Defense attorneys representing defendants at Guantánamo Bay realized they could not rely on the government’s IT network when the government, in trying to replicate files, lost 7 GB of data – including mitigation investigation notes and potential witness and expert resource files. Later, defense attorneys learned that their Internet usage was being tracked.

The Alleged U.S.S. Cole Bomber (Military Commissions Update)

The old phrases “you would have to see it to believe it,” and “you cannot make this stuff up” come to mind when thinking about the latest sessions of the Guantánamo military commissions. During the weeks of October 15 and October 22, hearings were held in the cases against the alleged 9/11 co-conspirators and the alleged USS Cole bomber before Judge Pohl in Guantánamo Bay, Cuba. The military court is closed until 2013. And, thank goodness, because after the October hearings observers’ heads are likely still spinning from the latest happenings.

In 2008, Ali Hamza Ahmed Suleiman al-Bahlul was convicted at Guantánamo of conspiracy, providing material support for terrorism, and solicitation to commit war crimes. Nearly eight years later, the D.C. Circuit’s consideration of his case has left behind a trail of unanswered legal questions.

The FBI is alleged to have attempted to convert a member of a defense team into a confidential informant. This allegation brought Guantánamo Bay military commissions proceedings to a halt in April 2014.

The attorney-client privilege is among the most fundamental rights possessed by a defendant represented by counsel in a criminal case. Likewise, the right of a defendant to be present during trial and the right of confrontation are constitutional requirements for a fair trial. Why then does the government get away with infringing on these rights when a case involves national security information?

During the Jan. 28-31, 2013, hearings at “Camp Justice” at Guantánamo Bay, Cuba, it became apparent that a third party, outside the strictures of the military commissions, had been listening to proceedings and had the ability to close the courtroom to the public, without the knowledge of the judge and without going through proper legal procedures.

In July 2012, former NACDL law clerk Ashley Chin Richardson observed the military commissions from Ft. Meade. She shares her experience with readers of The Champion, expressing shock at the blatant imbalance in resources afforded the defense team and pointing out that in the commissions a defendant is not automatically allowed access to all the evidence against him.

A key component of fairness is to ensure that the defense is provided with the resources it needs to zealously represent the individuals being held at Guantánamo Bay.

Additional hearings were held recently in the 9/11 terrorism trial of Abd al-Rahim al-Nashiri, the alleged U.S.S. Cole bomber. On April 11 and 12, 2012, Judge Pohl finally heard oral arguments on constitutional challenges to the Guantánamo military commissions system, in addition to several discovery motions. The judge’s interactions with counsel and his forthcoming rulings will set the road map for the 9/11 case and any future commissions cases at Guantánamo. Al-Nashiri is arguably the most important case in Guantánamo.