As I watched the arraignment Saturday of five accused conspirators in the 9/11 attacks, I was reminded of Yogi Berra. Sadly, it was a case of déjà vu all over again.
I have been going since 2004 to Guantánamo Bay Naval Base to observe the legal proceedings for accused terrorists. Over the past eight years, too little has changed.
The military commissions remain under the Obama administration—as they were under the Bush administration-- a cynical way to obscure the fact that the defendants were tortured, and that torture was sanctioned at the highest level of the U.S. government.
To that end, the government has sought with a missionary zeal to prevent any public testimony or evidence about how the accused have been treated while in U.S. custody. I experienced that less than an hour into Saturday’s hearing, when the word “torture” came up. Censors immediately cut off the audio feed, which was on a 40-second delay to courtroom observers behind a soundproof glass.
At issue was the defendants’ refusal to wear headphones for an Arabic translation of court proceedings. David Nevin, counsel for Khalid Sheikh Mohammed, explained that Mohammed didn’t want to use headphones because of “past experiences.” Presumably, this referred to when the defendants were forced to wear headphones and subjected repeatedly to loud music blasted into their ears while in custody.
Last week, the ACLU filed a motion challenging the government’s censorship. Although the judge did not rule on the motion Saturday, we hope he will give us a hearing when the case is set to resume June 12.
On Saturday, it was obvious that the government has continued to provide inadequate resources to the defense. One defendant has not been afforded access to a translator for more than a year. His request to have a civilian lawyer with extensive experience in death penalty cases has also been denied.
The defense is also handicapped by the rules that allow some coerced evidence and hearsay evidence, second and third-hand information normally banned in federal courts. The rules also permit the prosecution to provide the defense only summaries of classified information, but do not permit the defense to ask the judge to reconsider the issue, even if the defense discovers new facts.
The basic protections of attorney-client privilege are also not possible at Guantánamo, where the commander has banned communications between defendants and lawyers about what he has bizarrely labeled “information contraband.” That includes discussions about any U.S. personnel who may have tortured the defendants.
That’s why I was struck by the poignancy of what should have been a routine, innocuous moment, when the defense lawyers took their oath to represent the interests of their clients and uphold the Constitution. Without prompting, they added “to the best of my abilities.”
I have now been to Guantánamo six times. Nothing I’ve seen has changed my view that the military commissions are unworkable. The system is set up to guarantee convictions and hand down death sentences, nothing more.
Everyone, no matter how serious the allegations, deserves a fair trial. And the public deserves justice, which can only be achieved with fair trials.
How sad that the most important terrorism trials ever held by our nation are being conducted in a system that is woefully incapable of providing fair trials for the defendants or justice for the victims of the 9/11 attacks.