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08/23/2013

The trials of the century's trial

GTMO-window
One of Guantanamo's courthouses as seen through a broken window at "Camp Justice" on Aug. 23, 2013. MICHELLE SHEPHARD/TORONTO STAR

 

Perhaps a better name for Guantanamo's so-called "trial of the century," as one lawyer suggested to me this week, is the "trial that takes a century."

This week of hearings wrapped up Friday with very little resolved. Pre-trial hearings often take months, if not years, but what makes Guantanamo's hearings especially onerous is the fact that the law is new, and the logistics are hard.

"The U.S. government has created an entirely new system to prosecute these men," said Army Maj. Jason Wright, who represents accused 9/11 mastermind Khalid Sheikh Mohammed. "We have 200 years of common law jurisprudence in the United States where we have worked out every common, every word ... we've got case law we can go to."

But the Military Commissions Act, under which Mohammed and four others are being prosecuted for war crimes, was introduced under the Bush administration in response to the 9/11 attacks. It has been amended twice since and the legal challenges posed by the defence are massive - heightened by the fact that this is a capital case. Is this court constitutional? Is terrorism a war crime? How to handle classified evidence and disclosure?

But before any of those weighty issues are fully challenged there are some basic issues that need sorting - such as the Pentagon's computer system, which is reportedly not secure for confidential filings, and emails are "disappearing into the ether." This means defence lawyers must write out motions by hand, or, as Wright has done this week, drive the golf cart he's given to get around the island, up to the Starbucks to use the WiFi and send legal documents from his personal laptop, using his personal email account. 

The chief of staff for the Pentagon official overseeing the military commissions called the technological problem a "hot mess," Wright told the court.

Military judge Army Col. Judge Pohl warned at the end of Friday that he would suspend the hearings until the problem is fixed - which would reportedly take until January - if defence lawyers were not given "adequate resources." 

That decision will be made next month, maybe.

Michelle Shephard is the Star's National Security correspondent and author of "Decade of Fear: Reporting from Terrorism's Grey Zone." She is a three-time recipient of Canada's National Newspaper Award. Follow her on Twitter @shephardm

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