At Gitmo, Battles Over Red Cross, Death Penalty

The latest round of hearings in the Guantanamo Bay military commission trial against the alleged 9/11 conspirators veered into strange territory Tuesday when a lawyer for the International Committee of the Red Cross (ICRC) argued against a defense request for the government to turn over information from the Red Cross’s consultations about the detention and treatment of the 9/11 defendants.

The ICRC has consulted with Defense Department officials on the detention and treatment of the 9/11 defendants. The defendants’ lawyers have claimed that because the Defense Department (which is acting as prosecution in the Guantanamo military commissions) has the information from its consultation with the ICRC, the defense should also have access to the information that applies to their clients.

Matthew MacLean, an attorney for ICRC, testified that, to maintain the Red Cross’s objectivity and unique access to observe prison conditions around the world, the ICRC cannot divulge the information it gathers and discusses with states, unless it chooses to do so. Several of the defendants’ attorneys argued that there was no relevant U.S. law that would prevent them from receiving the information. Others argued that because all defense attorneys are technically Defense Department employees, that they may be able to access some classified version of the information. The prosecution agreed with the ICRC, but was willing to discuss “options” with the organization. There was never any real indication of what that actually means.

Other highlights from Tuesday? The defense attorneys battered former Gitmo Convening Authority Vice Admiral Bruce MacDonald (who testified by video link), in an attempt to portray him as inexperienced in death penalty cases and lax in his decision to recommend the case to be tried as a death penalty case in military commissions. This questioning, of course, was interrupted by technical difficulties (which are beginning to seem par for the course here on only the second day), when Admiral MacDonald’s video feed cut out.

The afternoon finished with Admiral MacDonald (after the video link was fixed), and the prosecution attempting to rebut defense points on MacDonald and his obligations as Convening Authority, even diving into minutia like the hourly wages of defense translators, before Judge James Pohl dismissed a relieved Admiral MacDonald from the stand.

As the hearing broke for the day, one thing stuck with me. During a dispute over how much time that the defense attorneys had to work with their clients, KSM attorney David Nevin asked prosecutors how much time they had spent building the case against his client. Judge Pohl turned to Nevin, incredulous, and asked, “An event occurred 12 years ago, and your question is how long the prosecution took to build their case?” Twelve years, and we’re still plodding through pre-trial military commission hearings here at Guantanamo.


Published on June 19, 2013


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