Daphne Eviatar Headshot

9/11 Military Commission: More Tragedy Than Farce

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PA

It would almost be funny if it weren't so sad. Four days of military commission hearings at Guantanamo Bay this past week yielded little more than confusion about the law and heightened suspicion of the U.S. government. Any steps toward bringing to justice the five co-defendants accused of the murder of nearly 3,000 people on September 11, 2001, were barely perceptible.

To an ordinary observer, the most memorable parts of the pre-trial hearing in the 9/11 case were when the audio feed turned to static and the video screen went black while Khalid Sheikh Mohammed's defense lawyer addressed the court. The sudden censorship was a complete surprise to the judge, Col. James Pohl, who admitted he had no idea who was in charge of the censor button.

All of the proceedings in the 9/11 case are broadcast to an audience at Guantanamo or at Ft. Meade, Md., via an audio feed that operates on a 40-second delay, to prevent an accidental leak of classified information.

But all along, both observers and participants in the trial had thought it was the judge or his court security officer who was deciding when to black out the proceedings. Suddenly, everyone learned that wasn't so. Including the judge. He wasn't happy about it.

"If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation," he said afterwards, "then we are going to have a little meeting about who turns that light on or off."

Meanwhile, Joanna Baltes, a Justice Department lawyer representing the government on secrecy matters in the case, seemed to know who was censoring the proceedings but said she could not talk about it in open court. (Apparently it was just the mention of the word "secret" that prompted the censorship.)

The next day, Judge Pohl clarified that only he is in charge of closing the courtroom. But he still couldn't say who had pressed the censor button the day before. By the final day of the hearing, he ordered that no one outside his courtroom would again be allowed to hit the censor button. Still, he didn't say who else might be listening in to the proceedings in real-time, or what exactly they could hear.

That prompted a whole new set of concerns from the five teams of defense lawyers, who wanted to know if a government official was listening to their conversations with their clients. "Until this question is resolved, it's impossible to know if we're fulfilling our ethical obligations" to maintain the confidentiality of attorney-client communications, David Nevin told the judge on Thursday, handing him a file of papers that he said contained an "emergency motion to abate the proceedings" until "we get to the bottom of this."

By Thursday afternoon, the judge had agreed to suspend the proceedings until someone in charge could come and testify about what's being recorded and who is listening to it.

Most of the rest of the hearing was taken up with arguments over what evidence the government must produce to the defense teams concerning the five suspects' treatment in U.S. prisons and whether there was any unlawful government influence over the prosecution of the case. Because the military commission rules are new and have no legal precedent, the lawyers relied on a mix of federal, state and military court martial rules to make their case. It was never clear exactly which of those laws are relevant to the military commissions. Indeed, it's not even clear if the U.S. Constitution applies there.

After a week's worth of this, the whole case seemed like a comedy of errors. Only for the family members of victims of the September 11 attacks, there was nothing funny about it.

On Thursday afternoon, the mother of 23-year-old Matthew Sellitto, who died in the World Trade Center when it was attacked in 2001, addressed the lawyers and the media. "I'm perplexed," she said. "You came on board knowing it was a military tribunal. I hear a lot of talk within your testimonies to the judge concerning federal law," she said. "Why are you having so much problem with the law? I don't understand why it's coming up so much."

Phyllis Rodriguez, the mother of another 9/11 victim, Gregory, added that after watching the proceedings for a week, "I do not think this [military commission] is the right venue to try these men" because the United States did not go to war until after the 9/11 attacks. She added that it "disturbs me" that the lawyers weren't getting the evidence they were asking for: "It's not being given the way it would be in a federal court."

The potential for injustice in the military commission was particularly disturbing to her, she said, because the five defendants in this case could receive the death penalty. "Since my son was murdered in the World Trade Center, I d not want to see any more people put to death to cause their families suffering."