10-15-2012By Daphne Eviatar
Senior Counsel, Human Rights First's Law and Security Program
Cross-posted from The Huffington Post
Starting Monday, Khalid Sheikh Mohammed and his four alleged September 11 co-conspirators are scheduled to appear in a Guantanamo Bay courtroom for hearings on a slew of key questions related to their upcoming trial — again. Among the issues scheduled for argument are whether the public has a right to know what happened to the men over years in secret CIA “black sites” and whether the U.S. Constitution applies at Guantanamo Bay.
On Thursday, military Judge James L. Pohl denied defense lawyers’ request to delay next week’s hearings, based on “professional assessments as to the safety” of the defense counsel office. The court hasn’t made publicly available the defense lawyers’ views on the matter, contained in a separate court filing.
The last time this set of hearings was scheduled, back in August, a cut cable line caused an internet outage. Then Hurricane Isaac blew in. These are the “reformed” military commissions that Brigadier Gen. Mark Martins, the Gitmo Chief Prosecutor, has promised will be fair, transparent and utterly professional.
So far, there’s plenty of disagreement on those points. Transparency will be a big issue this week, if the hearing goes forward. Not only the detainees’ defense lawyers but 14 news organizations and the ACLU are expected to argue that the government can’t continue to muzzle the defendants by claiming all statements about their treatment in U.S. custody are classified. That’s especially important in a death penalty case, where the prisoners’ treatment in custody could be considered “mitigating evidence” — evidence that weighs against their being executed.
Prosecutors also want to keep secret information that’s not classified but, the government says, would nonetheless be “detrimental to the public interest” if released. The prosecutors have also secretly asked the judge for other rulings, but the documents filed with the court aren’t being made publicly available, so it’s not clear what the government is requesting.
The other critical question to be argued is whether the U.S. Constitution even applies at Guantanamo Bay. You would think that question would have been resolved in the nearly 11 years since President George W. Bush first created the military commissions. (This is their third incarnation.) But you’d be wrong. No court has ever ruled definitively whether and to what extent the U.S. Constitution applies at Gitmo, other than to say that the detainees there can’t be denied the Constitutional right to habeas corpus: that is, the right to challenge their detention in a U.S. federal court.
Although Bush administration lawyers five years ago argued the Constitution did not apply, prosecutors now don’t say one way or another. They insist the judge just shouldn’t decide. The defense lawyers claim that’s fundamentally unfair: if they don’t know what legal standards apply, they can’t possibly provide a meaningful legal defense for their clients. In their view, the defendants should be entitled to full Constitutional rights, following the Supreme Court’s 2008 reasoning in
Boumediene v. Bush, the case that established Guantanamo detainees’ habeas rights.
This week, we may finally get some answers to these questions. Or not. Set aside the rats, the mold, the hurricane and the internet outages, and consider that it’s taken 11 years just to get to the pre-trial hearing stage in this case. It’s probably best not to expect too much.