Khalid Sheikh Mohammed and four other men charged in the Sept. 11 attacks were supposed to be tried six years ago in a military tribunal created by the Bush administration.
But that system — which allowed hearsay evidence, among other things — faced questions about its fundamental fairness. When President Obama came into office, he put all the proceedings at Guantanamo on hold and asked that the commission system be revamped.
Since then, there has been an effort to make sure the trials at Guantanamo are credible, with both Congress and the Supreme Court weighing in.
With revisions now in place, Mohammed and the other four defendants are now scheduled to be arraigned Saturday in a military courtroom in Guantanamo Bay, Cuba.
“If you were to watch the proceedings now, I think you’d come away with the picture that this is a fair system,” says Gen. Mark Martins, the chief prosecutor of the military commissions, who was intimately involved with revamping the system. He says the commissions now mirror the federal court system.
“Law is being applied, judges are interpreting laws, justice is being done, and we’re just absolutely committed to that,” he says.
Defense attorneys aren’t so sure. “When Gen. Martins says we are aligned with federal courts, we may be aligned from some degree on paper, but in practice there is no alignment whatsoever,” says Cmdr. Walter Ruiz. He’s defending Mustafa al-Hawsawi, a man accused of sending money to the Sept. 11 hijackers. He says that the system has been stacked against his client almost from the start.
“My team has been without a qualified, dedicated translator for over a year,” Ruiz says. “It has actually been since March of last year. That’s a significant departure from what you would see in federal court.”
Martins says the defense has access to a pool of translators and translation services at Guantanamo, but Ruiz says that isn’t the same thing as having a translator assigned to a specific defense team.
Attorney-client privilege has been a huge issue, as well. The head of the prison at Guantanamo Bay has required that everything that comes in and out of the detention facility be opened. This includes envelopes and packages sent by attorneys to their clients. He says it has to be done for security reasons.
Defense attorneys have cried foul. They say opening their mail makes it impossible to build a relationship of trust with their clients, and will hobble their ability to communicate about trial strategy with the men they are representing. A judge has already tried to deal with the problem in another case, but it is sure to loom large in the proceedings Saturday.
Martins says the system respects the relationship between detainees and their lawyers and, because of that, there is a kind of special team that opens the mail but is walled off from the prosecution and government lawyers. Defense attorneys say that isn’t enough.
Complaints About Classified Information
Jim Harrington is defending a Sept. 11 defendant named Ramzi bin al-Shibh who is accused of being Khalid Sheikh Mohammed’s right-hand man in the plot. Harrington says the commissions have something called pre-emptive classification. What that means is that anything his client tells him, no matter how innocuous, is automatically classified.
“We can’t reveal to anyone what our clients tell us,” Harrington says. “A simple hypothetical: If I go in and say to my client, ‘Were you born on such and such a day?’ and he says ‘Yes,’ I cannot come out and say, ‘My client says he was born on such and such a day’ — that’s how absurd this is.”
Ruiz and Harrington aren’t the only attorneys crying foul. Defense teams at Guantanamo have been complaining about evidence, secrecy and rule changes for months, and that could be a problem not just for the defense but for the entire military commissions system.
“It’s hard to say what is going to happen in the military trials. I think the entire thing is a very large question mark,” says Karen Greenberg, executive director of the Center for National Security at Fordham Law School. She says it would help immensely if the military court treated defense attorneys a little differently — if they treated them like they trusted them.
“The way they are treated is very much as if they are doing something that is suspect,” says Greenberg, echoing what the defense attorneys have said. “That tone has everything to do with whether or not the defense will say, ‘Yes this was a fair trial,’ And ultimately, you need the defense to say at the end, ‘This was a fair trial.’ “
The cases under the revamped commissions system have barely started. But if the defense attorneys emerge months from now feeling the military commissions system is stacked against them, the system may be seen as a failure.