Detainees May Be Denied Evidence for Defense

By Josh White
Washington Post Staff Writer
Sunday, June 15, 2008

When Khalid Sheik Mohammed and other alleged co-conspirators in the Sept. 11, 2001, terrorist attacks seek to represent themselves in military commissions trials in Guantanamo Bay, Cuba, they may be barred from reviewing highly classified evidence and might not have access to the intelligence agents who interrogated them, according to the Pentagon's Office of Military Commissions.

The Justice Department has argued that the Supreme Court's decision last week granting the Guantanamo detainees the right to challenge their detentions in U.S. courts should not affect the military trials process. The department contends that the government plans to go ahead with military commissions for those who are facing war crimes charges.

Though the top legal adviser for the commissions process, Air Force Brig. Gen. Thomas W. Hartmann, has said that the trials would be "fair, just and transparent" and that detainees would have full access to the evidence against them, Pentagon officials have now backed off of those claims. The Office of Military Commissions said last week that defendants representing themselves might not get access to information about their interrogators and that secret information might have to be redacted in order to be shared with them.

"If classified information is presented to the jury, the accused will see it, no exceptions," according to the Office of Military Commissions' written responses to Washington Post questions about how the military commissions will deal with classified evidence in the Sept. 11 case. But a further explanation reveals that classified contents of certain materials could be replaced by summaries and blacked-out documents. "It is possible that an accused representing himself will not be able to directly review some evidence; in such circumstances, his standby defense counsel might be involved."

It is unclear, however, what role the standby counsel would be allowed to play and how far the judge would let him go in cooperating in their client's defense. Mohammed, Tawfiq bin Attash and Ali Abdul Aziz Ali have been approved to represent themselves at trial; Ramzi Binalshibh and Mustafa Ahmed al-Hawsawi have hearings pending to determine their competency to do so.

The defendants, some of whom have already said they were tortured by CIA agents while held in secret prisons overseas, almost certainly will request to use highly classified evidence relating to their captures and alleged confessions under duress. Legal experts said that, in such cases, it would be critical to challenge the confessions as illegal because of coercion, even if the government did not seek to use them, because of the legal doctrine that if the defendant was abused, all of his following statements would then be tainted and inadmissible.

But the Office of Military Commissions will not guarantee that the defendants will be able to question and confront their interrogators or captors, saying that the "identities of intelligence interrogators are normally classified." Though the CIA has acknowledged using aggressive interrogation techniques, including waterboarding, it is possible that the detainees will never learn their interrogators' names or have access to them.

Gerald T. Zerkin, a lawyer who represented convicted terrorist Zacarias Moussaoui in his federal trial in Alexandria, said that when he was "stand-by counsel" in the case, he could not share classified information with Moussaoui, and summaries of some high-value detainees' interrogations were offered to the court, with no indication of how, when or where the statements were obtained.

"He didn't have access to classified information," Zerkin said. "You know information about the trial, you want to advise him, and you can't tell him what it is. How do you suppress statements if you can't have access to the officers to ask them questions about how the statements were taken, and they can't testify? So it will be secret trials. It just shreds the Constitution into itty-bitty pieces."

The government's position contrasted with earlier public statements, in which Hartmann and military prosecutors vowed to share everything with the defendants. "As to classified, there will be no secret trials," Hartmann said when he announced the charges in the Sept. 11 conspiracy case last February, before the defendants declared they wanted to represent themselves. "Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to the finder of fact, to the jury, to the military tribunal will be reviewed by the accused, subject to confrontation, subject to cross-examination, subject to challenge."

Decisions about classified evidence will be up to the military judges presiding over military commissions cases, and Hartmann has said he will allow prosecutors to put forward classified evidence derived from the CIA's enhanced interrogation techniques and leave it up to the judge to determine its legality. Still, prosecutors could try to keep some classified evidence out of the defense's hands.

"If the military judge agrees that the classified information is relevant and material to the defense and that there is no reasonable alternative, then the military judge may order the prosecution to disclose the classified information or dismiss the charge and specification to which the classified information pertains," according to the e-mailed statement.

Eugene R. Fidell of the National Institute of Military Justice said he thinks detainees must have a way to confront classified evidence and the people who interrogated them.

"Otherwise, I don't see how the interest in public confidence in the administration of justice can be served," Fidell said. "Does he have a right to challenge the circumstances under which his statements were made or not? Does he have a right to say how he was treated or not?"

Classified information requires special handling in a Sensitive Compartmented Information Facility -- known as a SCIF -- and prosecutors have indicated that they would ensure that such a facility would be made available for the defendants' use. The entire courtroom complex at Guantanamo is considered a SCIF, and there are five small holding cells inside the compound where detainees are held before court hearings.

"How they are going to do this, I have no idea," said Navy Lt. Richard Federico, who has been assigned to represent Binalshibh. "These individuals have been subject to the very things that are classified, including sources, methods and techniques. But they don't have a clearance, obviously, so I have no idea how they're going to rectify that."

View all comments that have been posted about this article.

© 2008 The Washington Post Company