If the trial had happened in federal court in New York City, like the Obama administration originally wanted, its unlikely that the surreal shenanigans of justice that went down this week at the Khalid Sheikh Mohammeds pre-trial hearings in Guantanamo Bay would have gone so unnoticed. After all, its the trial of the century, except its being held in a secretive offshore facility and administered with rules of evidence and procedure that are still being figured out.
To refresh your memory, KSM is the alleged mastermind of the 9/11 attacks and a host of other Qaeda initiatives. He was captured by CIA and Pakistani intelligence forces in 2002 and was shuttled between CIA black sites until he took up permanent residence at the Guantanamo Bay Detention Camp in Cuba in 2006.
Its there that a military commission, a kind of ad hoc court-martial-like trial, is being held for KSM and four of his top-level al Qaeda associates. These proceedings are the War on Terrors first forays intobringing these terrorists to justice, as President Bush said in a speech to a joint session of Congress in the weeks after the attacks in 2001.
But things got weird on Monday, during a pre-trial hearing. Some of the evidence that will be used against the five defendants in the case was either obtained through enhanced interrogation techniques or is classified information that cannot be released to the public. So the courtroom at Gitmo, which was specially built for these proceedings, is equipped with a censorship button that an assigned security officer of the court presses at the behest of the judge, Army Colonel and retired judge James Pohl, when classified information is brought before the court. After that button is pressed, the audio of the proceedings cuts out, and a red light illuminates on the judges bench, letting members of the media, who are already listening in on a 40-second delay, and trial counsel know that this information is being blocked.
On Monday, it became entirely unclear who is in charge of pressing that button and by extension, who or what entity is really running this trial or monitoring the proceedings externally. According to unofficial court transcripts obtained through the Office of Military Commissions website, the censorship button was pressed during an exchange between the judge and defense counsel.
After the red light went off, Judgle Pohl said, Trial counsel, note for the record that the 40-second delay was initiated, not by me. Im curious as to why. He continued, If some external body is turning the commission off under their own view what ought to be
then we are going to have a little meeting.
Then the prosecution attorney, Deputy Trial Counsel Joanna Baltes suggested that she might have an answer. I understand and I can provide explanation at the 505 (h) hearing, describing a post-motion hearing about trial procedure.
The suggestion that the prosecution, which is the representative of the United States Department of Defense, knew more than the judge set off defense counsel: Your Honor, on behalf of Mr. Mohammad I would like to know who has the permission to turn that light on and off, who is listening to this, who is controlling these proceedings
A defense attorney for another of the accused echoed the same concern, adding, Before we can proceed any further we can only assume that maybe they are monitoring additional communications, perhaps when we are at counsel table.
