Gitmo Defender Blasts 9/11 Trials as ‘Farce’

     WASHINGTON (CN) — Guantanamo’s chief defense counsel had harsh words for the military commissions system Wednesday, as questions linger about what to do with the prison’s remaining detainees.
     With the sun setting on President Barack Obama’s administration, it seems unlikely that he will be able to deliver on his promise to shutter the controversial detention center.
     “To put it simply, the military commissions in their current state are a farce,” Brig. Gen. John G. Baker said. “Instead of being a beacon for the rule of law, the Guantanamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.”
     A brief hearing for Guantanamo detainee Majid Khan Wednesday underscored how badly the commissions are going, Baker said.
     Khan pleaded guilty in 2012 to joining al-Qaeda, serving as a courier for money linked to a 2003 Indonesian hotel bombing and agreeing to be a suicide bomber in an unfulfilled plot to assassinate former Pakistani President Pervez Musharraf.
     As part of the plea deal, Khan agreed to delay sentencing until this year.
     “Today they pushed that sentencing hearing back three more years,” Baker said. That means a trial for Khan is still at least three years away.
     Baker — the keynote speaker at a one-day conference on the intersection of human rights in a growing national security state — spoke remotely from Guantanamo.
     He ran down a laundry list of problems, chief among them government interference in the attorney-client relationship, that have plagued the military commissions since their inception.
     That includes the alleged use of listening devices to spy on defense attorney-client meetings and courtroom conversations, and the defense revelation that a prior defender on the 9/11 case was convinced by the FBI to become a confidential informant.
     Baker also noted that an unnamed third party had the ability to stop the military commissions at will — without the judge’s knowledge or consent. And during a 2015 hearing, one of the 9/11 defendants claimed to recognize a court interpreter from a black site where he was interrogated and tortured, Baker said.
     Though Obama has reduced Guantanamo’s detainee population to 61 through the Periodic Review Board process, questions remain about what will happen to unreleased detainees under a new administration.
     Some of Wednesday’s conference focused on the continued classification of the CIA torture program, and how it could impact what happens to them.
     “The military commissions have a foundational problem,” James Connell, a 9/11 civilian defense attorney for Ammar al-Baluchi, said in an interview.
     “They were not set up to deliver justice like a court-martial or a U.S. court. They were set up with a particular goal in mind, which was to keep evidence of torture out of the public view,” he said.
     That has led to some of the delay problems with military commissions, including the years-long discovery process, Connell added.
     Baker noted that it has taken the 9/11 prosecution team more than four years to review millions of pages of discovery, and that it has still not produced all of it.
     In July, Army Col. James Pohl, the military judge presiding over the case, said he was dissatisfied with substitutions the prosecution provided for classified evidence about the CIA torture program.
     Still, chief prosecutor Army Brig. Gen. Mark Martins has said the prosecution will meet a Sept. 30 discovery deadline.
     But Baker says the defense will only get a few thousand of the millions of pages the prosecution reviewed.
     “Something’s wrong with that math,” he said.
     Despite the impending discovery deadline, Baker said he has no idea when the 9/11 defense team will actually get the evidence. Additionally, he said defense pushback on the adequacy of the substitutions will cause prolonged litigation and more delays.
     But declassification of the CIA torture program could end that cycle, according to Connell.
     “It goes around in this giant circle and it doesn’t have to,” he said. “If we’re never going to use torture again, and if the president would simply declassify the torture program, then it could all be handed over to us.”
     Then sorting through millions of pages would become a defense problem, not a prosecution problem, he noted.
     “A lot of the weird things that have happened in the military commissions system — the listening devices, the external body turning off the military commission, the turning of one of the defense team members — are all driven by the paranoia around evidence of torture,” Connell said.
     Given that the unclassified Senate Intelligence Committee report on CIA torture paints a broad picture of the torture program, Connell wonders what the government is trying to hide at this point.
     “It is strange, the extraordinary lengths in twisting the court-martial system and the U.S. justice system into these military commissions for this purpose of covering up torture. It is almost like the goal of covering up torture has taken on a life of its own, beyond the actual need to suppress information about torture,” he said.
     Republican presidential candidate Donald Trump has vowed to keep Guantanamo open, and to load it up with “bad dudes.” He has also promised to revive the torture program.
     “The only rationale for keeping torture details secret so that some future adversary can’t prepare for torture is the idea that you might use it again,” Connell said.
     “Someone must be thinking we have to keep this option on the table.”

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