The court heard pretrial motions this week in the Guantánamo death penalty cases of Khalid Sheikh Mohammed and the four men charged with 9/11 crimes in the Bush administration's military commissions.
Given that this is arguably the most high-profile capital trial ever, you might think that the government prosecutors would be killing the defense with kindness when it comes to resources. You might expect that they would take the position that most federal prosecutors take – give them what they want, judge, so we don't have to try this twice. Instead, part of the week was spent wrangling over defense requests for expert psychiatrists, accurate transcripts, and some other pretty modest items.
The defense requests included one for a telephone between Gitmo and the secure facility in Washington, so counsel would be able to talk with their clients, who are, in effect, their co-counsel (since most are representing themselves, with the help of the ACLU's John Adams Project lawyers and their military counterparts). Another was for a courier – one courier, thus bringing the grand total to TWO couriers – to get pleadings and papers back and forth from the detainees' cells to the secure site on Guantanamo.
Bob Swan, the chief prosecutor, told the military judge that there was no way to make the 40,000+ pages of materials searchable for the clients representing themselves, but triumphantly announced "a 287-page index!" When asked if it could be in Arabic, he said, "No". He said what he's been saying all week in response to grievous translation problems: we already gave you translators; use them. (Each team has its own translator – well, except for the Azziz Ali team, whose government-sponsored translator wasn't up on legal terminology.) When it came to a really "expensive" request like a mental health expert for Ramzi bin al Shibh whose competence is in question, the government of course denied it outright.
The prosecutor's refrain of the day was: "No." No telephone, no courier, no Arabic transcripts or index or files, and no experts. No, the Constitution doesn't apply to these men. And absolutely no visits to the infamous Camp 7, where the so-called "high value" detainees are held, so no to the request to evaluate conditions of confinement that would be commonplace even in a capital case without allegations of maltreatment, rendition, and torture-induced insanity.
A possible motive emerged at the end of the day, when Swan claimed that "these defense lawyers" would "rather be in Washington D.C." than at Guantanamo seeing their clients -- which of course is nonsense aimed at driving a wedge between clients and counsel. The prosecution, it seems, longs for the days in June when tortured men held incommunicado for years seemed ready to forego trials altogether and simply agree to their own executions. It appears that the prosecution's problem is not just with the specific requests that the defense counsel are making but with the very presence of defense counsel in the first place.