GUANTANAMO BAY NAVY BASE, CUBA -- The military judge in the Sept. 11 trial abruptly canceled pretrial hearings for the morning on Wednesday after lawyers announced that some of the accused terrorists were told to choose between meeting with International Red Cross delegates or going to court.
An exasperated Army Col. James L. Pohl, the judge, declared the men accused of the Sept. 11 attacks faced a "Hobson's choice."
"Apparently that's beyond the ability of people to deconflict things," Pohl also said, noting that both this week's court hearing and the visit by the delegates who link prisoners with family were scheduled well in advance.
Pohl set the dates of this year's hearings last year and has already designated six sets of hearings for 2016. The ICRC, meantime, visits quarterly, in coordination with the Pentagon and prison that now holds 107 detainees.
Red Cross delegates got to Guantánamo Nov. 30, said a prison spokesman Air Force Lt. Col. Michael J. Meridith, who referred questions about the conflict to the Red Cross, saying "they are the lead in scheduling" with input from the prison.
"The ICRC has no intention to deprive detainees of any legal process and we strive to offer a maximum of flexibility when visiting detainees," said Red Cross spokeswoman Anna Nelson. She added the "timing and modalities" of visits are part of the "bilateral and confidential dialogue" between the ICRC and the Department of Defense.
Red Cross delegates routinely bring the captives word from family at the meetings.
The conflict became evident after an anonymous Army captain who serves as a lawyer at Guantánamo secret Camp 7 prison announced in court that one of the alleged Sept. 11 plotters, Mustafa al Hawsawi, 47, refused to sign a waiver declaring he was voluntarily missing Wednesday's court session -- something he routinely does.
Hawsawi, it turned out, had a scheduled 11 a.m. meeting with Red Cross delegates -- who also can protest prison conditions to the Pentagon -- and the Army lawyer told him to choose between the two.
All five men awaiting a death-penalty tribunal as alleged conspirators in the attacks that killed nearly 3,000 people on Sept. 11, 2001, came to court Tuesday for hearings expected to continue through Friday. On Monday, the trial judge met exclusively with prosecutors and defense attorneys -- but no Red Cross meetings were schedule for that day.
The alleged mastermind of the 9/11 attacks, Khalid Sheik Mohammed, 50, meantime, voluntarily skipped the court hearing on Wednesday to meet with the Red Cross at 4 p.m. An alleged plot deputy, Walid bin Attash, 36, however, made the other choice. He was skipping a 1:30 p.m. Red Cross meeting because the court was hearing testimony on the detainees' request for a court order forbidding female escort guards from touching the five defendants in consideration of their Islamic traditions, a motion Bin Attash initiated.
At one point, Army Brig. Gen. Martins, the chief prosecutor, argued that Hawsawi should be compelled to come to court -- briefly raising the specter that Army guards assigned to a Forced Cell Extraction team would tackle and shackle him and bring him to court.
That has not been known to ever happen to any of the Sept. 11 accused since their September 2006 arrival at Guantánamo. Nor has there ever been a known situation when the Red Cross or prison offered meetings with a captive that conflicted with a court date.
"We're not minimizing the importance of International Committee of the Red Cross discussions with the detainees," Martins told the judge. "This is a Law of War facility."
Pohl implored the general to use his influence to instill in the prison "more of a spirit of 'Let's work this stuff out,' so we don't waste our time."
The Sept. 11 defendants were held by the CIA without access to the Red Cross or attorneys from 2002 or 2003 until 2006 and interrogated with "enhanced interrogation techniques" that President Barack Obama has since banned. Sometimes ICRC delegates, in collaboration with the U.S. military, take photos of the captives for family back home. No photos were being take this trip.
But alleged plot deputy Bin Attash, who chose to attend court rather than meet with the Red Cross Wednesday, had been scheduled to talk with family in Saudi Arabia over the weekend on a special stop-and-go Skype-style conversation that allowed for monitoring by U.S. authorities.
It was to be his first video contact from U.S. detention, and followed the death of his mother in September. But it was canceled for technical reasons, said his attorney Maj. Michael Schwartz.
Schwartz noted by email that an Army officer testified Tuesday "that the government respects detainees' rights and does not force detainees to choose between two rights. Today, we see that Mr. Bin Attash was forced to choose between meeting with he ICRC and attending a court proceeding where he is on trial for his life. Welcome to Guantánamo."