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At Guantanamo, The Pursuit Of Justice Must Stand By Because Of Technical Difficulties

militarycommissionsUnited States v. Mohammed, et al. resumed on Wednesday for the third day of this week’s pre-trial hearings. Each day of this week’s hearings have been impeded by technical problems that demonstrate that holding the trial at the Military Commission in Guantanamo Bay is several problematic. Continuing to hold the trials at the remote courtroom in the southeast corner of Cuba with such extensive security protocols will extend the trial for an unforeseeable amount of time and will actively interfere with the quality of witnesses’ testimony, if the witnesses even can appear.

Khalid Sheikh Mohammed and the four co-defendants accused of planning the 9/11 attacks appeared on Monday as required by Judge James Pohl. Each week the hearings resume in order to review the accuseds’ right to appear. Following this appearance, the accused typically abstain from appearing for the remainder of the week, as they all did on Tuesday. However, all five of the accused made an uncharacteristic second appearance in court this week on Wednesday, drawing many gazes from the observers.

Wednesday’s proceedings began with defense counselor Commander Ruiz addressing the prosecution’s request that Judge Pohl wait to rule on the ICRC issue for another four weeks so that a compromise may be worked out. Commander Ruiz argued that the motion to compel discovery of the ICRC’s information was not new; rather, it initially was brought on 12/27/12 and therefore waiting to rule on the request would delay the litigation on that one pre-trial request until seven months after it had been filed, as just one example of the extensive delays caused by the Commission’s remoteness and security protocols. Commander Ruiz argued that any additional time would not produce results that have not already been produced in the past six months, and he requested the court to decide the issue.

Hello? Can You Hear My Testimony Now?

The proceedings turned to the examination of Rear Admiral David B. Woods via video telephone conference, whose testimony underscored the week’s theme of technical difficulties and security protocols interfering with process. The sound quality of Adm. Woods’ feed made it seem like he was talking into a tin-can phone. Under defense counselor James Connell’s questioning, Adm. Woods testified that during his post as Guantanamo Bay’s Joint Task Force (JTF) Commander he implemented new screening processes for reviewing legal mail. In order to prepare for the incoming mail for the newly implemented Military Commission, Adm. Woods ordered “baseline reviews” of legal materials already in detainees’ cells that preceding JTF Commanders had not ordered to be reviewed. In Adm. Woods’ words, JTF needed to figure out how to “get our arms around the material already in the camp.”

Adm. Woods’ video feed broke up, like other video feeds throughout the week. The problem interrupted the proceedings so much that Judge Pohl ordered a fifteen-minute recess for the problem to be repaired, highlighting once again the trial delays caused by the Commission’s remoteness. When the court resumed Adm. Woods testified under Mr. Connell’s questioning that legal pleadings should not be classified as contraband but as Mr. Connell attempted to develop this point, more technical problems marred the proceedings.  Documents, needed to refresh Adm. Woods’ recollection, could not be sent from the remote courtroom in Cuba to Adm. Woods via computer transfer, nor could they be sent via a document camera. The week’s constant technical problems obviously frustrated Judge Pohl, who threatened to order that military witnesses must appear in person if the technical problem persisted. Yet again Judge Pohl recessed the court because of the technical problems in the Military Commission courtroom.

The Right to Hear the Government’s Secret Accusations

After the recess Judge Pohl postponed the examination of Adm. Woods until the afternoon and moved on to the issue of whether the accused should be allowed to be present during an interlocutory motion. The debate between the prosecution and the defense revolves around the United States government’s attempt to monopolize secret information, an expansive policy for which it has recently attracted worldwide criticism. Interlocutory motions interrupt the trial, typically so that the prosecution, the defense and the judge can meet in private to discuss information that has been classified by the government. The government prevents the public from learning the information discussed in these meetings. The government also prevents the men on trial from knowing what is being said about them in these meetings, even though the court documents being discussed in private refer to actions or statements that the government alleges that the accused made.

The prosecution argued against a per se rule and insisted that whether a detainee should be allowed to stay during the motion should be determined case by case. In contrast, the defense argued that the accused had a right to be present during any proceeding and that the hearing should only be closed under three narrow exceptions: deliberations, closure to the public, and as a matter of physical safety. The defense pointed out that in civilian capital cases defendants have a right to hear all information that may help their case.

‘Obviously, That Was a Mistake’

Following the recess for lunch, Mr. Connell resumed questioning Adm. Woods despite intermittent technical problems and poor sound quality. Adm. Woods remained strong in his stance that the protective order he enacted was not meant to preclude legal mail from reaching the detainee. Although the definition of contraband in the order did include materials such as legal mail, Adm. Woods pointed to an exception to the rule for material directly related to the defense. If there was a question over whether something violated the privilege, either the JTF Commander or the judge presiding over the Military Commission was to determine whether the material was protected as legal mail or subject to seizure by the military as contraband.  When defense counselor David Nevin questioned Adm. Woods about the protective order’s contradictory language Adm. Woods painfully admitted, “obviously that was a mistake,” negating his earlier testimony that he carefully crafted the words of the order.

Suddenly, the row of guards seated alongside the five detainees jumped to their feet and surveyed the courtroom with attention and a serious demeanor. Usually, the guards remain seated along the wall of the courtroom, bored but dutiful. The head guard marched to the podium and announced that a problem had come to the guards’ attention. The proceeding needed to recess and Judge Pohl ordered the gallery to be cleared. The non-governmental observers, journalists, and victims’ family members in the gallery learned shortly after being evacuated from the courtroom that the “cellphone buster” went off, meaning that a cellular device had been detected. The military carefully screens all persons entering the courtroom and gallery because all cellular and recording devices are prohibited. Yet again, technology delayed Wednesday’s proceedings.

In fifteen minutes the matter was resolved and the hearing resumed. Mr. Nevin continued to press Adm. Woods on what was included as legal mail and what was contraband under the protective order, establishing a solid record of evidence. Defense Counsel Bormann was able to show the arbitrariness of the protective order through her questioning. Although a chapter about the book “Black Banners,” seized from her client, was not covered by attorney-client protection under Adm. Woods’ order, if Ms. Bormann copied the text of the chapter, word for word in her own handwriting, with the appropriate markings for attorney mail to clients, the exact same words would be protected and therefore delivered to the detainee.

Ryan Gallagher, a rising third-year student at Seton Hall Law School, is a Fellow for the law school’s Center for Policy & Research. Seton Hall Law has been granted NGO observer status at the military tribunals in Guantánamo.