10-16-2012By Daphne Eviatar
Law and Security Program
This article was crossposted from Huffington Post.
As a long row of camouflage-clad U.S. soldiers lined the courtroom wall, lawyers for the five September 11 defendants argued this morning that their clients should also be allowed to wear camouflage or other military-style clothing in the courtroom if they wanted to. The Guantanamo Joint Task Force Commander had banned any such outfits in the courtroom, insisting they created security concerns.
Defense lawyers did an admiral job of explaining that military uniform-type clothing should be allowed because part of the charges against the defendants are that they were “unlawful combatants” in part because they were fighting the United States without identifying themselves, via a uniform, as combatants. To not allow them to wear their fatigues in court, Khalid Sheikh Mohammed’s defense lawyer, Captain Jason Wright, argued, would be prejudicial because the government has to prove that as fighters, they failed to identify themselves as combatants.
Army Colonel James Pohl, the military judge presiding over this military commission case at the Guantanamo Bay Naval Base, seemed less impressed with that argument than with the lack of security reasons the government was able to cite for wanting to control the defendants’ clothing choices.
Is there a “valid force protection reason” for the camouflage ban, asked Judge Pohl, or is this just the “personal view” of the commander that camouflage is “not appropriate”?
The prosecutor, Maj. Joshua Kirk, argued that if one of the defendants create a disturbance in court, “gaining control of the accused can be a lot more difficult if they have a lot of extra clothing.” He also said the camouflage garb is “volatile and communicative” to other detainees in the facility, in case they see the accused transferred to the courthouse, and that it’s also confusing because it attempts to “communicate” their military status to the jury.
Judge Pohl dismissed the idea that the jury wouldn’t know the difference between the five defendants and the U.S. military guards surrounding them. And he asked skeptically: “How many layers are too many?” But he conceded that the defendants shouldn’t be allowed to wear any camouflage jackets that are actually also worn by U.S. military.
In the end, Judge Pohl ruled that the five 9/11 defendants can wear camouflage in the military commission courtroom if they want, so long as it’s not actually from a U.S. military uniform. He left open an invitation to the Joint Task Force-GTMO Commander to testify in court about any other valid security concerns the Judge may not be aware of.
The Commander who previously banned the camouflage uniform, Admiral David Woods, is no longer in charge at the base.