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Attorney seeks clearance for 9/11 defendant

Associated Press
by Andrew O. Selsky
June 17, 2008

SAN JUAN, Puerto Rico (AP) — A military attorney for one of the Sept. 11 defendants at Guantanamo Bay predicted on Tuesday the Pakistani would at best see only a sliver of classified evidence and would be convicted in what amounts to "a top secret trial."

Navy Lt. Cmdr. Brian Mizer told The Associated Press he will seek a security clearance for Ali Abd al-Aziz Ali, a nephew and alleged lieutenant of confessed Sept. 11 mastermind Khalid Sheikh Mohammed, but expects it will be denied.

Mizer noted that if al-Aziz lacks a security clearance, his defense team will be unable to share classified evidence with him unless and until the judge allows it to be discussed in open court.

Air Force Brig. Gen. Tom Hartmann, a senior official with the Guantanamo trials, said in a telephone interview that he seriously doubts any of the five Sept. 11 defendants would be issued a security clearance. But Hartmann insisted that they will be able to see all the evidence presented to the jury.

However, some classified information presented to the jury and the defendants may be censored or summarized, Hartmann said, touching on a key element in whether America's first war-crimes trials since the World War II era are seen as fair.

Hartmann has repeatedly said the high-profile military trials will be as fair and transparent as possible. Mizer said such claims are "typical military commission showmanship."

"The government provides the prisoners at GTMO with empty legal guarantees that are devoid of any practical benefit to the prisoner and then proclaims to the world that the trials at GTMO are a model of due process," Mizer said in an e-mail, using the military shorthand for Guantanamo.

Mizer predicted that Aziz, also known as Ammar al-Baluchi, will "likely be convicted in a top secret trial where he has had access to only some of the government's evidence."

Mizer said that on four occasions while defending another Guantanamo detainee, he himself was barred from seeing classified documents the government presented to a military judge, even though the Navy lawyer has security clearance.

"I cannot rebut evidence that I cannot see, and we can lose legal motions based upon evidence that is not available to defense attorneys with the highest levels of security clearance," Mizer said.

Hartmann acknowledged that on rare occasions, defense lawyers might be denied access to classified information presented to the judge, saying that the military trials must "balance national security interests with the accused needing to see the information."

A June 5 arraignment was the first appearance for the five defendants since they were captured, held by the CIA and then moved to Guantanamo in 2006. All said they want to represent themselves. The military judge deferred a decision on whether two of the prisoners — Ramzi Binalshibh and Mustafa Ahmad al-Hawsawi — could reject their attorneys.

Still, Mizer said he intends to see Aziz at the U.S. Naval base in southeast Cuba on Wednesday and give him the form to apply for a security clearance.

"I intend to call the government on this bogus claim that the accused will be able to see the evidence against them," Mizer said.

The judge hearing the Sept. 11 case, Marine Col. Ralph Kohlmann, has not yet set a trial date. All five face the death penalty if convicted of terrorism-related charges.

Aziz is alleged to have sent approximately US$120,000 to the Sept. 11 hijackers for their expenses and flight training, and to have helped nine of them travel to the United States.

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