Guantanamo: Prosecutions

Defense Counsel File Motions Closed-Door Military Commission Proceedings

By Raffaela Wakeman
Wednesday, April 25, 2012, 3:03 PM

Defense counsel for the five alleged 9/11 co-conspirators  have filed several motions challenging the closed-door nature of some military commission proceedings.

Although the filings haven't been released (they need to be reviewed and redacted first), the defense attorneys released two statements regarding them.

The first, dated Friday, April 19th, says:

Today defense attorneys for alleged 9/11 logistical co-conspirator Ali Abdul Aziz Ali filed a motion challenging a key secrecy rule at the military commissions. "Guantanamo Bay applies a rule that everything its prisoners say is ‘presumpively classified,’" said James G. Connell, a DoD civilian representing Ali. "Presumptive classification contradicts both our democracy’s need for transparency and its rules for protecting national security. It only serves to hide the truth about the torture these men experienced." The motion is scheduled to be heard at the arraignment on May 5.

The motion argues that presumptive classification violates President Obama’s 2009 Executive Order governing classification, which includes a presumption that information should not be classified unless it meets strict criteria relating to national security. Under federal law, only information relating to nuclear weapons—called "Restricted Data"—is presumed to be classified; all other information must be reviewed by a government official called an "original classification authority" before it can be classified.

The motion will not be available to the public until the military commission has reviewed it and made any redactions it feels necessary.

 The second, released yesterday, April 24th, says:

Attorneys for the accused 9/11 conspirators have challenged the military commissions practice of conducting closed-door hearings on legal issues. "These men have suffered the worst excesses of secrecy," said James Connell, attorney for alleged logistical supporter Ali Abdul Aziz Ali. "This trial needs to be conducted in the open, where victims of the 9/11 attacks, the media, and the world can see what is happening."

A set of motions filed today and Friday challenge so-called "802 conferences" in which the military officer presiding over the military commission discusses issues with attorneys outside the presence of observers. Although the May 5 arraignment will be the first time the 9/11 defendants have appeared in a military commission since 2009, observers of the USS Cole case have noted that the military commission seems to address a number of issues behind closed doors. Colonel James F. Pohl, the military officer presiding over the USS Cole case, has also detailed himself to the 9/11 case.

Cheryl Bormann, attorney for Walid bin ‘Attash, contrasted the practice of 802 conferences with the rhetoric of "transparency" from military prosecutors. "The government is opposed to giving the press and public access to what happens behind closed doors. When the Chief Prosecutor claims the new and improved military commissions are transparent, he must not define transparent the same way we do - meaning, the public gets to see the process. We are disappointed that in a case with this much at stake, the prosecution does not mean what it says. We expect more from a fair system of justice than a series of public relations appearances and talking points from the prosecution."

This motion is the latest in a series of challenges to secrecy in the military commissions. Earlier this month, a media coalition challenged a proposed closed hearing about torture in the USS Cole case, but Colonel Pohl’s ruling avoided the issue. Last week, attorneys for Ali Abdul Aziz Ali filed a motion contesting "presumptive classification" at the military commissions, which requires that all statements of Guantanamo prisoners on any topic be treated as classified. Colonel Pohl is expected to address the two most recent motions at the May 5 arraignment.