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Detainees, as Lawyers, Test Tribunal System

New York Times
by William Glaberson

July 11, 2008

GUANTÁNAMO BAY, Cuba — Walid bin Attash, a detainee with a wry smile who is charged as a planner of the Sept. 11 attacks, had a question.

Why, Mr. bin Attash asked the military judge at a hearing here on Thursday, was he barred from reading classified reports as he prepares to represent himself at the trial the Bush administration wants to be the centerpiece of its Guantánamo prosecutions.

He predicted that his yet-to-be-scheduled trial along with four other men charged in the 2001 attacks would end with executions, including his own, limiting the risk that the defendants would disclose any secrets.

“Those evidence will go with me,” he said with that smile, “those evidences will be protected better than C.I.A. and F.B.I.”

Col. Ralph H. Kohlmann, the judge, did not see the logic.

“You do not have the necessary security clearance,” Judge Kohlmann said.

So it was this week, as the military tribunal here faced its latest perplexing challenge: how to handle detainees who are insisting on representing themselves, and keep them from turning the military commissions upside down. In a series of hearings for the defendants — including Khalid Shaikh Mohammed, the admitted chief plotter of the Sept. 11 attacks — the tribunal struggled to sort through fresh questions about how men under strict detention rules can work on their cases, how secret evidence will be handled and how much leeway they will be permitted.

At times the hearings devolved into the kind of paradoxical debate that has become common as the troubled tribunal system has struggled to deal with lesser-known suspects. This case, however, involves men charged in the biggest terrorist attack in American history, and who have trumpeted their roles in the jihad.

“Any attack I undertook against America,” Mr. bin Attash managed to say before the judge stopped him, “I am proud of it, and I am happy about it.”

Mr. bin Attash, known as Khallad in Al Qaeda, began his hearing by stopping things cold with the explanation that he could not respond to a court filing because it had just been handed to him.

“I was handcuffed, and I didn’t read it,” he said, through a translator. The judge called a recess.

On Wednesday, it had been the turn of two of his co-defendants to present puzzles about how to proceed. The detainee known best by his alias, Ammar al-Baluchi, a nephew of Mr. Mohammed, explained that he was already handling his own case, as the judge had authorized.

But there were issues. Mr. Baluchi had written the judge two letters and a legal motion, he said. But his Guantánamo jailers had refused to transmit them.

“Unfortunately, I couldn’t deliver this letter,” Mr. Baluchi said, holding a yellow sheet.

Lawyers for others held here have long said that detainees’ communications are blocked, censored or delayed. Asked about Mr. Baluchi’s claims, a Pentagon spokesman, Cmdr. Jeffrey D. Gordon, said officials had put in place a process to assure that detainees’ communications to the court were “handled appropriately and efficiently.”

Judge Kohlmann, who once wrote an academic paper concluding that “even a good military tribunal is a bad idea,” seemed perplexed. “I don’t understand why they didn’t get this to me,” he said to Mr. Baluchi.

All but one of the detainees charged in the Sept. 11 case are insisting on representing themselves. The fifth, Mustafa Ahmad al Hawsawi, wavers.

But Mr. Hawsawi provided an explanation. At the defense table with him were American lawyers, including two in military uniforms. “How do you expect me to trust them?” he asked.

The defendants appear to have varying goals: to challenge Guantánamo as unjust, to invite martyrdom, to convey some message to the outside world.

But the pretrial work this week was more basic. Prosecutors were struggling to define the rules, saying that each of the men would see all classified evidence that is to be used in court.

But they made it clear that there would be limits. The vast classified files that might usually be turned over to the defense, are not to be open to detainees charged with an audacious act of terrorism, the prosecutors said.

Col. Lawrence J. Morris, the chief prosecutor, said his lawyers were working to get the detainees what they need to handle their cases. But Colonel Morris argued that questions about nitty-gritty items like typewriters for detainees should not be seen as a setback.

“Sure it complicates the prosecution’s management of the case,” he said, “but not every complication is a problem.”

But when it came his turn on Thursday, Mr. Mohammed, known as K.S.M., dwelled on the challenges. He said he had asked the guards for paper so that he could begin to draw up legal motions. The answer, he told the judge, was that paper was not authorized.

Judge Kohlmann seemed to acknowledge the challenge of writing a motion without paper. Nevertheless, he told Mr. Mohammed, even such a small thing as a request for a pad of paper had to follow procedure.

“There’s going to have to be a motion,” the judge said, “in accordance with our rules.”

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