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Defense lawyers seek to preserve prisons as evidence in 9/11 trial

Defense lawyers for the five accused 9/11 [JURIST backgrounder] conspirators petitioned a US military judge at Guantanamo Bay [JURIST backgrounder] on Monday to preserve the prisons where the defendants were held as evidence. The defendants claim that they were tortured [Reuters report] during their time held in secret CIA prisons. This is one of the many issues that are set to be litigated when pretrial hearings begin Monday at the war crimes tribunal taking place at the Guantanamo Bay US Naval Base in Cuba. Khalid Shaikh Mohammed [JURIST news archive], who is accused of planning the 9/11 plane attacks, is among the defendants set to stand trial. Lawyers for the defendants have requested documents from the White House and Department of Justice (DOJ) that authorize the Central Intelligence Agency (CIA) to move suspected al Qaeda [JURIST news archive] members across borders after the 9/11 attacks and keep them in secret prisons for interrogations. Defense lawyers plan to argue that the defendants were subjected to illegal pre-trial punishment. The prosecution maintains that it will not be using any information in trial that was obtained through torture or other techniques that violate US and international law.

Last week the US Department of Defense (DOD) announced that it will not withdraw charges of conspiracy [JURIST report] against the five accused plotters of the 9/11 terrorist attacks. Earlier in January the chief US military judge at Guantanamo Bay denied [JURIST report] defense motions filed in both the 9/11 military commission trial and the 2000 USS Cole [Navy backgrounder] bombing trial. Defense counsel for accused 9/11 conspirators filed a motion requesting that the court find that the US constitution was "presumed to apply" in the proceedings, and that the prosecution must bear the burden of proving that any particular provision did not apply. Colonel James Pohl ruled that the request presented a nonjusticiable issue because the Commission cannot rule on hypothetical legal questions that do not aver "real and substantial controversy admitting of specific relief" relating to actual historical fact. In a separate case, counsel for accused USS Cole bomber, Abd al-Rahim al-Nashiri [JURIST news archive] filed a motion to dismiss alleged violations of the Military Commissions Act in August 2012 on grounds that the bombing occurred "prior to the commencement of hostilities" between the US and al Qaeda.

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