I have attended a number of court proceedings recently--in civilian criminal court, a court-martial, and a military commission--where, frankly, I didn't know what the f*ck was going on, even as to my own client. Today, the Washington Post reports that the audio and video feeds at the Guantanamo trial of Khalid Sheikh Mohammed (KSM) mysteriously went out as the defense was presenting a motion.
This is not the only court proceeding shrouded in secrecy I've attended in the past two weeks. Trials are supposed to be public. Secret trials are a relic of the Star Chamber.
In the Bradley Manning court-martial, journalists and observers are largely in the dark about what's going on because so much of it takes place behind closed doors, and there are no transcripts of the part of the proceedings that are public. In September, more than 30 news outlets and media organizations filed an amicus in support of a request by the Center for Constitutional Rights to provide public access to motions, briefs, written rulings, and the docket.
Last Friday, in the sentencing of my client--CIA whistleblower John Kiriakou--he was sentenced based on a secret statement by the supposedly-undercover officer (widely-known to the Thomas Donahue Fletcher) whose name he confirmed to a reporter. I wrote abut the Kafkaesque nature of going to jail based on secret evidence, resurrected dropped charges, and new allegations never made until sentencing, here.
Then yesterday, during the Guantanamo military commission proceedings of alleged 9/11 mastermind KSM, the audio feed was suddenly smothered in white noise and the video feed of the courtroom was cut as the defense began discussing a delassified pre-trial motion.
Who controls what the public and reporters can see and hear at the military commissions at Guantanamo Bay, Cuba? Is there an invisible hand, unknown to even the military judge, that can switch off audio and video feeds?
David Nevin, the civilian defense attorney, was perplexed. So was Judge James Pohl, an Army colonel, also had no idea why Nevin was censored or by whom.
The culprit? The prosecution.
Joanna Baltes, a Justice Department lawyer working on the prosecution team, said she could explain what happened--but not in public.
The Sixth Amendment to the U.S. Constitution provides that "the accused shall enjoy the right to a speedy and public trial." We apparently are no longer using that documents, but you cannot know the reason why.