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Gitmo Military Commissions on Hold Again

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September 22, 2009

Yesterday, the ACLU’s Denny LeBoeuf was in Guantánamo to observe the restart of the military commission hearings. But the hearings were brought to another halt almost as soon as they began: the military judge granted the government’s motion to stay all proceedings in the case against the five alleged 9/11 conspirators until the Obama administration decides whether it will transfer the cases to federal court. The administration’s deadline to make this decision is November 16.

Cynthia Hujar Orr, President of the National Association of Criminal Defense Lawyers (NACDL) said of Monday’s events:

These men have been held for years andsubjected to physical and mental abuse, and until recently without access to counsel… The absence of rules has allowed the Convening Authority and prosecutors to hamstring defense counsel’s efforts to represent their clients. The competency of two of the defendants to stand trial or plead guilty is seriously in question, and yet the defendants have been denied their Fifth and Sixth Amendment right to be examined by independent capital case-qualified mental health experts, which would be a due process violation in any state or federal court in the country. This is not in any way American justice.

Three defendants are represented by attorneys from the John Adams Project, a joint effort of the NACDL and ACLU to assist under-resourced military defense counsel in the representation of Guantánamo detainees.

The decision to stay the proceedings was likely influenced by two emergency petitions that were filed in the D.C. District Court of Appeals last week on behalf of two detainees, Ramzi bin al-Shibh and Mustafa al-Hawsawi. The petitions seek to stop further action in the cases and declare the military commissions unconstitutional.

None of the five defendants, including the three who have chosen to represent themselves in the proceedings, opposed the stay or appeared in court on Monday. Col. Robert Swann, the military prosecutor, urged the military judge to order the guards to forcibly extract the defendants from their cells and bring them to court against their will, but the judge declined to do so. It’s worth nothing that yesterday was Eid al-Fitr, the day that marks the end of the month-long observance of Ramadan, and a day of great religious significance for observant Muslims worldwide.

Col. Swann also pressed the military judge to rule on detainee Khalid Sheikh Mohammed’s motion to dismiss all his lawyers, but the judge deferred ruling on any of the motions until after the administration announces the forum for trying these defendants in November. The prosecution informed the media that the prospective forum for the 9/11 trial has been narrowed to five venues: leaving it in the Military Commissions for a trial at some other site after Guantánamo closes, or removal to federal court in one of four locations: Eastern District of New York, Southern District of New York, Eastern District of Virginia, or the District of Columbia.

As we’ve said time and time again: the military commissions are incapable of rendering justice, and we hope that the administration will put an end to these proceedings once and for all by moving any legitimate terrorism cases to our tried-and-true criminal justice system.