6-24-2013By Adam Jacobson
Law and Security
After wrapping up my week as observer at pre-trial hearings for the case against Khalid Shaikh Muhammad and the other alleged 9/11 conspirators, I’m still attempting to put everything in context. The entire week (in between technological difficulties) was spent litigating how much access defense attorneys should have to the detainees they’re representing, and the rules for handling attorney-client communications. What’s shocking is that these procedures are not even two years old.
Getting off to an inauspicious start, the final day in this round of hearings began with the court stenographer’s equipment not working properly. Once that issue was resolved, court was halted again, this time by a toothache. The defendants can choose each day (except the first day) whether they will attend the hearing or not. One of the defendants, Ammar al-Baluchi, did not attend on Friday, complaining of a toothache. And so the proceedings were halted yet again, as Judge James Pohl sent a representative to the camp to see whether al-Baluchi had chosen not to attend or if his toothache physically prevented him from attending.
The rest of the day was spent exploring the absurdities of the rules governing attorney-client communications at Guantanamo, a set of rules that allow relevant passages of books to be sent to detainees, but only if they are hand-copied by their attorneys. These absurdities were spiked with unintentionally funny moments, like when the court’s translators misheard the name of “Inspire” magazine (Al Qaeda in the Arabian Peninsula’s publication) and translated “Esquire” magazine to the defendants. Or when Captain Thomas Welsh, the legal advisor to former Joint Task Force (JTF) Guantanamo Commander Rear Admiral David Woods, accidentally contradicted Woods, who had claimed that he had worked on a 2011 order over the Christmas break, even saying, “We at JTF don’t take holidays.” When asked if Woods had worked on the order over the holiday, Welsh blithely replied, “Of course not, he was spending time with his family.”
But the day wasn’t all laughs and interruptions. What became clear over the week, especially Friday, is that defense attorneys were confounded by rules which essentially prevented them from being able to share information and materials with their clients without either having that material read by prison staff, or having it rejected altogether. The prison staff (in groups known as “Privilege Teams”) reviewing attorney-client materials (to search for contraband and non-legal documents) were not bound by any kind of non-disclosure agreement, and so they could presumably tell others about the documents they had reviewed. For defense attorneys, this was a breach of their attorney-client confidentiality, and was entirely unacceptable.
As the day’s proceedings turned into the evening’s proceedings, Judge Pohl ended by addressing a prosecution motion to create a new system for handling attorney-client communications. Having heard a week of arguments and testimony addressing all sides of the issue, Judge Pohl was clearly ready to wrap the subject up. Both the defense and the prosecution sketched out their idea of what acceptable rules would be, and Judge Pohl will now consider both and presumably issue a new order, which may be issued in the next three weeks.
The existing rules being debated are under two years old, having been enacted in December 2011 by Admiral Woods. Guantanamo has been open for more than 10 years. We’re approaching the twelfth anniversary of 9/11, and the trial against the men allegedly responsible for those horrific events hasn’t even started. Judge Pohl, the defense, and the prosecution are all clearly doing their best under the circumstances. But a week plagued with tech glitches and mired in debate over absurd prison rules only served to show the dysfunction behind the system.
As someone who believes federal courts should handle terrorism cases, I left my week at Guantanamo even more convinced that the military commissions are the wrong way to go, and without much hope for justice in the near future, if at all.