FORT MEADE, Md. – Defense attorneys for Khalid Shaikh Mohammed and four other accused accomplices in the terrorist attacks of Sept. 11, 2001, asked a military tribunal judge in Guantánamo Bay, Cuba, on Tuesday to let them stay in prison with their clients for 48-hour periods every six months. But military prosecutors called that request unreasonable, saying the defense should be allowed to visit just once for two hours.
"The idea that they are entitled to walk around for 48 hours in their clients' shoes is unsupported by anything," said Maj. Robert McGovern of the Army, a member of the prosecution team.
The requested visit was one of several issues raised at a pretrial motions hearing that focused on information that could become a central focus if the defendants are eventually convicted and they face the possibility of a death sentence. A closed-circuit video feed of the hearing was shown to reporters at the base and at Fort Meade. While all five defendants were present on Monday, none chose to attend court on Tuesday.
Defense attorneys urged the judge overseeing the case, Col. James Pohl of the Army, to allow their clients lengthy, repeated visits with fewer restrictions on whom they could speak with and on the notes and diagrams they can take so that they can document their clients' lives and behavior in custody. Such information, the lawyers said, could help develop mitigating information against execution.
"If we get to sentencing, we need to articulate mitigating factors, particularly the defendants' adaptions to conditions of confinement," said Cmdr. Walter Ruiz of the Navy, a defense lawyer for one of the detainees, Mustafa Ahmed al-Hawsawi.
Commander Ruiz acknowledged security and logistical concerns and suggested that it would be acceptable to be in an adjoining cell, but said the defense needed to see "sleeping cycles and what goes on at night." The defense is also seeking correspondence with the Red Cross about their clients' confinement issues.
Colonel Pohl appeared sympathetic to the defense, pressing Major McGovern skeptically about the necessity of the government's proposed limitations on the visit, but did not rule on Tuesday.
While all five defendants were present on Monday, none chose to attend court on Tuesday.
Colonel Pohl also put off consideration of another high-profile motion: a defense request that he order the government to preserve evidence at any Central Intelligence Agency "black site" prison where their clients were held and interrogated for several years.
Before the tribunal can take up that motion, Colonel Pohl must first decide whether the defendants could be excluded from the courtroom during the classified discussion. Joanna Baltes, a prosecution lawyer, said the detainees could be removed from pretrial evidentiary proceedings if the classified information will not be used as "affirmative evidence" against them. Defense attorneys object to excluding their clients from any aspect of the case.
"I'm not sure how we could have a closed session without the accused until there is a ruling on that issue," said Colonel Pohl, who asked the lawyers to quickly draft briefs on the question.
The Bush administration's original version of military tribunals allowed prosecutors to introduce classified evidence that would be kept secret from defendants. After the Supreme Court struck down those tribunals, Congress enacted statutes in 2006 and 2009 resurrecting and overhauling the system. One of the changes lawmakers made was to outlaw secret evidence; the statutes explicitly authorize the exclusion of defendants from the courtroom only if they disrupt the proceedings.
But the motion over the issue of secret C.I.A. prisons may raise a new wrinkle, because the chief prosecutor, Brig. Gen. Mark S. Martins, has said that he will not use evidence "polluted" by torture in the trial and that he has enough evidence from sources other than the C.I.A. Instead, it is the defense that wants to gather black-site information in order to argue at any sentencing that their clients should be spared the death penalty.
The hearing also opened with a brief discussion of an unexplained blackout on the courtroom feed on Monday. Colonel Pohl had appeared angry that the feed was cut, saying no one had said anything classified and demanding answers about who had control over the censorship button.
On Tuesday, Colonel Pohl appeared somewhat mollified, although he did not explain what had happened. But he emphasized that only he, as the judge, could authorize closing the courtroom to public viewers and disclosed that when the button was hit, a defense lawyer had read the unclassified title of a motion "to preserve evidence of any existing detention facility."
This article originally appeared in The New York Times.