GUANTANAMO BAY, Cuba — Still operating under Bush-era policies that President Barack Obama last year called "a mess," the Pentagon will resume military commission hearings for accused terrorists Wednesday in a top secret compound originally designed for the trial of alleged 9/11 mastermind Khalid Sheik Mohammed.
War court critics denounced the decision to go ahead with hearings this week, saying that without new rules that the Obama administration has yet to complete, the commissions are operating with uncertain procedures.
"It's really like a lame duck commission," bristled Mike Berrigan, deputy chief defense counsel.
First up on the war court's agenda is a pre-trial hearing in the case of Noor Uthman Mohammed, a Sudanese man who was captured in Pakistan in 2002 and brought here soon after for interrogation as a suspected al Qaida operative.
Attorney General Eric Holder approved Mohammed's military trial in November on charges of conspiracy and providing material support for terrorism for allegedly helping to run the Khalden terror training camp in Afghanistan.
At that same time, Holder approved civilian trials for the alleged plotters of the Sept. 11, 2001, terrorist attacks — and this week's hearings also are a reminder that the Justice Department remains undecided on how to proceed with the case of Khalid Sheik Mohammed and his four accused co-conspirators.
After New York officials objected to holding the 9/11 trial in lower Manhattan, the White House announced that it would reconsider the decision. It remains unclear where and in what forum Mohammed and the other alleged plotters will face charges.
That indecision will be on display as the court convenes Noor's case in the maximum security, $12 million Expeditionary Legal Complex that the Bush administration built for the accused 9/11 conspirators.
Court officials said Noor's judge, Navy Capt. Moira Modzelewski, instructed officers to hold the hearing in the special compound, which is equipped with a soundproof gallery and a white noise machine intended to protect state secrets.
Noor's case hadn't been considered classified previously, and his earlier hearings were held in a more traditional courtroom that allowed reporters and legal observers to watch the proceedings with no high-tech audio delay.
Military commission spokesman Joe DellaVedova noted that Noor would be present at all times in the courtroom and would be able to hear the evidence presented, even if a court censor presses the button that cuts off sound to the reporters viewing the trial from the separate gallery.
DellaVedova also defended restarting the military commissions despite the lack of a new manual of procedures. "We have experienced judges and attorneys who are familiar with commission rules, who know the 2009 Military Commissions Act and who know how to follow courtroom procedures," he said.
The Obama team had sought changes in the commissions under the Military Commissions Act of 2009 to make the trials fairer. The act gave captives more choice on who could defend them and excluded confessions obtained through torture or coercion by U.S. forces or their allies.
However, Berrigan said the decision to use the courtroom built for the alleged 9/11 plotters indicated that prosecutors may intend to present classified evidence, despite promises of more openness.
Among the questions the lack of a new manual of procedures leaves unanswered is whether a defendant could enter a guilty plea in a case where he might face the death penalty. Under military law, such a confession isn't allowed, a requirement that stymied earlier efforts to try the 9/11 conspirators after they offered to confess to a judge directly without empanelling a jury.
(Rosenberg reports for The Miami Herald.)
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