Guantánamo Dispatch: The Gremlins in the Commissions

FORT MEADE, Md. - Ninety miles off the coast of Florida, a government experiment continues to go horribly, and predictably, wrong.

Watching last week's pretrial hearings in the Guantánamo military commissions prosecution of the men accused of orchestrating the 9/11 attacks, it's clear that the commissions continue to be an ineffective, unjust, and unconstitutional mess.

Rules and restrictions--whether imposed by the government or the commission itself --continually handcuff the defense, making it impossible for the attorneys to meaningfully defend their clients.

Much of the controversy last week centered on a protective order imposed by the military judge at the request of the prosecution and over the objection of the defense (and the ACLU). Among other things, the protective order deems classified all information about the CIA's torture and black-site detention program – including the defendants' personal knowledge and experiences of the torture to which they were subjected, as well as information that is publicly available in news accounts and investigative reports. On that basis, defense lawyers say, it could bar them from discussing information they obtain about the torture program with their clients, making it impossible for the accused to participate in their own defense.

Those issues led to Alice-in-Wonderland-like discussions in court.

For example, if a member of the defense team interviews a witness in another country and that person discusses information related to the CIA's torture program, defense attorneys fear they cannot share that information with the accused, even though the defendant may have experienced the torture firsthand or the information could contribute to his defense. Complicating matters more, defense lawyers said it's unclear to them whether the defense must conduct witness interviews overseas in "secure areas" if they believe torture will come up.

David Nevin, Khalid Sheikh Mohammed's lawyer, said he had no idea what to do if an overseas witness surprised his defense team and began discussing torture. "What do you do with it?" Nevin asked Judge Pohl. "You are standing there in a foreign country. You are nowhere near a SCIF [a secure government facility]. And not to mention -- what do you do next? The person… gives you a fact about enhanced interrogation techniques, what do you do?"

Defense lawyers say the protective order is so ambiguous that they are unsure if they can even discuss with their clients publicly-available materials, such as a New York Times article or The Constitution Project's report on detainee treatment, which describe the government's torture program. James Harrington, the attorney for Ramzi bin al Shibh, called these barriers "the height of silliness. The whole world knows this information." Constantly, the defense painstakingly tried to determine what public information (or information third parties have) is deemed classified and how they would have to handle it under the protective order. "There are always gremlins in this language," Nevin told Judge Pohl.

What the protective order restricts is also critical to the defendants' rights under the United Nations Convention Against Torture. In another motion, counsel for four of the defendants said they could not sign a memorandum of understanding agreeing to abide by the protective order because they could be signing away their clients' rights under the international human rights treaty (which the U.S. championed and signed) to complain about their torture. The rub, however, is that if defense counsel do not sign the memorandum of understanding, the government will not turn over classified evidence it plans on using to prosecute the defendants.

These and other restrictions make it virtually impossible for defense counsel to meaningfully and ethically represent their clients. As Cheryl Bormann, attorney for Walid bin Attash, told military judge Army Col. James Pohl, "Torture will be central to mitigation," meaning that the fact that these men were tortured could determine whether they are subjected to the death penalty. Nevin stated the defense position succinctly: "It's not fair to execute a man when you have not given him everything in the government's possession bearing on whether or not he should be executed."

Compounding the unfairness is the fact that the CIA carried out the torture program, "owns" the information according to the government's classification system, and is being allowed under the protective order to keep its crimes secret from the public and the defendants.

"The CIA controls that [information], and that is fundamentally unfair," said Nevin. "That's not right in a case where, at the end of the day, if it all goes the way the government wants, they will be given permission to kill Mr. Mohammad."

The restrictions on effective representation — and fair trial rights – extend beyond the $12 million courtroom especially constructed for this trial, which is rigged with censor buttons.

Defense attorneys believe their privileged, confidential meetings with their clients have been eavesdropped on through listening devices disguised as smoke detectors. They also told the court that there isn't an effective and secure classification review process for their privileged materials – and that those materials could be improperly accessed by government agencies. In April, the chief military defense counsel ordered all Guantánamo defense attorneys to stop sending privileged communications via e-mail because the Defense Department network was not secure; the issue still hasn't been resolved.

The 9/11 trial is the most important in the nation's history and yet the U.S. government is undermining its legitimacy by trying it in these experimental commissions, and compounding the problems with secrecy-based restrictions that hamstring the defense. Unlike the commissions, federal courts have long-standing experience in trying terrorism cases and while the federal criminal justice system is by no means perfect, it certainly has more experience in protecting the rights of all litigants. The American public, the 9/11 victims and their families, and the accused — no matter how heinous the crime of which they are accused — deserve better. The trial of these defendants could have been an opportunity to showcase America's confidence in our criminal justice system and the due process and fair trial protections it affords even those accused of the worst acts – because those are our strengths.

Unfortunately, the U.S. government, with Congress's and two presidents' approval, went another way, and history's judgment will not be kind.

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