Pretrial hearings resume Monday in the death penalty trial of Khalid Sheikh Mohammed and four other men accused of planning the Sept. 11 terrorist attacks. The men have been in jail, awaiting trial, for over a decade. The hearings in their case started back in May and they have hardly moved forward since then.
Eventually, the case will be one of dueling narratives. The prosecution will focus on the attacks on the World Trade Center and the Pentagon, and the defense will talk about the treatment of their clients after their capture. (The CIA has admitted to waterboarding Khalid Sheikh Mohammed in a black site 183 times.)
The hearings this week, however, will be as much about the court system created to try terrorists at Guantanamo as it will be about the men in the dock.
"The defense doesn't spend time attacking the jurisdiction, legitimacy or the authority of the southern district of New York or the Eastern District of Virginia, that's kind of the color of the wall paper," says Ben Wittes, who edits and writes for the Lawfare Blog which, among other things, tracks the progress of the military commissions.
"In the military commissions you have all the litigation you'd have in a federal court, but then you have this other layer in which people are arguing about the tribunal itself," he says.
The latest kerfuffle began when David Nevin, the attorney defending alleged Sept. 11 mastermind Khalid Sheikh Mohammed, was telling the judge that the defense wanted to argue a motion to preserve whatever remained of the CIA's black sites overseas as part of the defense's efforts to discuss what happened to their clients after they were captured.
Prosecutors had filed a classified response to the request, and as Nevin began reading the title of the motion, a spinning red light on the judge's bench suddenly lit up and the audio and visual feeds from the courtroom went dead.
Everyone looked around in surprise.
Because the military commissions at Guantanamo need to keep classified information from getting out to the public, the audio feed from the courtroom is on a 40-second delay. When something classified is said — a censor who sits next to the judge pushes a button and starts the light spinning and sends white noise to listeners outside the courtroom.
During Nevin's argument, however, the feeds were cut off not by the judge or the prosecution, but by some third party.
"If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation," Judge James Pohl, an army colonel said, "then we are going to have a little meeting about who turns that light on or off."
No one seemed to know, until that moment, that there even was a third party that could cut the feed.
"Someone listening in at the same time that they presumably had access to a button that could stop people from talking," said Wells Bennett, a visiting fellow at the Brookings Institution. "What that did was add another level of concern for the defense and it played directly into their challenge to the legitimacy of the trial."
That's more or less where Monday's hearings are expected to start: with the question of who is secretly monitoring the trial. The defense is worried this unseen force — which presumably is the CIA — is also listening in on private attorney-client conversations. In fact, the first motion on the docket is from lawyers for Mohammed who filed a motion asking the judge to stop the hearings until the white noise controversy is settled.
"My staff and I spent a full week diligently running every rumor to ground, and I can say unequivocally that no entity of the United States Government is listening to, monitoring, or recording communications between the five accused and their counsel at any location," chief prosecutor General Mark Martins said in a written statement on Sunday night. He said his staff had done their best to "prove a negative."
"There are a whole bunch of problems with Guantanamo," says Karen Greenberg, who runs the Center on National Security at Fordham Law School.
"The question is: can they get around these issues in such a way to try these cases [and] bring them to a conclusion in a way that you can say we had a legitimate courtroom proceeding that has democratic standards attached to it?" Greenberg says. "It is extremely difficult."
The secret monitoring of the proceedings is just one example of a host of problems. Wittes says the commissions have been bogged down — the arraignment in which the defendants didn't even enter pleas was nearly a year ago — because lawyers aren't just litigating the facts of this case, as you would expect in federal court, but are arguing about the tribunal itself.
"Unlike a federal court proceeding where you have many many years and decades of trial practice and precedent, in the military system you don't have that reservoir of experience," he says. "Neither the judge nor the lawyers can say: this is the way we've always done it, so they have to discuss everything."
The defense motions on the docket this week, for example, include several attempts to get all the charges dismissed on procedural grounds. The defense says the charges weren't filed properly and that the retired admiral who oversees the commissions wasn't constitutionally appointed.
Those kinds of issues were settled in federal court long ago, not at Guantanamo. This goes a long way toward explaining why at this early stage in the trial, the prosecution is hardly getting a word in edgewise. That, will happen later.
"As you get closer to a trial you talk more about factual issues, a lot more about who did what," says Wells Bennett. "And that's not really something the defense wants to get into."
There are 17 motions scheduled for argument this week. Nearly all of them are from the defense and nearly all of them are focused on the way the commissions are set up.
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