GUANTANAMO BAY U.S. NAVAL BASE, Cuba The death penalty trial of five Guantanamo prisoners accused of plotting the September 11, 2001, attacks on the United States is so important that it should be televised globally, defense lawyers argued on Friday.
The issue of televising the proceedings was discussed on the final day of a week-long pretrial hearing for the alleged mastermind of the hijacked plane attacks, Khalid Sheikh Mohammed, and four co-defendants accused of providing money, training and travel assistance to the hijackers.
"If these proceedings are fair, why is the government afraid to let the world watch?" asked Marine Major William Hennessy, a U.S. military lawyer defending Walid Bin Attash, a Yemeni accused of training two of the hijackers at an al Qaeda camp in Afghanistan.
"The government admits that these are historic proceedings," Hennessy added even as the military judge in the case sounded skeptical about televising the trial and the prosecution said the trial should not become "reality TV."
Defense Secretary Leon Panetta has sole authority to authorize the broadcast of the trials. A Pentagon spokesman said that no one has formally asked him to do so.
The five defendants, who could face execution if convicted of charges that include murder and terrorism, skipped Friday's session after the judge declined their request for a recess on the Muslim holy day.
Currently, the public can watch closed-circuit broadcasts of the Guantanamo war crimes court proceedings only at a 200-seat theater at Fort Meade, a U.S. Army base in Maryland.
Closed-circuit viewing sites at a handful of other military bases in the eastern United States are restricted to relatives of the 2,976 people killed in the September 11 attacks and to the firefighters, police officers and other emergency responders who gave aid and searched for victims at the crash sites in New York, Washington and Pennsylvania.
In hearings at the remote U.S. naval base at Guantanamo Bay, Cuba, lawyers for some of the defendants asked the judge to open those viewing sites to the general public, which the judge declined to do. Lawyers for other defendants said the trial should be televised globally to anyone who wants to watch.
Hennessy, the defense lawyer, acknowledged that the rules give the defense secretary sole authority to decide whether to televise the trials, but suggested the judge could make the decision in the interests of ensuring the accused get a fair trial.
The judge, U.S. Army Colonel James Pohl, did not immediately rule on the request but seemed skeptical.
"I can look at any rule, any statute, and say 'I wouldn't have done it that way.' Is that what you want a judge to do, really?" he asked Hennessy. "I would have to conclude that the lack of public television means the accused is getting an unfair trial?"
'NOT REALITY TV'
The prosecution said federal court trials in the United States are never televised.
"This is a court of justice. It is not reality TV," said the chief prosecutor, Army Brigadier General Mark Martins, adding that people's behavior sometimes changes for the worse when cameras are present.
The prosecution said the right to an open trial provided by the U.S. Constitution has been satisfied by the Fort Meade viewing site, and that no one who wanted to watch the hearings there has been turned away.
Officials at Fort Meade have said during previous hearings that only a few dozen people turned up to watch, and that most of them were journalists or lawyers assigned to other Guantanamo cases.
During the week-long hearing, the judge had been scheduled to hear a defense request to compel testimony from a former CIA official about the agency's interrogation of the defendants at secret overseas prisons where they claim they were tortured.
That was delayed until the next session, tentatively set to begin on December 3, pending resolution of a dispute about the rules that govern defense requests for witnesses.
The defense lawyers say the deck is stacked against them because the prosecution is allowed to decide whether the witnesses and experts requested by the defense are relevant and necessary.
The judge gets the final say in the matter, but the defense lawyers say the system forces them to reveal their trial strategy, tipping off the other side in what is an adversarial process.
Prosecutor Clay Trivett said that if the prosecutors know what testimony the defense is seeking, they can sometimes stipulate to the facts in question, eliminating the expense of bringing a witness to the Guantanamo base.
Trivett also said, "There's no right to surprise on either side."
(Editing by Will Dunham)