6-18-2013By Adam Jacobson
Law and Security Program
The case against Khalid Shaikh Muhammad and the other alleged 9/11 conspirators started back up again this week at Guantanamo. Judge James Pohl probably summed up the proceedings best, when, in the middle of courtroom technical difficulties, he let out a loud, frustrated sigh.
Later, as defense counsel and prosecution sniped at each other over the standards for late motion filing, Judge Pohl remarked, “As I’m constantly being reminded by both sides, things down here don’t run as smoothly as they would other places.” He’s not wrong.
These hearings are the latest in a prelude to what could be a contender for the trial of the century – the five men allegedly responsible for the planning and financing of 9/11. This is the second attempt in Guantanamo military commissions, after President Obama shut down the initial commissions case, planned to move the trial to federal court in New York, then reversed that decision and started a new Gitmo trial.
The hearing yesterday consisted entirely of defense attorneys questioning the former Military Commissions Convening Authority, retired Vice Admiral Bruce MacDonald. Admiral MacDonald testified via video feed from the U.S. (the source of some, but not all, of the technical difficulties faced in the court). As Convening Authority, Admiral MacDonald made the decision to refer all of the 9/11 defendants for trial, and also to seek the death penalty in the cases.
Defense attorneys peppered Admiral MacDonald with questions about the policies at Guantanamo and Convening Authority decisions that they feel made it difficult or impossible to do their jobs and adequately represent their clients.
Among these issues: The creation of a “Privilege Team” which monitors and screen attorney-client communications, even, we learned, recording phone conversations between attorneys and their clients. The justification presented is that this will prevent the detainees from receiving “contraband” or non-legal communications from their defense attorneys and make sure that third parties aren’t joining the attorney-client calls. The defense called these measures violations of their attorney-client privacy.
The defense also challenged Admiral MacDonald’s credibility on referring death penalty cases, giving the impression that he was unprepared (he had never handled a death penalty case before becoming Convening Authority), and that his decision to give the defense 60 days to meet their clients, assemble a defense team, hire a mitigation expert, and file their objections to a death penalty referral, was almost an arbitrary decision, not accounting for the reality of the situation.
All of this is to be expected with military commission proceedings, where more than a decade of bad legal architecture is questioned in court at every opportunity. It’s telling that when Admiral MacDonald wanted to learn more about death penalty cases, he tasked his staff with researching federal death penalty trials. These cases should have been (and still should be) tried in federal court, instead of cobbling together commission rules that are still unclear, even after three iterations.
This week, President Obama named a new envoy to close the prison, and the Department of Justice has released a full list of detainees for the first time, including names, nationalities, and decisions regarding prosecution, detention, or transfer. All progress. But here at Guantanamo, the trials continue, barely.