GUANTANAMO BAY U.S. NAVAL BASE, Cuba Lawyers defending the Guantanamo prisoners accused of plotting the September 11 attacks sought permission on Tuesday to spend 48 hours in the top-secret prison where the alleged al Qaeda conspirators have awaited trial for more than six years.
"You want to sleep with your client?" Army tribunal judge Colonel James Pohl asked one of the lawyers during a hearing, provoking snickers in the courtroom at the Guantanamo Bay U.S. Naval Base in Cuba.
Pohl said he had not intended to be flippant but was trying to pin down whether the military and civilian defense lawyers were asking to sleep on cots in their clients' cells. The five defendants, who skipped their pretrial hearing on Tuesday, are accused of training and aiding the hijackers who are accused of killing 2,976 people in the United States in 2001.
They are housed in "Camp 7," a maximum-security detention facility reserved for captives previously held in secret CIA prisons overseas. They are segregated from the general prisoner population in the facility, whose very existence was not publicly acknowledged until more than a year after their transfer to Guantanamo in 2006.
Navy Commander Walter Ruiz, a defense attorney for alleged al Qaeda money courier Mustafa al Hawsawi, said a two-day visit was needed to get an intimate understanding of the conditions of confinement.
Defense lawyers said harsh conditions could constitute illegal pretrial punishment, a potentially mitigating factor that could spare the defendants from the death penalty if they are convicted of war crimes that include terrorism, hijacking and attacking civilians. The lawyers want a 48-hour visit, plus follow-up visits every six months.
Prosecutors did not object to letting the defense into Camp 7 but said a two-day visit would be unduly disruptive. They proposed instead that the defense lawyers be allowed a one-time visit, during which they would not be allowed to speak to anyone except the personnel conducting the two-hour tour.
The offer was ridiculed by Navy Commander Kevin Bogucki, who represents Ramzi Binalshibh, a Yemeni defendant accused of helping the hijackers enroll in flight training schools.
"It calls to mind the jungle cruise at Disneyland," Bogucki said, referring to the theme park ride where visitors are loaded onto boats that glide past elephants that are in fact mechanical imitations programmed to spout water on cue.
The judge did not immediately rule on the issue. But he did shed a glimmer of light as to who cut the audio-visual feed that provides limited public access to the hearings during Monday's session.
During all hearings involving former CIA captives, spectators watch the proceedings from behind a soundproof glass wall at the rear of the courtroom. They hear the sound on a 40-second delay, through a feed that also provides sound and video to journalists in the Guantanamo press center and to a couple of closed-circuit viewing sites on the U.S. East Coast.
A court security officer seated near the judge controls a button that muffles the feed with static when secret information is disclosed.
But it was someone outside the courtroom who killed the sound for a couple of minutes when David Nevin, a lawyer for the alleged mastermind of the hijacked plane plot, Khalid Sheikh Mohammed, asked if the lawyers and judges should meet in closed session before considering a defense request to preserve the secret CIA prisons where the defendants were formerly held.
The judge was angry that someone had censored the hearing without his permission and defense lawyers said they were shocked to learn someone outside the courtroom was listening in, with a finger on the kill switch.
Pohl said there had been no valid basis for the interruption because Nevin was merely reading the title of a publicly released court motion. He told the lawyers that an agency he did not identify was monitoring the closed-circuit feed to make sure secrets were not disclosed.
The request to preserve the CIA prisons will not be heard until a February court session because the judge and lawyers are still debating whether the defendants can be present for a discussion of those facilities where they were formerly held.