al-Hawsawi – are charged with committing war crimes by plotting with others to hijack four commercial aircraft and fly them into the World Trade Center and Pentagon on Sept. 11, 2001. The attacks left nearly 3,000 people dead.
All five defendants face a potential death sentence if convicted.
In addition to reporters at Guantánamo, members of the media monitored the hearing via a video feed at Fort Meade, Md.