National Security
3:22 pm
Fri May 4, 2012

At Sept. 11 Trial, Military Commissions Face Scrutiny

Originally published on Fri May 4, 2012 5:04 pm

Khalid Sheikh Mohammed and four other men charged in the Sept. 11 attacks were supposed to be tried six years ago in a military tribunal created by the Bush administration.

But that system — which allowed hearsay evidence, among other things — faced questions about its fundamental fairness. When President Obama came into office, he put all the proceedings at Guantanamo on hold and asked that the commission system be revamped.

Since then, there has been an effort to make sure the trials at Guantanamo are credible, with both Congress and the Supreme Court weighing in.

With revisions now in place, Mohammed and the other four defendants are now scheduled to be arraigned Saturday in a military courtroom in Guantanamo Bay, Cuba.

"If you were to watch the proceedings now, I think you'd come away with the picture that this is a fair system," says Gen. Mark Martins, the chief prosecutor of the military commissions, who was intimately involved with revamping the system. He says the commissions now mirror the federal court system.

"Law is being applied, judges are interpreting laws, justice is being done, and we're just absolutely committed to that," he says.

Critics Remain

Defense attorneys aren't so sure. "When Gen. Martins says we are aligned with federal courts, we may be aligned from some degree on paper, but in practice there is no alignment whatsoever," says Cmdr. Walter Ruiz. He's defending Mustafa al-Hawsawi, a man accused of sending money to the Sept. 11 hijackers. He says that the system has been stacked against his client almost from the start.

"My team has been without a qualified, dedicated translator for over a year," Ruiz says. "It has actually been since March of last year. That's a significant departure from what you would see in federal court."

Martins says the defense has access to a pool of translators and translation services at Guantanamo, but Ruiz says that isn't the same thing as having a translator assigned to a specific defense team.

Attorney-client privilege has been a huge issue, as well. The head of the prison at Guantanamo Bay has required that everything that comes in and out of the detention facility be opened. This includes envelopes and packages sent by attorneys to their clients. He says it has to be done for security reasons.

Defense attorneys have cried foul. They say opening their mail makes it impossible to build a relationship of trust with their clients, and will hobble their ability to communicate about trial strategy with the men they are representing. A judge has already tried to deal with the problem in another case, but it is sure to loom large in the proceedings Saturday.

Martins says the system respects the relationship between detainees and their lawyers and, because of that, there is a kind of special team that opens the mail but is walled off from the prosecution and government lawyers. Defense attorneys say that isn't enough.

Complaints About Classified Information

Jim Harrington is defending a Sept. 11 defendant named Ramzi bin al-Shibh who is accused of being Khalid Sheikh Mohammed's right-hand man in the plot. Harrington says the commissions have something called pre-emptive classification. What that means is that anything his client tells him, no matter how innocuous, is automatically classified.

"We can't reveal to anyone what our clients tell us," Harrington says. "A simple hypothetical: If I go in and say to my client, 'Were you born on such and such a day?' and he says 'Yes,' I cannot come out and say, 'My client says he was born on such and such a day' — that's how absurd this is."

Ruiz and Harrington aren't the only attorneys crying foul. Defense teams at Guantanamo have been complaining about evidence, secrecy and rule changes for months, and that could be a problem not just for the defense but for the entire military commissions system.

"It's hard to say what is going to happen in the military trials. I think the entire thing is a very large question mark," says Karen Greenberg, executive director of the Center for National Security at Fordham Law School. She says it would help immensely if the military court treated defense attorneys a little differently — if they treated them like they trusted them.

"The way they are treated is very much as if they are doing something that is suspect," says Greenberg, echoing what the defense attorneys have said. "That tone has everything to do with whether or not the defense will say, 'Yes this was a fair trial,' And ultimately, you need the defense to say at the end, 'This was a fair trial.' "

The cases under the revamped commissions system have barely started. But if the defense attorneys emerge months from now feeling the military commissions system is stacked against them, the system may be seen as a failure.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

ROBERT SIEGEL, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

AUDIE CORNISH, HOST:

And I'm Audie Cornish.

Five men accused of helping plan the September 11th attacks are expected to appear in a military courtroom tomorrow at Guantanamo Bay, Cuba. Their arraignment is the first step in a process that could take years. And their trial is widely seen as a test case for the Obama administration's new Military Commission system. Already, though, defense attorneys say that system is falling short.

NPR's Dina Temple-Raston has our story.

DINA TEMPLE-RASTON, BYLINE: Khalid Sheikh Mohammed and his four co-defendants were supposed to be tried six years ago in a military tribunal the Bush administration created. At the time, that system was seen as unfair. Since then, there's been an effort to make the trials at Guantanamo credible and more like federal criminal courts.

GENERAL MARK MARTINS: If you were to watch the proceedings now, I think you'd come away with the picture that this is a fair system.

TEMPLE-RASTON: That's General Mark Martins, the chief prosecutor of the Military Commissions.

MARTINS: Law is being applied, judges are interpreting laws, justice is being done, and we're just absolutely committed to that.

TEMPLE-RASTON: Defense attorneys aren't so sure.

COMMANDER WALTER RUIZ: When, you know, Martins says that we are aligned with federal courts, we may be aligned to some degree on paper, but in practice there is no alignment whatsoever.

TEMPLE-RASTON: That's Commander Walter Ruiz, speaking from Guantanamo ahead of his client's arraignment this weekend. He's defending a man accused of sending money to the 9/11 hijackers. His name is Mustafa al-Hawsawi. Ruiz says the system has been stacked against his client almost from the start.

RUIZ: My team, Mr. Hawsawi's team, has been without a qualified, dedicated translator for over a year - since March of last year. That's a significant departure from what you would see in federal court.

TEMPLE-RASTON: That's one complaint, not enough translators. General Martins says the defense has access to translation services at Guantanamo, but Ruiz says that's not the same thing.

Another problem: attorney-client privilege. The head of the prison at Guantanamo has a team that opens everything that comes into the detention facility. Defense attorneys say opening their mail makes it impossible to communicate about trial strategy with their clients. General Martins, the prosecutor who worked on the military commission reforms, says the system respects the relationship between detainees and their lawyers.

Here's another issue: classified information. Jim Harrington is defending a 9/11 defendant named Ramzi Binalshibh. He says that anything his client tells him - no matter how innocuous - is automatically classified.

JIM HARRINGTON: We can't reveal to anybody what our clients tell us. A simple hypothetical: If I go in and say to my client, were you born on such and such a day? And my client says, yes, I cannot come out and say, my client said he was born on such and such a day. That's how absurd this is.

TEMPLE-RASTON: Ruiz and Harrington aren't the only attorneys crying foul. Defense teams at Guantanamo have been complaining about evidence and secrecy and rule changes for months. And that could be a problem not just for the defense, but for the entire Military Commissions system.

KAREN GREENBERG: You know, it's hard to say what's going to happen in the military trials. I think the entire thing is a very large question mark.

TEMPLE-RASTON: Karen Greenberg is with the Center for National Security at Fordham Law School. And she says it would help if the military court treated defense attorneys a like it trusts them.

GREENBERG: And the way they are treated is very much as if they're doing something suspect. That tone has everything to do with whether or not the defense is going to say, yes this was a fair trial. And ultimately, you need the defense at the end of these trails to say, this was a fair trial.

TEMPLE-RASTON: The cases under the revamped commissions system have barely started. But if the defense attorneys emerge months from now feeling the military commissions system is stacked against them, the system may be seen as a failure.

Dina Temple-Raston, NPR News. Transcript provided by NPR, Copyright National Public Radio.