吃瓜大本营

I鈥檓 writing from Guant谩namo Bay, where pre-trial proceedings in the military commissions prosecution of the 9/11 defendants have restarted after an 18-month delay. It has been a faltering start, to say the least: . .

One of the defendants, Walid Bin Attash, asked about the procedures that would allow him to represent himself because he could not trust the independence of the military commission, including his lawyers. All the parties then had to grapple with how self-representation would work in this novel context. But lurking behind these dilemmas is the real issue that has so often derailed the military commissions: the government鈥檚 use of secrecy in what it presents as a public death penalty trial.

As we have pointed out for years, the military commissions are unfair, unconstitutional, and plagued by excessive secrecy. These challenges make it extraordinarily difficult for the defense attorneys to do their job. And they make it even harder for defendants to exercise the right to represent themselves meaningfully.

There are straightforward logistical impossibilities for defendants if they attempt to represent themselves. They are held virtually incommunicado in 鈥淐amp 7鈥� at Guant谩namo, holding detainees who were tortured at the CIA鈥檚 secret black sites. Defendants cannot file motions, consult a law library, communicate with (or even learn the names of) witnesses, or compile confidential legal documents.

The defendants also face the unique challenge of representing themselves when they have been tortured by the government that seeks to kill them, continue to be subjected to a 鈥溾�� that serves to retraumatize them, and are denied rehabilitation to help them cope with the effects of their torture. Conditions at Camp 7 reportedly exacerbate the continued effects of CIA torture. Bin Attash declared at the beginning of this week鈥檚 hearings that 鈥渨e are still in the black sites鈥� before the judge, Army Col. James Pohl, cut him off.

The results of torture are quite visible at the trial: As an observer, one of the most difficult aspects of these hearings is watching the guards place a particularly frail defendant, Mustafa al-Hawsawi, each morning on a chair equipped with a special pillow. As the Senate Intelligence Committee鈥檚 torture report documents, al-Hawsawi was subjected to 鈥渞ectal exams conducted with 鈥榚xcessive force鈥欌�� while detained at a secret CIA prison. CIA records indicate that the result was 鈥渃hronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.鈥� He now weighs less than 100 pounds and sometimes bleeds on his clothing. His medical records, like so much else at Guant谩namo, are even from his counsel.

But perhaps the single biggest obstacle to self-representation is government secrecy. Defendants in the military commissions are not permitted to see classified evidence. That鈥檚 the case even if the government tries to use it to put them to death, and even if it could help their case. How can someone defend themselves when they can鈥檛 see the evidence? This problem isn鈥檛 confined to the self-representation context; even security-cleared defense counsel at Guant谩namo are sometimes kept in the dark about relevant evidence.

These difficulties could be left for another day, suggested the judge. Perhaps, if a defendant chooses to represent himself, the military commissions could muddle through whatever problems cropped up along the way. Maybe the most obviously unfair scenarios would never come to pass, he hypothesized. At that point, former Secretary of Defense Rumsfeld entered the frame: Are concerns about the viability of self-representation in the military commissions merely a case of 鈥溾��?

So many questions arise when you try to invent justice as you go along.

So many questions arise when you try to invent justice as you go along.

The government has chosen to sidestep our tried and true federal courts and created a novel death penalty court here at Guant谩namo. Without a doubt, there are a great number of unknown unknowns in this unprecedented proceeding. But as counsel for Ammar al-Baluchi observed, 鈥渢here are huge known unknowns.鈥� Given the government鈥檚 repeated and acknowledged efforts to rely on secret evidence and simultaneously hide that same evidence from the accused 鈥� and the public 鈥� a wide array of problems for a defendant who seeks to represent himself are easily predictable.

As David Nevin, counsel for defendant Khalid Sheik Mohammad, has explained, secrecy is 鈥渢he live wire of this case.鈥� At some point, Nevin suggested, the court will have to decide if it wants this trial to be a 鈥渞eal case鈥� or merely a fundamentally unfair exercise of government power. And whether it鈥檚 a 鈥渞eal case鈥� depends in part on whether the government succeeds in hiding from the American public the details of some of the most important trials in our history.

Perhaps the moment that most perfectly encapsulated the week of hearings so far happened at the end of the second day. Defense counsel had submitted a motion containing information that the government had decided was so secret that special permission was required to read it. But the government had not cleared the judge himself to know the information. After consulting with the court security officer, the judge refused to accept the defense鈥檚 submission.

鈥淚t鈥檚 hard for me to know what it is without knowing what it is,鈥� he said. The same could be said for the military commission itself.