This week I’ve been at the Naval Base at Guantánamo Bay Cuba observing the first military commission proceedings since the ten-year anniversary of the opening of the Guantánamo prison. The proceedings concern the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri) — first taken into U.S. custody in November 2002 — who faces a possible death sentence for his alleged involvement in the bombing of the USS Cole over eleven years ago. Over the course of two full days of proceedings the military commission judge struggled with several motions that squarely implicate fundamental due process and fairness concerns, particularly crucial in a criminal trial where the defendant’s life is at stake. Yet few of these critical issues were resolved or even clarified this week as the commissions system continues to be bogged down by novel rules and a near complete lack of any instructive precedent.

Extensive and time-consuming consideration of pre-trial motions is common in any complex death penalty case. What is exceptional about the al-Nashiri case is that most of the concerns raised by participants would never be at issue in a trial before any federal court, or even state court, where the rules are more fully developed and substantial precedent exists. Moreover, the atypical procedural obstacles that have arisen in the al-Nashiri case stem in large part from the omission of protections long recognized as essential by ordinary courts.

For instance, federal courts and all state courts have long acknowledged the particular importance of sufficiently resourcing the defense in capital cases, a right widely recognized as requiring that the defense be allowed to ask the court for resources without showing the request to the prosecution. That is because if the defense were to include the prosecution in such requests it would risk revealing its trial strategy and giving the prosecution an unfair advantage. In the military commissions, on the other hand, the refusal to grant defense resources in death penalty cases has been such a serious problem that in 2009 Congress passed legislation making clear that the commissions were to provide defense counsel in capital cases with resources comparable to those granted in federal courts.

Yet last month the Military Commissions Convening Authority, the body in charge of granting defense resources, inexplicably rejected a joint request from both the defense and the prosecution for the defense to be able to request resources from the Authority without sharing the request with the prosecution. On Tuesday, the defense challenged the Authority’s rejection before Judge James Pohl, who seemed uncertain about whether he had the authority to overrule the Convening Authority’s decision.

Ultimately, Judge Pohl attempted to side-step the issue by asking defense counsel to provide only minimal descriptions of the resource request and related justification to the Authority and the Prosecution and to come back to the judge if and when those minimally described requests were denied. Given that there was nothing in the Authority’s lengthy and unequivocal rejection to suggest that it would accept a minimal description, it appears most likely that the commission participants will re-litigate the issue several times, leading to further delays.

Another issue that would never come up in federal courts is the question of whether the government can examine the content of attorney-client mail. In federal court, the government would never be permitted to do so, as it would clearly violate the attorney-client privilege and provide the prosecution an unfair and significant advantage over the defense.

Such practices were also rejected at Guantánamo until this past fall, when the Commander responsible for the prison began ordering closer reviews of attorney-client mail in military commission cases. A recent order requires that all attorney-client mail for detainees involved in the military commissions be reviewed by a team of government contractors for both physical and “information” contraband. The top military commissions defense lawyer saw this order as being such a threat to the attorney-client privilege that he told the attorneys under his command that they were ethnically obligated not to comply.

In the al-Nashiri case, after several hours of oral argument and witness testimony over two days, Judge Pohl was still unable to resolve the issue. Instead, he ordered the defense and prosecution to provide additional information and the issue will be addressed–for third time in the al-Nashiri case — at the next hearing in April.

A final issue that was raised and remains unresolved implicates the torturing of al-Nashiri while he spent four years in secret CIA custody. On Tuesday, defense counsel began to argue why his client should not be shackled while meeting with defense counsel because of the residual impact of his having been tortured while in shackles. (Publicly available information indicates that interrogators held a gun and power drill to al-Nashiri’s head during interrogations.) The answer to the underlying question of al-Nashiri’s shackling during defense counsel meetings was postponed to give the defense the opportunity to more fully explain the relevance of al-Nashiri’s mistreatment, an explanation that will most likely occur in a session closed to the public thus providing confirmation that the consistent true aim of the military commissions is to keep the secrets of American torturers. Again, no one in a federal or state capital trial would bother to question the “relevance” of a defendant’s torture to his capital defense. Particularly not when the torture was at the hands of the same government that seeks his death.

In sum, after two lengthy days of arguments, the al-Nashiri case seems hardly closer to coming to trial. Defense counsel suggested that the al-Nashiri trial wouldn’t even begin until 2015 in commissions it described as a “facsimile of a court.” In a press conference following the proceedings’ conclusion, family members of the victims of the Cole bombing also commented on the delays, one man saying he expected he might see justice by the time he was an old man. What wasn’t discussed at the press conference was how many of delays and procedural quagmires that have delayed justice for al-Nashiri and the Cole bombing victims alike could have been avoided had the case been brought in the established federal forum where it properly belonged.

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The military commission hearing in the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri) beginning today will once again put on the world stage two of the worst U.S. ideas: Guantánamo and the death penalty.

The hearing takes place in Guantánamo — bad idea number one — where al-Nashiri has been detained for years, following his secret imprisonment and torture. As our European allies in countries including Poland, the U.K. and Spain are forced to deal with their complicity in the shameful U.S. program of torture and secret prisons and as our enemies continue to use the detention camps as a recruiting tool, the reasons to close Guantánamo, not start new trials there, are mounting.

Al-Nashiri’s hearing is in a capital case, the second really bad idea we cling to in this country. We still have the death penalty, although we are in the minority, and we share the distinction of “most executions” with human rights outlaws: China, Iran, North Korea and Yemen.

The fact that the hearing is in the military commissions (we’re going to stop counting bad ideas now) — will force Rick Kammen, longtime capital defender and al-Nashiri’s “learned counsel,” to make an argument he hasn’t needed in a long time, maybe a couple of decades. At issue is an indigent defendant’s right to receive funding for the investigation and the experts needed to defend against capital charges and the death sentence, and to ask for that funding outside the interested ears of the prosecution. (In legal Latin, such hearings are called “ex parte,” and they are as routine as the sound of ceiling fans in such bastions of “enlightened” capital practice as the courts of Mississippi and Louisiana.)

Should a puzzled reporter or observer lean over to a lawyer today in Guantánamo and ask what would this hearing look like in federal court, the answer is that there would never be such a hearing in a federal court. The right for defense funding of experts and investigators, and the right to ask for that funding privately — without having to reveal defense strategy or the progress of the investigation — has been established in federal courts for decades. It is universally recognized in federal capital trials that an indigent defendant gets to go before the court and say what he or she needs for a fair trial — without having the other side listen in.

What is even more surprising is that everyone seemed to recognize this state of play when the need for confidential hearings was raised. The judge indicated that the parties should ask the Convening Authority of the military commissions, and they did so together. It is worth noting that the motion to have “ex parte” communications about funding for experts and investigation was a joint motion of the defense and the prosecution. Despite this fact, it was denied by the Convening Authority. Al-Nashiri’s hearing beginning today at Guantánamo may decide what the military judge will do now.

Before giving the prosecution too much credit, though, we should point out that the “sauce for the goose, sauce for the gander” argument doesn’t really apply here. The defense has only one source of funding for its investigation and experts: the military. The prosecution isn’t limited that way. If they want something — say a couple dozen lawyers and investigators to pursue evidence in Yemen, or Saudi Arabia — and the military turns them down, they will get all they need from the endless supply of Department of Justice lawyers and CIA and FBI investigators.

And that brings us to the second big issue for the hearings this week in al-Nashiri’s case: the proposed “security” measures that the defense team, the American Bar Association, and others have said violate the attorney client privilege. There, the issue is an old one that will persist as long as these Guantánamo trials do; the vexing problem for the government of keeping secret the identities of the torturers and the details of the torture while trying to make the trial of a tortured man look fair.

The “new” military commission has a new motto: “Fairness, Transparency, Justice.” But this week is all about a system that cannot seem to provide basic rights to a defendant. Stay tuned from more news from Gitmo later this week.

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In an email sent Sunday and obtained by the ACLU, Marine Col. J.P. Colwell, the chief military defense counsel for the commissions, informed all military commission defense lawyers that they were ethically obligated to refuse to follow the rules, which were issued last month.

Guantánamo’s commander, Navy Rear Adm. David Woods, issued the rules on monitoring legal communications on December 27. Under these rules, any information provided by lawyers that military censors found objectionable — like communications about U.S. personnel who tortured the prisoners — could be kept from the prisoner and brought to the attention of the base commander. This would eliminate attorney-client confidentiality.

The new prison rules say that defense attorneys must agree in writing to the monitoring as a condition of communication with their clients. In his email, Colwell told military commission defense lawyers that they should not sign the monitoring agreement, and if they already had signed, then they should immediately withdraw from the agreement. Citing the ethics codes that govern every branch of the military, Colwell wrote that following the agreement and revealing such information would be “in violation” of rules for professional conduct.

Col. Colwell joins an honorable line of Guantánamo military lawyers who have opposed superiors’ attempts — ostensibly in the name of security — to undermine longstanding rules necessary for a fair trial. In seeking to force military defense counsel to cast aside their professional ethical obligations of client confidentiality, the new rules fly in the face of American justice and tradition.

If we want to do justice — and be seen as doing it — these cases need to be in federal court where the rules are established, fair, and effective.

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Today marks 10 years since the first prisoners were sent to Guantánamo, making it the longest-standing war prison in U.S. history. Almost 800 men have passed through Guantánamo’s cells. To learn more about the ACLU’s call to close Guantánamo, visit www.aclu.org/closegitmo.

In 2001, Lakhdar Boumediene was falsely accused of being an al Qaeda operative while working for a humanitarian aid organization in Bosnia. Even though Bosnia’s highest court found no evidence against him, the U.S. government kidnapped Mr. Boumediene and sent him to Guantánamo, where he remained for 7 ½ years without charge or trial.

In a 2008 landmark Supreme Court decision that bears Mr. Boumediene’s name, the Court ruled that the constitutional right of habeas corpus applied to the men imprisoned at Guantánamo.

The Court ordered the government to give Mr. Boumediene and his fellow prisoners a meaningful opportunity in a civilian court to challenge their confinement. Five months later, a United States District Court in Washington heard the supposed evidence against Mr. Boumediene, found it utterly lacking and ordered him set free. In May 2009, Mr. Boumediene was released from Guantánamo and today, he lives in France with his wife and three children.

In the latest episode of ACLU Studio, ACLU National Security Project Senior Staff Attorney Zachary Katznelson talks with Mr. Boumediene about his experiences at Guantanamo and his reflections on the 10-year mark since the first prisoners were taken there.

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To learn how you can amplify the call to close Guantánamo, once and for all, check out our new activist toolkit.

And in case you missed them, be sure to check out the “Gitmo by the Numbers” Infographic that we blogged about yesterday, and our blog post about Lakhdar Boumediene, an innocent man who was imprisoned at Guantánamo for seven and a half years without charge or trial. Tomorrow, we’ll feature a podcast conversation with Mr. Boumediene.

And be sure to let President Obama know that you’re counting on him to make good on his original promise to close Guantánamo and to shut down the un-American and illegal policies that it embodies.

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