US seeks to bar testimony on torture in military trial of alleged 9/11 plotters

Published on WSWS, by Don Knowland, Oct. 26, 2012.

Pretrial arguments began last week and continued Wednesday in the military commission trial in Guantánamo Bay, Cuba of the alleged 9/11 plotters over the US government’s attempt to suppress any testimony by the defendants on their torture at the hands of the CIA.

The five defendants, including the alleged 9/11 mastermind Khalid Shaikh Mohammed, are charged with war crimes. Prosecutors are asking for the death penalty.  

In April, the prosecution filed a motion for a “protective order.” In that motion and a subsequent court filing, the government asked the presiding military judge to exclude from evidence as presumptively “classified” any and all statements by the defendants about their detention and abuse in CIA custody. The request extends to their treatment and conditions since they were transferred to Guantánamo.

The government’s rationale is that because the defendants were “detained and interrogated in the CIA program” of secret detention, torture and abuse, they were “exposed to classified sources, methods, and activities” and therefore must be gagged to avoid revealing what the government did to them.

The reason for the government’s request is nakedly political. It wants to ensure that the public will never hear the defendants’ accounts of the rendition, torture and black site detention to which the CIA subjected them—in short, the US government’s own war crimes. A secondary government motive is to keep the defendants from testifying to possible links between their activities and US intelligence operatives prior to the 9/11 attacks.

The government’s argument is Orwellian. By its logic, no defendant could ever testify to abuse. Nor could plaintiffs who might seek redress in the civil courts for being unlawfully renditioned or tortured … //

… The prosecutor has a power unknown in US federal court or any international tribunal: he can unilaterally veto a defense attorney’s decision to call a witness. The lawyer must then argue its merits with the prosecutor in front of the judge. This locks in a prosecutorial advantage that undercuts an effective defense.

This is on top of severe limitations placed on communications between the defendants and legal counsel, and restrictions placed on defense access to exculpatory evidence. The rules are designed to allow the prosecution free rein on evidence, but keep the defense tightly controlled.

The presiding judge, US Army Colonel James Pohl, was expected to start ruling on these and other motions by Thursday, but a hurricane approached Wednesday evening and the proceedings were shut down.

In a related development, the prosecution’s ability to prove that the crimes alleged meet the standard of war crimes under the 2009 law authorizing military commissions suffered a potentially devastating blow last week. One of only two cases tried to a verdict by the military commissions at Guantánamo, against Salim Hamdan, Osama bin Laden’s driver, was reversed on appeal.

Hamdan was convicted in 2008 of providing material support for terrorism. A unanimous three-judge panel of the conservative District of Columbia Circuit found that this charge was not a war crime, and thus was outside the reach of the military commissions. The court noted that Hamdan was found guilty based on conduct that took place from 1996 to 2001, but the charge of material support for terrorism came into effect only with the passage of the Military Commissions Act of 2006.

Zachary Katznelson, a senior ACLU attorney, said the decision “strikes the biggest blow yet against the legitimacy of the Guantánamo military commissions, which have for years now been trying people for a supposed war crime that in fact is not a war crime at all.”

The charges against Khalid Shaikh Mohammed and his four co-defendants do not include material support for terrorism.
(full text).

Comments are closed.