Chaos, controversy mark latest military commission hearings in Guantanamo

This report was produced in partnership with Frontline.

The pre-trial hearings for 9/11 mastermind Khalid Sheikh Mohammed and four co-defendants at “Camp Justice,” in the naval base in Guantanamo Bay, Cuba, stalled midway through the week.

The hearings this week were to address a number of defense motions before the court, including seeking to end government monitoring and censorship of attorney-client communications, compelling witnesses to testify for the defense, and requesting information about the treatment of the men while in CIA custody and in the Guantanamo prisons.

Confusion ensued on Monday, the first day of the hearings, when a mechanism to prevent classified information was triggered, leading to the courtroom feed being cut off. It’s a standard procedure, but no one knew who had hit the censor button, a question that has still not been publicly answered. It’s believed to have been someone at the CIA.

On Tuesday, commission Judge Col. James Pohl, announced that the more controversial motions on the court docket for the week — arguments from the defense to make available information about the CIA’s rendition, detention and interrogation program, and evidence from the “black sites” where Mohammed was held — were to be pushed back to later hearings scheduled for February and April.

The defense is trying to get details of the treatment of all five defendants’ — such as Mohammed’s infamous 183 waterboarding sessions while in CIA custody — on the record in an effort to undermine the case against them. The defense is arguing that the treatment amounted to illegal pre-trial punishment — a concept derived from military law, and the same claim made unsuccesfully by Bradley Manning’s defense last December.

The defense also asserts that the treatment amounted to “outrageous governmental conduct” — a legal concept that essentially holds that the government’s behavior was so beyond the pale that they no longer hold the legal authority to convict. The prospect of the government dismissing charges for a crime on the scale of 9/11 seems unlikely, however, the same arguments could be advanced to make the case for mitigating the sentencing of the men, should the cae get to that stage.

Right now, it looks as though that is a very long way away.

The court was to spend the latter part of the week resolving a number of defense motions that seek to compel the production of certain witnesses. On Tuesday, Judge Pohl rejected a defense motion to overturn a commission rule that, among other things, gives the prosecution the right to approve and reject defense witness requests.

Navy Cmdr. Walter Ruiz, the lawyer for co-defendant Mustafa al-Hawsawi, said, consequently, the defense would need time to look over and adjust their witness request arguements based on the new ruling.

After getting through just one other motion, the judge cancelled Wednesday’s session, replacing it with a private meeting in which he and counsel for both sides would “see if we can make useful time of Thursday when everybody’s going to be here anyway.”

Late Wednesday evening, word came from the court that enough resolution had been reached to hold one more session, beginning Thursday at 9 a.m.

In that hearing, Pohl ordered that no outside entity, which would include the CIA, have the power to cut off the audio feed to the hearing. Pohl also ordered the court’s convening authority, the senior military officer overseeing the trial, Navy Vice Adm. Bruce MacDonald (ret.), to testify to the court as well.

That’s scheduled for later this month.