The entrance to the Detention Center at Guantanamo Bay, Cuba. Photo by Ricky Zipp/Medill News Service
GUANTANAMO BAY, Cuba -- The 26th round of pretrial hearings for Khalid Sheik Mohammed, the accused orchestrator of the Sept. 11 terroist attacks, and four other accused conspirators begin Monday at U.S. Naval Station Guantanamo Bay.
Attorneys for Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and Mustafa Ahmad al Hawsawi said the primary focus of this week's hearing is whether the Military Commission Court has jurisdiction over the men. They will argue that the United States wasn't legally at war with al-Qaida when the 2001 attacks occurred, so the men can't be tried by a military court.
But before that argument can be made, the court will consider what James Connell, defense attorney for al Baluchi, refers to as the "mystery motion" filed against three of the defendants.
Mohammed, al Baluchi, Hawsawi and two others -- Walid bin Attash and Mohammed bin Attash -- face the death penalty if found guilty of charges related to the 9/11 attacks.
Walter Ruiz, defense attorney for al Hawsawi, speculated that the motion addresses "a referral having to do with security clearance issues." He said if so, it would be "inappropriate" and could lead to the severing of al Hawsawi's case from the other four defendants.
"You can't have it both ways," Ruiz said. "Either you're going to have a joint prosecution, where you try these defendants jointly and you provide information...to all of the accused, or you don't."
The "mystery motion" will be followed by arguments regarding the return of laptops that were seized from the five defendants in October on suspicion that the men were discussing how to tamper with them, and the discovery of contraband, Ruiz said.
The laptops were provided to help facilitate preparation for the trials, such as a digital storing of legal documents. Without them, Ruiz said he is prepared to put a motion in for abatement, which could cause the pretrial proceedings to cease.
"They have absolutely no evidence whatsoever... that [al Hawsawi] has, in any way, shape or form, tampered with his computer," Ruiz said, adding that the commission has evidence of tampering against other defendants.
The prosecution is requesting a forensic investigation, Ruiz said.
If that is settled, Army Col. James Pohl, chief of the military commission judiciary, will hear al Hawsawi's and al Baluchi's cases separately. This week's hearing is likely to focus on al Hawsawi with al Baluchi's arguments most likely postponed to next year, Connell said.
"The personal jurisdiction question comes down to three basic questions," Connell said. "Did a person participate in hostilities against the United States? Did a person materially support hostilities against the United States? Or, was a person a member of al-Qaida at the time of their offense?"
The questions, Connell said, depend on the commission's determination of when the United States was considered to be in hostilities with al-Qaida.
Ruiz said, "The burden is on the prosecution to establish that we were in fact in a state of hostilities, or war, for lack of a better term. We think that it's going to be pretty difficult for them to do."
He argued that a hostility that would be governed by the laws of war would not include "sporadic" attacks that happened over a long period of time, but prolonged engagements by a large number of military forces.
Four witnesses called by the prosecution are scheduled to testify about when hostilities - defined by the 2009 Military Commissions Act as "any conflict subject to the laws of war" - between the United States and al-Qaida began.
Al Hawsawi and al Baluchi are the only defendants who are part of the motion.
All five defendants in the 9/11 case were arraigned in 2009 and pretrial proceedings began in 2012. Connell said that al Baluchi's defense team is planning for the trial to begin in 2020 at the earliest.