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January 28, 2013

Secrecy Continues to Dominate 9/11 Hearings

This is a crosspost from Huffington Post

It was another chaotic day at the Guantanamo military commissions.

When Khalid Sheikh Mohammed’s lawyer started talking this afternoon about his request for information pertaining to his client’s case, someone — it’s not clear who — hit the censor button. The audio feed turned to static. About a minute later, the screen went black. Even those physically sitting in the courtroom at Guantanamo Bay, separated from the judge, lawyers and defendants by soundproof glass, couldn’t hear the actual exchange taking place in the court.

When the sound finally came back on several minutes later, Col. James Pohl, the military commission judge presiding over the September 11 war crimes case, looked baffled. He turned to the prosecutors and asked them who hit the censor button. Justice Department lawyer Joanna Baltes said she’d tell him later, in a secret session. But no one seemed to know who had the authority to censor the proceedings and on what grounds it had been done.

None of this is very auspicious for the trial of the five men accused of the most heinous terrorist attack ever perpetrated on U.S. soil. Although the judge earlier approved a 40-second delay in the audio feed from the courtroom to allow a government censor to shut down the feed if classified words were spoken, he doesn’t seem to know who’s in charge of carrying out his order.

Whether defense counsel in the 9/11 case can even speak in open court about wanting information from the government about the conditions of their clients’ confinement — let alone whether the government has to provide that information – remains in doubt more than 11 years after the 2001 terrorist attacks took place.

A day of hearings at the Guantanamo Bay detention center once again highlighted the government’s insistence on keeping secret anything related to the torture and abuse of the five accused men. It also highlighted the uncertainty of the rules governing the military commissions, which is making it so hard to get this trial off the ground.

Repeatedly, lawyers for the defendants and for the government argued to the judge about the different procedures that apply in different courts — from the state courts of California to the federal court in Washington, D.C.. Each tried to analogize to those other courts’ long-established rules to argue for the rules they want to govern this military commission proceeding. That’s because the rules that actually govern this proceeding and these military commissions are still so unclear, more than a decade after thefirst Guantanamo military commission was created. It’s not even clear to what extent the U.S. Constitutionapplies.

So far, the arguments at these pre-trial hearings are still mostly about the defense lawyers’ access to evidence and ability to communicate with their clients. They’re preliminary matters, but important ones that go to the heart of the legitimacy of the future trial and verdict. Yet because the military commissions are so new and untested — it’s hasn’t yet held a contested trial on the merits of a single case — the lawyers on both sides can spend months, or even years, arguing over what rules should apply.

So far, that’s exactly what seems to be happening.