Donna Miles at the American Forces Press Service offers the below piece:
FORT MEADE, Md. - Pretrial hearings for two major court cases
– one involving the alleged perpetrators behind the 9/11 terror attacks and the
other involving the soldier charged with the largest intelligence leak in U.S.
history – are converging this week as attorneys operating in two very different
legal systems focus on the issue of classified information in the courtroom.
The pre-trial hearing for Khalid Sheik Mohammed (seen in the above photo), who has confessed to
planning the 9/11 attacks "from A to Z," and four others who allegedly trained,
financed or arranged transportation for the 19 hijackers entered its fourth day
today at Naval Air Station Guantanamo Bay, Cuba.
Mohammed's codefendants in the case are his nephew, Ali Abdul Aziz Ali; Walid
Muhammad Salih Mubarak bin Attash, charged with selecting and training some of
the hijackers; and Ramzi Binalshibh and Mustafa Ahmed Adam al Hawsawi, accused
with helping finance the attacks.
Meanwhile, here at Fort Meade, the second day of pre-trial hearings continued
for Army Pfc. Bradley Manning (seen in the above photo). He is an Army intelligence specialist accused of
downloading and transmitting classified information to the whistle-blowing group
WikiLeaks while he was deployed to Iraq.
The legal systems being used to prosecute these cases are significantly
different.
Manning, as a member of the U.S. military, is subject to the Uniformed Code
of Military Justice. This system has roots dating back to the Revolutionary War
to promote good order and discipline in the armed forces. The 9/11 defendants,
on the other hand, will be tried through a military tribunal governed by the
Military Commissions Act of 2009.
Manning is charged with aiding the enemy; wrongfully causing intelligence to
be published on the Internet, knowing that it is accessible to the enemy; theft
of public property or records; transmitting defense information; and fraud and
related activity in connection with computers. The charges against him also
include violation of Army Regulations 25-2 "Information Assurance" and 380-5
"Department of the Army Information Security Program."
If found guilty, Manning could receive up to life in prison. He also could be
reduced to E-1, the lowest enlisted grade, and face a total forfeiture of all
pay and allowances and dishonorable discharge.
Military commissions, on the other hand, apply to "an alien unprivileged
enemy belligerent who has engaged in hostilities, or who has purposefully and
materially supported hostilities against the United States, its coalition
partners or was a part of al Qaeda."
The 9/11 defendants were captured in Pakistan between 2002 and 2003 and have
been confined at Guantanamo Bay since 2006.
They were charged during their arraignment in May with terrorism, conspiracy,
attacking civilians, attacking civilian objects, intentionally causing serious
bodily injury, murder in violation of the law of war, destruction of property in
violation of the law of war, hijacking or hazarding a vessel or aircraft. If
found guilty, they could receive the death penalty.
A casual peek into the courtrooms gives a glimpse into one of the most
obvious differences between the UCMJ and military commission processes.
By law, Manning is not required to attend proceedings regarding his case, but
a military lawyer with more than 20 years experience said on background that
he's never seen a service member not attend. Photographers outside the courtroom
yesterday captured images of Manning being escorted from the courtroom in his
Army dress blue uniform with gold-colored private first class rank on his
sleeves.
Army Col. James Pohl, the judge presiding over the 9/11 case, ruled earlier
this week that the defendants don't have to attend their court sessions, as long
as they sign a waiver form each morning they choose to skip. When they do elect
to attend, they can dress as they choose – as long as their attire doesn't
include U.S. military uniform items or prisoner garb in a color that would
misrepresent their security status at the detention facility.
Mohammed quickly took advantage of both rulings. He opted out of court the
first day after Pohl ruled that he could – the day the judge also took up the
wardrobe issue. Yesterday, Mohammed initially elected not to attend the third
day of pre-trial hearings, then showed up later that morning wearing a
camouflage vest over his traditional white tunic.
Most of the distinctions between the UCMJ and military commission legal
processes are less obvious to those without legal training, and the discussion
could fill textbooks. One big question being debated during the 9/11 hearings,
for example, is whether the defendants have constitutional rights.
However, a central concern in both the Manning and 9/11 cases is the issue of
how classified information is dealt with in court.
Today, the fourth day of pretrial hearings for the 9/11 suspects continued to
focus on the balance between protecting classified information that, if made
public, could jeopardize U.S. national security, and the constitutional mandate
that court proceedings be open to the public.
The prosecution and U.S. government lawyers say protections are needed to
prosecute the case without disclosing classified information that would threaten
U.S. national security.
In contrast, the defendant's defense teams accused prosecutors of using an
overly broad banner of national security to safeguard information vital to
providing a solid defense. Echoing them were lawyers representing the American
Civil Liberties Union and media groups, who said the government wants to squelch
information the public deserves to know.
Pohl is expected to rule this week on a protective order the prosecution has
requested to spell out what provisions are protected and what aren't.
A central issue in both the 9/11 and Manning cases involves information
regarding the defendants' detention. For Manning, that involves time when he was
allegedly mistreated while being held in a Marine Corps brig at Quantico, Va. Of
primary concern regarding the 9/11 defendants is time they spent in the hands of
the CIA before being transferred to Guantanamo Bay.
Both cases also require hammering out details about witnesses who can be
called. In Manning's case, for example, some witnesses' names have been redacted
from the motion and are considered to be classified as secret. At Guantanamo
Bay, the issue involves whether the defense is required to give the prosecution
a heads up about what the witnesses it calls are likely to say –something the
government would weigh in deciding whether to fly a witness to the
courtroom.
Meanwhile, Army Col. Denise Lind, the judge hearing he Manning case, ordered
the prosecution yesterday to release hundreds of emails about his incarceration
to the defense team. Lind's ruling covered all but 12 of about 600 emails
covering a range of issues: from Manning's visitor list and provisions to ensure
he had proper uniforms to plans for responding to protesters and media queries.
These emails, added to ones already in the possession of Manning's defense
attorneys, bring to 1,200 the total number of emails that will presumably be
used to argue that their client was treated illegally.
Lind also issued rulings that would allow parts of CIA, FBI and Department of
Homeland Security documents used in the case to be redacted.
Ironically, the only concrete decision made during the 9/11 hearing today had
nothing to do with the court proceedings. Rather, it involved the cleanup of
administrative space the defense teams have complained are plagued with rat
droppings and mold. Although base officials had declared them safe, a defense
lawyer told Pohl the space is making her staff sick.
A Navy officer promised a comprehensive cleanup before the next series of
pre-trial hearings, assuring the court that occupational health experts will
verify that they they're up to standards.
