The military tribunal for the Sept. 11 terrorism case resumed Tuesday without three of the five defendants, the result of a judge's ruling that the men could not be forced to attend the session.
Among those who chose to sit out the second day of a weeklong pretrial hearing is the main defendant, Khalid Sheikh Mohammed. A Navy commander, whose name was not released by the court, said the self-professed terrorist mastermind was taken from his prison cell at the U.S. base in Cuba to a holding cell outside the courtroom. He then chose at the last minute to boycott the hearing.
Mohammed, who has previously said he planned the Sept. 11 attacks, gave no reason for his absence but on Monday he dismissed the military tribunal with scorn, saying "I don't think there is any justice in this court."
The other defendants who chose to sit out the hearing were Saudi defendant Mustafa Ahmad al-Hawsawi and Pakistani national Ali Abd al-Aziz Ali. Neither provided any reason for their absence but a lawyer for al-Aziz Ali had said on Monday that his client's father had recently died and he was grieving for him.
All five defendants face charges that include terrorism and murder for planning and aiding the death penalty if convicted at a trial that is likely at least a year away.
The judge presiding over the case, Army Col. James Pohl, ruled, over the objections of prosecutors, that the defendants have the right to be absent from a weeklong pretrial hearing in a case considered to be one of the most significant terrorism cases in U.S. history.
The chief prosecutor, Army Brig. Gen. Mark Martins, had argued that the rules for the special war-time tribunals known as military commissions required the defendants to attend all sessions of the court.
But lawyers for the men disagreed, and said the threat that they could be forcibly removed from their cells would be psychologically damaging for men who had been brutalized while held during their captivity by the CIA in secret overseas prisons, prior to being taken to Guantanamo in September 2006.
"Our clients may believe that ... 'I don't want to be subjected to this procedure that transports me here, brings up memories, brings up emotions of things that happened to me,'" said Jim Harrington, who represents Ramzi Binalshibh, accused of helping to provide support to the hijackers who crashed planes into the World Trade Center, Pentagon and a field in Pennsylvania on Sept. 11, 2001.
Harrington's statement elicited groans from a small group of family members of Sept. 11 victims who were chosen by lottery to come to Guantanamo to view the proceedings. A few other families watched the proceedings on closed-circuit TV from U.S. military bases in New York, New Jersey, Massachusetts and Maryland.
In the end, the judge, Army Col. James Pohl, ruled that the defendants didn't have to attend the rest of the weeklong session, which was called to hear arguments on 25 pretrial motions on preliminary legal issues. He reserved the right to require their attendance at future hearings and said they would have to attend the actual trial.
The judge is expected to begin hearing arguments Tuesday on broad security rules for the case, including measures to prevent the accused from publicly revealing in testimony what happened to them in the CIA prisons. Prosecutors have asked the judge to approve what is known as a protective order intended to prevent the release of classified information during trial.
Lawyers for the defendants say the rules, as proposed, will hobble their defense. The American Civil Liberties Union, which has filed a separate challenge, says the restrictions are overly broad and would improperly keep the public from hearing the men speak about their captivity.
The U.S. government has acknowledged that the defendants were subjected to "enhanced interrogation techniques" before being transferred to Guantanamo in 2006, which in some cases included the simulated drowning method known as waterboarding.
Mohammed and his four co-defendants face 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.