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Defence team requests to spend two nights in prison cells in order to understand conditions in which 9/11 accused are held
Lawyers defending Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and four of his co-accused have asked to be locked up for two nights in the Guantánamo prison in order to understand the conditions in which their clients are held.
The US government has objected to the request on the grounds that it "could endanger the lives of those involved in such a visit" and instead offered an escorted tour.
But one of the military defence lawyers, Lieutenant Commander Kevin Bogucki, likened the government's offer to the "jungle ride at Disneyland", where visitors think the mechanical elephant is real. He said he wanted a "full and meaningful inspection".
None of the defence lawyers have ever seen inside the maximum security facility, Camp 7, where detainees captured and tortured by the CIA –
including Mohammed, who was waterboarded 183 times – are held.
David Nevin, a lawyer for Mohammed, said he wants to visit Camp 7 in order to understand his client's "behaviour and his actions in open court, and also his reaction to his current conditions of confinement." He said it was necessary "particularly in the context of a person who was tortured".
The defence also said that conditions, and torture, may be used as factors during any sentencing phase.
The military judge, Colonel James Pohl, expressed surprise at the request. "You want to sleep with your client?" he asked one of the defence lawyers, Commander Walter Ruiz.
"No, I don't want to sleep with my client," responded Ruiz, who represents Mustafa al-Hawsawi. Ruiz said he intended to sleep in a nearby cell.
A government lawyer, Major Rob McGovern, said the authorities would agree to the lawyers visiting the prison but only on a two hour escorted trip without the detainees present. He derided the notion that defence lawyers would be walking around in their client's shoes for 48 hours.
Pohl said that what the government was proposing was "kind of like an open house: the family's not there, but they can see things". He questioned what harm it could do to have the prisoners present during the visit. McGovern said it was to ensure the safety of the visiting attorneys. Defence lawyers said they did not feel in danger from their own clients.
Government lawyers said that inspections by the international committee of the Red Cross were sufficient monitoring of prison conditions. But Ruiz accused the government of using "the ICRC as both a sword and shield" by saying that the Red Cross said conditions met international standards while refusing to release ICRC reports to the defence. The prosecution claimed the Red Cross reports are classified.
The request came on a second day of the latest preliminary hearing to set the terms of the full trial, as defence lawyers challenged what they say are myriad unreasonable restrictions and voiced suspicions that the government is spying on protected attorney-client communications though microphones in the court.
None of the five accused were in court on Tuesday after refusing to attend.
The defence team's concerns were heightened by an incident on Monday in which an unseen censor blanked out part of the audio relay from the sealed court room to the public and press without the judge's authorisation.
Pohl described it as "if some external body is turning the commission off" and addressed the issue again on Tuesday, saying that only he had the authority to order such a move and admitting that he didn't know what technology being used in his own court, and who is listening in.
However, he declined to explain what had happened in open court.
Joanna Baltes, a prosecution lawyer, said that the "original classification authority" – thought to mean the CIA – reviews the audio feed but it was not clear if it cut the sound.
Defence lawyers said they were concerned that the government and prosecution were eavesdropping on privileged discussions with their clients in the court room.
There was vigorous debate over how much of the full trial will be held in camera, and how much evidence will be kept classified, with one defence lawyer suggesting that the process smacked of secret trials in Fidel Castro's Cuba.
Attorneys for the alleged 9/11 attackers also objected to a "protective order" by the military court, which requires the defence to provide summaries in advance of witnesses testimony, even where there are no security concerns. A government lawyer then said that would no longer be required.
Pohl sidestepped a defence request to order preservation of CIA "black sites" overseas, where the detainees were interrogated and tortured.
He said he will address the issue at another hearing in February, although it seems unlikely that any evidence of their use as interrogation centres remains.
The judge also declined a request from one of the defendants, Ammar al-Baluchi, to make a videophone call to his mother in Pakistan following the death of his father last year. The court was told that Guantanamo inmates have made about 1,800 phone calls to relatives in their home countries since 2008. But detainees who have been held at CIA black sites are denied the opportunity.
Pohl said that while he sympathised with the loss of a parent he did not have the authority to force the issue with the prison authorities.
Some relatives of those killed on 9/11 were strongly opposed to the accused organisers of the attack being able to phone home.