Can a military commission defendant represent himself if he can’t see the classified evidence against him? That’s the outstanding issue in the 9/11 case taking place at the Guantánamo Bay military commissions this week.
On Monday, Walid bin Attash, one of the five co-defendants, who allegedly helped train the hijackers, announced he no longer trusts his lawyers and may want to represent himself in the commissions. He no longer trusts his lawyers, he says, because the government has so often intruded into what were supposed to be private attorney-client communications, whether his own or other defendants’. That includes the attorney-client meeting rooms being wired for surveillance, the possibility that the CIA had the ability to listen to attorney-client conversations via ultra-sensitive microphones in the courtroom, the government’s access to defense lawyers’ computers, and most recently, the revelation that the FBI tried to turn a defense team member into a government informant. As a result, bin Attash told his lawyers on Monday, he can’t trust anyone associated with the proceedings. He also told the court: “We have so many problems in the camps… we are still in the black sites,” before Judge James Pohl cut him off.
The problem with this latest stumbling block in the case – or at least, one problem – is that no one seems to know the logistics of how a military commission defendant can represent himself, especially since he’s not entitled to see much of the evidence against him.
Many of the challenges and delays in this 9/11 case, still stuck in pre-trial hearings 14 years after the 2001 terrorist attacks, stem from questions about access to classified evidence. Earlier in the case, the government claimed the defendants’ own memories of their torture at CIA black sites were classified, and they couldn’t talk about them. (Because the government is seeking the death penalty, the defendants’ treatment in custody is relevant as mitigating evidence.) With the release of the Senate Select Committee on Intelligence’s report on CIA torture last year, some of that issue, at least, has been resolved. But there’s still a good deal of information in this case that remains classified and the defendants are not allowed to see.
At the hearing Tuesday morning, James Connell, counsel for Ammar al-Baluchi , said he’s received 13,106 pages of classified evidence so far. But he has a security clearance, and has signed the Memorandum of Understanding in the case that allows him to see that material. Even after signing the Memorandum, defense attorneys can only see the evidence the prosecution allows them to. How can a defendant fairly represent himself if he can’t see any of that already limited evidence?
As happens with the military commissions, it’s not exactly clear what the prosecution, defense, or the judge have proposed, or what they were arguing in the Guantánamo courtroom Tuesday morning, because the relevant motion papers all remain under seal. (Since bin Attash only raised this on Monday, the papers were filed just yesterday and even many of the defense counsel hadn’t been able to access them. Intelligence agencies get 15 days to review and redact material in papers filed in any of the commission cases before they’re made public.) But from Tuesday morning’s arguments, it seems the court is considering an order that would allow “standby counsel” to be made available to the defendant to review classified evidence and make arguments about it to the court. The defense has proposed that defendants also be allowed to see substitutions for the classified evidence, which the judge would have to review to assure their adequacy. (The federal court in Virginia in the case against Zacarias Moussaoui used a similar process when he chose to represent himself and was denied access to certain witnesses and classified evidence.)
Given that this has come up before in federal court, where the procedures for handling classified evidence and a defendant’s Sixth Amendment rights are clear, that would be the far better place to handle this case. But so long as Congress won’t allow any of the Guantánamo detainees to be transferred to the United States, even for trial, and President Obama hasn’t made it a priority to find a way around that, the 9/11 case will remain stuck in the procedural morass of the Guantánamo military commissions.
As James Connell, al-Baluchi’s lawyer said to Judge Pohl Tuesday morning: “This is an ugly situation. I’m not trying to tell you anything about this is efficient.”