The lawyers said in a letter to the president that the secrecy that cloaks the treatment of their clients in CIA custody is being used to cover-up what they say was torture and is now preventing them from getting a fair trial. They urge him to order the declassification of what is known as the rendition, detention, and interrogation program so that it can be discussed in open court as they mount their defense.
"Quite simply, the classification of the RDI program is suppressing evidence, suppressing the truth, and ultimately will suppress any real justice," lawyers for all five defendants said in the letter.
The letter's release came at the close of four days of pretrial hearings that repeatedly turned to allegations that the men were mistreated. Lawyers for the two of the men, for example, sought permission to take photos of scars they say came from abuse.
That focus on alleged mistreatment angered a small contingent of people who lost relatives in the Sept. 11 attack and attended the session as observers. Richard Costanzo, whose sister — Vicki Costanzo Yancey of Springfield, Virginia — was killed on the hijacked plane that was crashed into the Pentagon, said he found it hard to listen to the defense lawyers.
"To basically put America on trial instead of these five men is just outrageous," Costanzo said. "We're not here to try to change America. We're here to get justice and that's what I hope we can do soon."
Five Guantanamo prisoners face trial by military commission on charges that include terrorism, hijacking and nearly 3,000 counts of murder for their alleged roles planning and providing assistance to the Sept. 11, 2001, hijacking plot. They could get the death penalty if convicted. The prosecution proposed Friday that the trial start in January 2015 but defense lawyers say it will be impossible to complete the pretrial process by then.
The White House declined comment on the letter though Obama has said previously that the U.S. is committed to following the global Convention Against Torture. In recent years, U.S. officials have said details of what's known as the RDI program have been withheld to protect intelligence sources and methods. A great deal of information sought by the defense and others is contained in a Senate Select Committee report on CIA activities that members of Congress are seeking to release.
Earlier in the week, the chief prosecutor for military commissions, Army Brig. Gen. Mark Martins, told reporters at the U.S. base in Cuba that careful consideration has been given to what information can be disclosed and the report's release has no bearing on whether the accused in the Sept. 11 case can get a fair trial.
"It's not as simple as just sort of deciding 'Let's just turn over classified information,'" Martins said. "It's got to be based on the law related to how we deal with that information in a criminal proceeding."
In both the letter and during part of this week's pretrial hearing in Guantanamo — the seventh round of hearings since their arraignment in May 2012 — lawyers for the defendants argued that the government's insistence on keeping details of the RDI program classified is hobbling defense efforts in what is often portrayed as the most complex criminal trial in U.S. history.
Lawyers say keeping their treatment a secret violates the Convention Against Torture, a global treaty ratified by the U.S. in 1994, because it denies them the right to complain about the harsh interrogations they endured in the CIA's network of overseas prisons before they were taken to Guantanamo in September 2006.