GUANTANAMO BAY NAVY BASE, Cuba — In a bizarre new episode in the Sept. 11 trial, defense lawyers wrote a legal brief based on documents from the prosecution that are so far so secret the judge can’t see them.
Death penalty defender Jay Connell described the ongoing problem Monday at the opening of a weeklong pretrial hearing in the case against five men accused of conspiring in the Sept. 11, 2001, hijackings that killed nearly 3,000 people in New York, at the Pentagon and in a Pennsylvania field.
He said that he had sought starting June 7 to file a Top Secret legal pleading and 10 accompanying notices, supported by 5,000 pages of documents. But the court’s security officer would not take them because they had unfamiliar classification markings.
In them, based on court discussion, Connell appeared to be asking the judge to call certain experts and government witnesses on the question of when the war on terror began. Also, he appears to be seeking experts to testify on the reliability of post-torture interrogations in a bid to disqualify any confessions his client, Ammar al Baluchi, made to FBI agents soon after he got to Guantánamo in 2006.
Connell was puzzled. If he, presumably had clearance to see the material, how could the judge not?
“As I understood the problem,” Connell said, “there’s the possibility that some of these compartments … have been disestablished and the reason that the trial judiciary asked me to get the classification review was to find out, do these compartments still exist. If so, what is their current name so that they can seek a read-on for you or for me or for whoever.”