Kafkaesque scenes as secrecy rules in 9/11 death penalty court hearings

A red light sits between the military judge and the court security officer. If any information considered “classified” is disclosed in court, either man can press a censor button and the red light will flash.

An audio feed broadcasting the proceedings to a public gallery on a 40-second delay is cut. White noise is fed into the gallery speakers where observers sit behind three panes of soundproof glass, blocking out sound from the courtroom.

Welcome to the Guántanamo military commissions. This week the court has been hearing pretrial motions in the death penalty cases against the five men accused of planning the hijackings of four commercial aircraft in the September 2001 attacks that led to the deaths of 2,976 people in New York, Washington and Pennsylvania.

Reporters, two sketch artists and non-government organisations watched proceedings from the public gallery this week. Five family members of the 9/11 victims and two New York firefighters injured at the World Trade Center also attended.

The courtroom set-up leads to comical moments. The delay in the audiovisual feed means the gallery can see the judge sitting down in court while his seat remains empty on the television screens for 40 seconds.

Testimony taken from witnesses appearing via a sketchy video-link from the US adds even more comedy, and delays – many, many delays.

The blizzard of acronyms and numerical codes to identify each motion, coupled with rigorous security procedures to be followed in and around the court, turns this US military legal action into a Kafkaesque other world.

There was confusion in court yesterday when defence lawyers claimed the audio feed to the gallery and to the interpreters translating the proceedings for the defendants was cut off briefly. (It later transpired that a prosecution lawyer forgot to press their microphone button when they spoke.)

Analysis of intelligence
Prior to the interruption, Guántanamo's former commander, Admiral David Woods, was being questioned by navy commander Walter Ruiz, who represents the alleged money courier to the 9/11 hijackers Mustafa al-Hawsawi, on the collection and analysis of intelligence at the US naval base.

Prosecutors become jumpy when the subject of intelligence is raised in the hearings.

At pretrial hearings in January a mystery censor triggered the alarm when the hearings turned to the secret CIA “black sites” where the 9/11 accused were held until their transfer to Guántanamo for trial in September 2006.

Yesterday, one of the prosecution lawyers, Joanna Baltes, raised concerns about Ruiz's line of questioning. Ruiz facetiously told the judge that he could use the term "the agency who shall remain nameless," if it was preferred, referring to the CIA, the constant elephant in this courtroom and the government agency that runs the secretive Camp Seven on the base that holds the so-called high-value detainees including the 9/11 five.

After conferring privately with Baltes and another prosecutor, Ruiz returned to the microphone, somewhat agitated."I will not be threatened by the prosecution; I will not have that in court," he said.

Closed doors
The proceedings then broke off for a private session. Any time information deemed potentially "classified" (secret to everyone else) is mentioned, the proceedings move to a private session to decide whether the evidence can be heard in open court. This is called a "505H" hearing.

Yesterday defence lawyers again objected to the accused being excluded from the private hearing but the judge overruled them.

Deciding what is classified or not in a case involving five men who were detained, interrogated and tortured in secret prisons over several years can grind these proceedings down to a snail’s pace. This, along with the five attorneys representing each of the defendants responding to each issue, can prolong already complex hearings.

Pretrial hearings this week were dominated by defence arguments that the accused should be entitled to participate in their defence, that they should not be excluded when the CIA’s “rendition, detention and interrogation programme” was discussed and that the military commissions system was meddling in their sacred attorney-client relationship.

On Monday and Tuesday the defence questioned Admiral Bruce MacDonald, who ran the military tribunals until March, about his lack of experience in death penalty cases and complained that he gave defence lawyers inadequate resources and time to mount a defence and mitigate the capital charges.

The defence also sought confidential reports from the International Committee of the Red Cross on the confinement conditions of the five accused, a move resisted by the humanitarian group on the basis that it would undermine its work.

David Nevin, lawyer for self-proclaimed 9/11 mastermind Mohammed Sheikh Mohammed, objected to the prosecution's attempt to exclude the accused from certain pretrial hearings relating to their interrogations.

Cruel punishment
Mohammed should – under the eighth amendment right to protect against cruel punishment – be allowed to hear classified information if the prosecution was seeking the court's authority to kill him at the end of his trial, he said.

James Connell, a lawyer for the alleged 9/11 co-conspirator, Ammar Al Baluchi, Mohammed's nephew, told the court that the rules on classified information blocked him from discussing with his client the FBI's account of an 2007 interview with him on which much of the evidence against him is based.

'This is justice'
"The process would have to be a lot different, a lot more inclusive, participatory and transparent before we can trust that whatever comes out of this is justice," Connell told reporters.

Prosecutors want the trial to start in late 2014 but that could be optimistic. Ruiz said this week that the defence believed it could be between three and five years before the trial starts.

When the military commissions system was changed by legislation in 2009 President Barack Obama said the revised court system would protect "sensitive sources and methods of intelligence-gathering" while upholding America's "deeply held values" – values that any accused should be entitled to a fair trial.

The tug-of-war between the prosecution and the defence this week in “Gitmo” on pretrial issues reflects the tension between these two conflicting forces.