Lawyers for Guantanamo Bay detainees accused of the 9/11 attacks said Tuesday their defendants' rights were violated because they are prevented from open discussion of alleged mistreatment in secret prisons.
Speaking at a hearing in Guantanamo as the five detainees listened, lawyers for the men asked for the death penalty to be eliminated as a possible sentence, in light of alleged torture the inmates had undergone while being held by the United States, before their 2006 transfer to Guantanamo.
Detainees could not file complaints under the UN Convention against Torture, their lawyers said, because their treatment in US detention was a classified matter.
"You have the power to dismiss the death penalty or dismiss these charges because of the obstacles we face in this case," said Walter Ruiz, a lawyer for detainee Mustafa al-Hawsawi.
The UN Convention against Torture "gives certain rights" to the accused, Ruiz explained.
But "those rights do not exist, certainly not in front of this commission," he argued.
The self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed, "was subjected to waterboarding for 183 sessions," began lawyer Jason Wright, who represents the Pakistani defendants.
But Wright was immediately interrupted by Judge James Pohl, who said certain aspects of the prisoners' treatment will be dealt with only in closed-door sessions, because they involve classified information.
The order prompted an angry retort from lawyer Cheryl Bormann, who said the defense team was consistently coming up against "a brick wall because of the classification issue."
"You can't gag somebody about talking about torture and then want to kill them," she argued.
The accused face the death penalty if convicted of plotting the attacks on New York and Washington 12 years ago, which left nearly 3,000 people dead.
One after another, the lawyers said a court ruling protecting the secrecy of their detention in secret CIA prisons "violated the Convention against Torture."
But prosecutor Clay Trivett argued that the case was about "the summary execution of 2,976 people," not torture.
If the defendants felt they were "mistreated in US custody" they could file a complaint in federal court, he said.
"Mr. Mohammed has a right to complain to the US, to Pakistan and any complicit state," his lawyer argued.
And al-Hawsawi's lawyer said "Saudi Arabia wants to talk to him. He's their citizen and the US government won't allow that to happen."
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the UN General Assembly in 1984 and came into force three years later. The United States ratified the convention in 1994.
Arguing that the document "should anyway apply in front of the military commission," the lawyers asked the judge to allow testimony from international experts, including former UN special rapporteur on torture Manfred Nowak, at the tribunal.
"Some aspects require some knowledge of international law," said James Connell, lawyer for Mohammed's nephew, Ali Abd al-Aziz Ali, also known as Ammar al-Baluchi, in arguing for the experts to be brought in.
But the US government said it would oppose bringing experts to the hearings, saying that "everyone should be able to argue whether the convention against torture is relevant in front of this commission."
And the judge emphasized he didn't have the power to "order somebody to leave the US to come to Cuba" to testify before the special military tribunal, at the US naval base at Guantanamo Bay.
The lawyers had earlier protested against new violations in their "privileged" communications with their clients, alleging continuing searches of the inmates' legal mail in their cells, despite a judge's order forbidding it.
Preliminary hearings began in May 2012, but a date for the trial has yet to be set.