The death penalty trial of five Guantanamo prisoners accused of plotting the Sept. 11 attacks is so important that it should be televised to the public, defense lawyers argued on Friday.
The issue 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.
The five, 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 — but 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 hijacked plane attacks and to the firefighters, police officers and other "first responders" who gave aid and searched for victims at the crash sites in New York, Washington and Pennsylvania.
In hearings at the remote Guantanamo Bay U.S. Naval Base in Cuba, lawyers for some of the defendants argued that those viewing sites should be opened to the general public. But lawyers for others said the trial should be televised globally to anyone who wants to watch.
"If these proceedings are fair, why is the government afraid to let the world watch?" asked Marine Maj. William Hennessy, an attorney for Walid Bin Attash, a Yemeni accused of training two the hijackers at an al Qaeda camp in Afghanistan.
"The government admits that these are historic proceedings," Hennessy noted.
He acknowledged that the rules give the U.S. 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 Col. James Pohl, did not immediately rule on the request but appeared 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?"
The prosecution said the U.S. public's constitutional right to an open trial had been satisfied by the Fort Meade viewing site, and that no one who wanted to watch the hearings there had 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.
A Pentagon spokesman said that while Defense Secretary Leon Panetta had sole authority to authorize the broadcast of the trials, no one had formally asked him to do so.
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 Dec. 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 the witness to the remote Guantanamo base in eastern Cuba.
Additionally, Trivett said, "There's no right to surprise on either side."
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