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Protective orders are standard in civilian and military trials to set rules for handling evidence. Military prosecutors argue in court papers that the Sept. 11 trial requires additional security because the defendants have personal knowledge of classified information such as interrogation techniques and knowledge about which other countries provided assistance in their capture.
Army Brig. Gen. Mark Martins, the chief prosecutor for the military commissions, said Sunday the security precautions are necessary to prevent the release information that could harm U.S. intelligence operations or personnel around the world, and not to prevent embarrassing the government or to cover-up wrongdoing.
“Our government’s sources and methods are not an open book,” Martins said.
The U.S. government has acknowledged that before the defendants were taken to Guantanamo in September 2006 they were subjected to “enhanced interrogation techniques” such as the simulated drowning method known as waterboarding.
Defense attorneys say the treatment will be used to form the basis of their defense, but the proposed order limits their ability to make that case in court and in public advocacy on behalf of their clients.
“It’s a way in which the government can hide what it did to these men during the period of detention by the CIA,” said Army Capt. Jason Wright, a Pentagon-appointed attorney for Mohammed. “I think we need to bring the truth to the light of day on these issues.”
The judge’s approval of the protective order, which may not happen this week, must occur before the Sept. 11 case can move forward. Defense lawyers cannot begin to review classified evidence against their clients until it is in place.
The Sept. 11 victims’ family members attending the hearings in Guantanamo are chosen by lottery. Other families and the public were invited to view the proceedings from closed-circuit video in New York, New Jersey, Massachusetts and Maryland. Just seven families attended the first day of the hearings at a U.S. military base in Brooklyn.
Mohammed and his four co-defendants are being prosecuted in a special military tribunal for wartime offenses known as a military commission. They were arraigned May 5 on charges that include terrorism, conspiracy and 2,976 counts of murder in violation of the law of war, one count for each known victim of the Sept. 11 attacks at the time the charges were filed. They could get the death penalty if convicted.
Mohammed, a Pakistani citizen who grew up in Kuwait and attended college in North Carolina, has told military officials that he planned the Sept. 11 attacks “from A to Z” and was involved in about 30 other terrorist plots. He has said, among other things, that he personally beheaded Wall Street Journal reporter Daniel Pearl. In addition to Binalshibh, the other defendants are Walid bin Attash; Mustafa Ahmad al-Hawsawi; and Ali Abd al-Aziz Ali.
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