By Michael Kaufman, Staff Attorney
This past week, I traveled to Guantánamo Bay to observe military commission hearings, continuing the ACLU’s long-standing commitment to be present at each and every hearing of these deeply flawed tribunals. Six days of pre-trial hearings were scheduled in the capital cases of the five defendants alleged to have participated in the 9/11 attacks. Unfortunately, Mother Nature had other plans and the hearings were postponed due to Tropical Storm Isaac’s then-imminent arrival. But during my brief time in GTMO, I had a window into the military commission proceedings that left me deeply concerned about their fairness and legitimacy.
During my time in GTMO, I had the opportunity to hear from prosecution and defense attorneys, and a number of other people involved in the military commissions. Through these conversations, I was struck by the commissions’ departures from basic features of federal court practice that I had taken for granted as essential to any legitimate legal system: transparency and adequate funding for the defense.
Two examples demonstrate these problems. First, the government has asserted that any statement by the defendants should be treated as “presumptively classified” because they were “exposed” to classified interrogation methods while in CIA custody. To date, the government has deemed classified even the defendants’ statements relating to the government’s well-established and acknowledged use of torture and other inhumane and illegal interrogation techniques. The government has then used that overly-broad classification as the basis to seek closure of the military commission to the public whenever torture, abuse and CIA prisons might be discussed. The ACLU has filed a motion before the military commission challenging this perverse use of classification to try to cover up government wrongdoing. That motion will be argued at the next hearing, now rescheduled (weather-permitting) for October.
The absurdity of the government’s position was starkly illustrated during a press conference with counsel for both parties. A reporter asked defense counsel whether a defendant wanted to be present in court for the upcoming hearings, but defense counsel stated he could not respond because the answer would be “presumptively classified.” While the moment was humorous, there are real harms that result from over-classification: it limits defense counsel’s ability to use information learned from their clients to develop a defense, and it limits the public from learning about our government’s shameful history of torture.
There are other ways in which the military commissions have frustrated defense counsel’s ability to represent their clients. Several of the motions on the calendar concern defense requests for funding to retain experts who they claim are essential to their investigations. However, these requests were denied by the Convening Authority – a Department of Defense political appointee who oversees not only funding for the defense, but also the selection of trial judge, the jurors and the charges.
Leaving defense resources at the mercy of the Convening Authority presents obvious and unacceptable conflicts of interest.   Worse still, the defense must notify the prosecution of any request for funding – and permit them to oppose any such request – which forces the defense to reveal confidential case strategy information. These restrictions do not apply to the prosecution, which does not need to seek the approval of the Convening Authority for individual funding requests or notify the defense of their proposed expenditures. It is unfathomable that this kind of unfair advantage to the prosecution exists in a trial that could potentially result in a death sentence.
To have any chance at being viewed as just, the military commissions must be fair and transparent. I hope that Judge Pohl will take steps to address these issues during rescheduled hearing dates in October.

By Phyllida Burlingame, ACLU of Northern California