Defense lawyers aren't told what evidence is classified, need the prosecution's approval to call witnesses, and have to defend their clients in a commission that may have been unlawfully influenced by senior U.S. officials hungry for a conviction, they told the Guantanamo court on Friday.
Those were just some of the many frustrations defense attorneys expressed at the military commission hearings in the case of September 11 terrorist attacks this week at Guantanamo Bay. Other concerns were whether the U.S. Constitution applies at Guantanamo and whether the government can classify the memories and experiences of the five accused men and thereby silence them.
James Connell, a lawyer for Ammar al-Baluchi, one of the five men accused of plotting the September 11 attacks, on Friday insisted he doesn't know how to handle information pertaining to his client because the government won't explain what's classified. He could be prosecuted for mishandling classified evidence, he said, so "I treat everything at the highest classification level and drive my IT folks crazy." It also makes it extremely difficult for him to prepare his case. Connell said the National Security Agency created a document specifically explaining the classification of evidence in military commissions, but the government has refused to provide it to the defense. "It stuns me that no one will give us this information," he said.
Prosecutors at the hearing claimed they're just following the rules, although the chief prosecutor, General Mark Martins, has repeatedly emphasized the importance of "transparency" in these "reformed" military commissions.
The defense request "is not relevant as a matter of law," Joanna Baltes, a Justice Department lawyer for the prosecution, told the court on Friday. "The defense is required to treat classified information as classified. If the government marks it classified, that's the end of the inquiry."
October 19, 2012
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Battles Over Government Secrecy Dominate 9/11 Hearings
Posted: 10/17/2012 1:49 pm
The definition and use of classified information, and the public's right to hear it, is proving to be one of the most important issues arising in pre-trial hearings in this historic September 11th terrorism prosecution. With only two of the defendants actually in the courtroom on Wednesday (the others elected not to come), lawyers from the government, defense, ACLU and 14 media organizations over the last two days have argued vehemently over whether the government is properly classifying information -- particularly the memories and experiences of the defendants, who were subjected to the CIA's classified "enhanced interrogation" program. Even if it is deemed classified, argue the ACLU and news organizations, it still has to meet a strict First Amendment standard for the court to lawfully prevent the public from hearing it.
The First Amendment only allows the closing of a courtroom, argued ACLU lawyer Hina Shamsi and media lawyer David Schulz, if it will "cause grave harm to national security."
"The government fails utterly to explain how it has a legitimate interest, let alone a compelling one, in suppressing information about a CIA coercive interrogation and detention program that was illegal and has been banned by the president," the ACLU says in its brief to the court.
The issue is important, both for the public's right to know what its government did and for the legitimacy of this historic trial. As Schulz told the court yesterday: "Nothing is likely to shape the public perception of the fairness of these proceedings more significantly than the way the court handles this request for a protective order."
The current proposed order, he said, "covers things that quite clearly can't credibly constitute a threat to our national security."