Questions of Legitimacy Hang Heavy Over 9/11 Trial

10/19/2012 06:19 pm ET | Updated Dec 19, 2012

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."

As for the defense complaint that it needs approval of the prosecution to call witnesses, "There must be some material showing that what's requested has material relevance before the government has to provide it. The defense can't just claim it's relevant and expect to get it."

The government, on the other hand, does not need to tell the defense what government witnesses will say or seek defense attorneys' approval to interview them. There's no comparable requirement in a federal court that defense counsel seek approval from prosecutors to call witnesses, either.

Finally, the judge heard arguments on Friday over whether the military commission case against these men in the most notorious murder trial in U.S. history has been tainted by intense political pressure from senior government officials. Defense lawyers list nearly 30 pages worth of public statements from senior officials, including the president, defense secretary, attorney general and senators, between 2001 and 2011, who have made public statements assuming the men's guilt and eventual conviction. Did those officials influence the military commissions, created expressly to try alleged terrorists accused of involvement in the 9/11 attacks? And can the commission now, after a decade's worth of public assumptions of guilt, provide a fair trial?

Eleven years into the case, the commission is just starting to consider what evidence the lawyers are entitled to obtain in order to delve into some of these questions and prepare for trial. Answering those questions is an excruciatingly slow process in part because the military commission rules are so unclear and there's little or no precedent interpreting them. But what evidence is made available to the lawyers and can be produced at trial is critical to the fairness of the case.

"This may be the most important case for the United States to be trying in a very long time, maybe ever," Cheryl Bormann, a lawyer for Walid bin Attash, said during the hearing on Friday, adding: "There are serious questions about the legitimacy of these hearings."

The military judge, James Pohl, is under tremendous pressure to rule on these issues fairly. So far, he's made very few rulings, and none on the most important issues argued this week. He may issue some rulings in the coming weeks, and plans to re-convene the hearings in early December.

Still, despite the Judge's best efforts, no amount of careful deliberation can fix the inherent problems of the military commission system itself.