Janet Hamlin / AP
Merrilly Noeth, a relative of a victim of the Sept. 11 attacks, is pictured watching from behind sound-proof glass on the second day of the Military Commissions pretrial hearing for the five men accused of planning the attacks, at Guantanamo Bay U.S. Naval Base in Cuba, on Tuesday. Only two of five suspects were present in the second day of the proceedings--Yemenis Walid bin Attash and Ramzi Binalshibh.
By NBC News' Courtney Kube and wire services
The military tribunal of 9/11 terrorism suspect Khalid Sheikh Mohammed and four co-conspirators resumed in Guantanamo Bay, Cuba?on Tuesday, with just two of the five suspects present, a day after the judge agreed that they could not be forced to attend this week?s hearings.
The men are accused of planning and providing logistical support to the the Sept. 11, 2001 attacks by hijackers who crashed planes into the World Trade Center, the?Pentagon and a field in Pennsylvania, killing nearly 3,000 people.
Mohammed and the other four who are portrayed as his underlings face charges that include terrorism and murder, and they could be sentenced to death if convicted.
This week?s proceedings hear arguments on 25 pretrial motions dealing mainly with privacy issues and the detainees' rights, and set the ground rules for the trial which is likely at least a year away.
Tuesday?s hearing launched into one of the thorniest subjects that the court must iron out before the trial ? whether the suspects can talk about their detention and harshly interrogated in secret CIA prisons prior to their transfer to Guantanamo Bay in 2006.
Prosecutors have asked the judge to approve what is known as a protective order intended to prevent the release of classified information during trial.
The defense argued that the government gave up the right to keep interrogation tactics classified when they exposed the defendants to the process.
They mainly object to one portion of the order, which says that, "Any statements made by the accused are presumptively Classified Information."
The defense teams believe this is too broad a statement, and that there is no such thing as "presumptive classification" -- that information is classified or not.
The judge, Army Col. James?Pohl, pushed back on their argument, saying that both sides agree with the definition of what is classified and what is not, and that the attorneys are required not to disclose new information they deem could be classified.
"We're not talking about what you had for lunch today," Pohl said.
But an attorney for Ramzi Binalshibh argued that issues just that mundane do become a hindrance.
Pohl moved on from the issue to hear First Amendment arguments from an attorney representing news organizations seeking greater access to court proceedings. It was unclear when he would issue a ruling on the question of the protective order.
Last minute boycott
All five of the men were at Monday?s hearings, but on Tuesday, Mohammed, Saudi defendant Mustafa Ahmad al-Hawsawi and Pakistani national Ali Abd al-Aziz Ali all bowed out. Walid Bin Attash and Ramzi Binalshibh, both from Yemen, did attend.
Mohammed, who has previously claimed he was the mastermind of the terrorist attacks, was taken from his cell at the U.S. base in Cuba to a holding cell outside the courtroom, then chose to boycott at the last minute, said a Navy officer whose name was not released by the court for security reasons.
He did not give a reason for sitting out the Tuesday hearing, but on Monday he dismissed the military tribunal with scorn, saying "I don't think there is any justice in this court."
Pohl ruled Monday that the defendants have the right to be absent from this week's pretrial hearings, but said they would have to attend the trial.
The chief prosecutor, Army Brig. Gen. Mark Martins, had argued that the rules for the special war-time tribunals known as military commissions required the defendants to attend all sessions of the court.
But lawyers for the men disagreed, arguing that the threat of being forcibly removed from their cells would be psychologically damaging for men who had been brutalized while held during their captivity by the CIA.
Read more on Monday's hearing
The U.S. government has acknowledged that the defendants were subjected to "enhanced interrogation techniques" which in some cases included the simulated drowning method known as waterboarding.
"Our clients may believe that ... 'I don't want to be subjected to this procedure that transports me here, brings up memories, brings up emotions of things that happened to me,'" said Jim Harrington, who represents Binalshibh.
Harrington's statement elicited groans from a small group of family members of Sept. 11 victims who were chosen by lottery to view the proceedings at Guantanamo.? A few other families watched the proceedings on closed-circuit TV from U.S. military bases in New York, New Jersey, Massachusetts and Maryland.
Also on Tuesday, the court dealt with what the detainees are allowed to wear in court.
Attorney for Mohammed, U.S. Army Capt. Jason Wright, explained that his client wants to wear a military-style camouflage vest over his traditional attire. He argued that Mohammad wore military-style clothing when fighting against the Soviets for the U.S. government in Afghanistan, so he has a right to do so in this courtroom, as well. Not allowing him to wear it undermines his presumption of innocence, the attorney argued.
Judge Pohl said that the defendants would not be permitted to come into court in a complete U.S. Army uniform, but, he would not forbid all camouflage.
Hearings postponed
The five men were arraigned in May, and subsequent hearings were pushed back for various reasons.
A hearing in July was postponed to allow the defendants to observe the holy month of Ramadan. Hearings in August were delayed when an Internet outage left the lawyers unable to access their electronic legal documents. That hearing was later canceled altogether as Tropical Storm Isaac approached.
A hearing scheduled for late September was also delayed because the work space for the defense lawyers was shut down due to a rat infestation and mold, which lawyers claimed were making them sick, Reuters reported.
Pohl ruled on Oct. 5 there would be no further postponements to the hearings.
An earlier attempt to try the five men at Guantanamo ended when the Obama administration tried to move the trials to New York City, where two of the hijacked planes slammed into the World Trade Center.
That was abandoned under pressure from Congress and from New Yorkers, and the charges were re-filed in Guantanamo.
NBC News' Kari Huus and The Associated Press contributed to this report.
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