Guantánamo: Secret evidence is thorny issue at 9/11 pretrial hearing
At Guantánamo, Khalid Sheikh Mohammed and four alleged 9/11 co-conspirators were back in court. Their lawyers complained about not being able to show them 'classified' evidence.
Fort Meade, Md.
Accused 9/11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators were back before a military judge at Guantánamo on Monday as lawyers began a week-long series of hearings to decide unresolved legal issues in advance of the still-unscheduled war crimes trial.Skip to next paragraph
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Pending before the court are matters related to the protection of classified information, alleged government invasion of the attorney-client privilege, and the severity of the conditions of the defendants’ pre-trial confinement in a secret wing of the US terror detention facility, among others.
The proceedings were monitored by reporters at Guantánamo and via a live broadcast at Fort Meade in Maryland.
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During the hearing, Mr. Mohammed sat at the defense table dressed in a green military-style camouflage jacket and white turban. Much of his lower face was concealed beneath a thick red beard.
He appeared alert and engaged in the proceeding.
The session marked the fifth time lawyers for the five defendants have squared off against military prosecutors since May 2012, when the defendants were formally charged with nearly 3,000 counts of murder and other crimes related to the Sept. 11, 2001 terror attacks.
The US government is seeking the death penalty for all five defendants.
Much of the legal wrangling is over how to handle classified information.
Although such procedures are well-established in US federal courts, the Obama administration decided to prosecute the men at Guantánamo before a military commission.
The hybrid military tribunal system is specially-designed to offer robust protections of information the government has deemed to be sensitive, while offering fewer legal protections for the accused than they’d receive in the federal court system.
At the hearing, defense lawyers expressed concern about having to agree to accept and examine certain “classified” pieces of evidence that the US government says cannot be shown to the defendants. The lawyers must pledge not to share or discuss the information with their clients.
The judge in the case, US Army Col. James Pohl, approved the government-requested procedure in January. So far only one lawyer has signed the agreement.
Mr. Mohammed’s defense lawyer, David Nevin, told the judge the issue puts him in the difficult position of pitting his client’s ability to view the evidence presented against him against the lawyer’s responsibility to follow the judge’s order establishing a procedure for the trial.
“We cannot explain this to our clients,” said James Harrington, defense lawyer for Ramzi Bin al-Shibh.
He wondered aloud how one tells a defendant in a capital case that the government wants to put you to death but also doesn’t want you to see all the evidence it feels it needs to present to win a conviction. What do you say to a client under those circumstances, he asked, “just trust me and trust that the system is trying to be fair?”
“It highlights the ethical struggle we are dealing with,” Harrington said.