Guantanamo Naval Base, Cuba – Prosecutors on Tuesday asked the judge presiding over the Sept. 11 military trial to schedule public depositions of 10 victim family members whose age and health could prevent them from making it to the actual trial, which may be several years away.
Ed Ryan, a longtime federal prosecutor, told Army Col. James Pohl that the government wants the depositions to take place in open court at the Camp Justice complex, in front of the five defendants and their lawyers.
The government is seeking to hold the extraordinary depositions – which would include testimony by 83-year-old Lee Hanson, who lost his son, daughter-in-law and grand-daughter on Sept. 11 – during the two-week session scheduled for October, just weeks before the Presidential election.
Defense attorneys acknowledged the need to preserve testimony through depositions but sharply opposed the idea of a public hearing, which they said would be both unprecedented and unfairly prejudicial to their clients. All defendants face the death penalty for their alleged roles in planning and facilitating the attacks.
The accused mastermind of the plot, Khalid Sheikh Mohammed, surprised the courtroom by directly addressing Pohl at the end of oral arguments on the issue. “This is a nuclear bomb in the world,” he said at one point, according to the Arabic to English translation. The translation stopped as Pohl repeatedly ordered Mohammed to stop talking.
“One more word and you’re out,” Pohl said before giving Mohammed’s lawyers time to talk to their client.
Lead defense attorney David Nevin told Pohl that his client was confused by the arguments over the depositions. Nevin said that the team’s interpreter could have facilitated understanding of the legal issues for his client but was not in court because he has lost a necessary security clearance. (This issue has frustrated the defense team for several months.)
Pohl countered that Mohammed nevertheless had to speak through his lawyers.
“He doesn’t just blurt it out in open court,” Pohl said.
In a meeting with reporters after the hearing, Nevin elaborated that his client was upset because Ryan's arguments – which were at times emotional in their references to the Sept. 11 attacks – felt almost like "closing arguments" for a trial. During the argument, Pohl overruled objections made by Nevin and another defense attorney. Nevin described Ryan's arguments as both compelling and effective.
Nevin said he believed his client's "nuclear bomb" statement was referring to violent acts by the United States, such as the use of atomic weapons against Japan in World War II.
Defense attorneys have estimated that a trial is anywhere from five to 10 years away. The commission’s chief prosecutor, Army Brig. Gen. Mark Martins, has repeatedly declined to give an estimate, but his team’s decision to seek the public depositions of aged and unwell witnesses acknowledges the long road ahead.
Victim family members are chosen by lottery to travel to sessions at Guantanamo Bay with prosecutors, defense lawyers, court staff and other observers. The family members in the viewing gallery of Courtroom II this week are not among the group of 10 selected for deposition. A few minutes into Ryan’s presentation, a screen was pulled across the victim family member side of the gallery to provide privacy.
Ryan began his presentation by contending that the government’s request satisfied commission rules that the depositions be “due to exceptional circumstances” and “in the interests of justice.” Each of the proposed witnesses is over 65. (Three defense attorneys also are over 65, including Nevin, who is 67.) Ryan said prosecutors became interested in conducting pretrial depositions in the wake of two recent deaths of “victim impact witnesses” his team had planned to call.
The testimony will be used in the sentencing phase of the trial if any of the defendants are convicted, though Ryan added that one proposed deponent may also be a “fact witness” because he received a call from one of the hijacked planes.
Ryan conceded that finding a fair and impartial jury of military officers will be a challenge for the judge. But he doubted that public depositions would seriously contribute to that problem given all the information available in books, movies and media coverage of the Sept. 11 attacks over the past 15 years.
“It is one of the most infamous crimes in history,” Ryan said.
Ryan argued that the commission's requirement for a public trial supported holding public pretrial depositions. The defense questioned that analysis, particularly given that the depositions may, in fact, never make it into the trial. Ryan himself conceded that the admissibility of these statements will have to be decided at a later date.
Both Nevin and Cheryl Bormann, the lead attorney for Walid bin Attash, argued that such depositions typically take place at a location that is physically convenient for the witnesses – whether in an office, a courtroom, someone's home, a hospital room or a jail cell. And, Nevin added, defense attorneys will likely need to take their own depositions to prepare for trial.
Ramzi bin al Shibh's lead attorney, James Harrington, told Pohl he supported the idea of doing the depositions at Guantanamo Bay, in the presence of the accused, as long as the hearings are closed. He said that doing so would likely be better procedurally given that the defendants could later decide to represent themselves.
He claimed Ryan was being contradictory in his argument that the obvious difficulty of finding an impartial jury meant that public testimony from victims would not contribute much to the problem.
“Why do we want to add to that?” Harringon asked.
He also questioned taking the emotional testimony just a few weeks before the Presidential election.
“The timing of this motion is just incredible,” Harrington said.
Ryan told Pohl that the government merely wants to get the ball rolling on this process “as soon as possible.”