[Marxism] NYT: Witness Names to Be Withheld From Detainee

[Walter Lippmann]

(Remember: This is the system which Washington is ALREADY OPERATING in
the sliver of Cuba which it already controls. Washington's fantasy is
to impose its rule on the rest of the island. Talk is cheap. This isn't
what they say they might do if they could do so. This is what they are
actually doing right here, right now. How can you defend yourself when
the persecution prevents you from challenging and cross-examining the
"witnesses" which they say they have to use against you? Yes, you read
it correctly. I deliberately mis-spelled one word in this intro note.)

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"Instead of a presumption of innocence and of a public trial," Commander 
Kuebler said, "we start with a presumption of guilt and of a secret trial."
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THE NEW YORK TIMES
December 1, 2007
Witness Names to Be Withheld From Detainee
By WILLIAM GLABERSON

Defense lawyers preparing for the war crimes trial of a 21-year-old
Guantánamo detainee have been ordered by a military judge not to tell
their client - or anyone else - the identity of witnesses against
him, newly released documents show.

The case of the detainee, Omar Ahmed Khadr, is being closely watched
because it may be the first Guantánamo prosecution to go to trial,
perhaps as soon as May.

Defense lawyers say military prosecutors have sought similar orders
to keep the names of witnesses secret in other military commission
cases, which have been a centerpiece of the Bush administration's
policies for detainees at Guantánamo Bay, Cuba.

Some legal experts and defense lawyers said the judge's order, issued
on Oct. 15 without public disclosure, underscored the gap between
military commission procedures and traditional American rules that
the accused has a right to a public trial and to confront the
witnesses against him.

Defense lawyers say the order would hamper their ability to build an
adequate defense because they cannot ask their client or anyone else
about prosecution witnesses, making it difficult to test the veracity
of testimony.

The order, the documents show, followed a request by military
prosecutors who said they feared terrorist retaliation against
witnesses who appeared at Guantánamo proceedings.

"It is conceivable, if not likely, that Al Qaeda members or
sympathizers could attempt to target witnesses," a prosecutor, Maj.
Jeffrey D. Groharing of the Marines, wrote to the judge, Col. Peter
E. Brownback III of the Army.

The order says that three weeks before trial, prosecutors can abandon
the secrecy protections or ask the judge to extend them. Prosecutors
have also suggested that they may ask the judge to bar all
information identifying witnesses from the trial. "Providing the
witnesses' true identities will add nothing to their testimony," the
prosecutors wrote in a legal filing.

Mr. Khadr's military defense lawyer, Lt. Cmdr. William C. Kuebler of
the Navy, said that while he has been given a list of prosecution
witnesses, the judge's decision requires him to keep secrets from his
client and that he would ask Colonel Brownback to revoke the order.
He said it treated Mr. Khadr as if he had already been convicted and
deprived him of a trial at which the public could assess the evidence
against him.

"Instead of a presumption of innocence and of a public trial,"
Commander Kuebler said, "we start with a presumption of guilt and of
a secret trial."

Mr. Khadr, the only Canadian detainee at Guantánamo, is charged with
killing an American soldier, giving material support for terrorism
and other offenses. The documents released by the Pentagon, nearly
700 pages of previously unavailable records of arguments and rulings
in the Khadr case in recent months, reflect a battle under way over
how much information is to be revealed in public at the Guantánamo
trials.

Some parts of trials are expected to be conducted in closed
courtrooms for discussion of classified evidence, as permitted by
law. Military officials say some witnesses might testify in open
court behind a screen or, perhaps, in disguise.

The Bush administration's effort to bring detainees to trial has been
hampered for years by legal and logistical complications, but
prosecutors have said they hope to try eventually as many as 80 of
the 305 detainees at Guantánamo.

In an interview, Brig. Gen. Thomas W. Hartmann, a senior official in
the Pentagon's Office of Military Commissions, said that the
commission system was open to scrutiny from news organizations and
human rights groups and that the order was necessary to protect the
lives of witnesses.

"The system is designed to be open," General Hartmann said. "But
there are certain things that simply must be protected."

Most witnesses in Mr. Khadr's case are expected to be military
personnel who took part in a 2002 firefight in Afghanistan when an
American special forces soldier, Sgt. First Class Christopher James
Speer, 28, was fatally wounded. Mr. Khadr, who was 15 at the time,
was badly injured.

"It is so fundamental," General Hartmann said, "that we're in this
global war on terror. We need to protect our soldiers, sailors,
airmen and marines and there's nothing nefarious about it."

He said requiring prosecutors to identify which witnesses they want
to remain anonymous before the trial would assure that the military
judge will evaluate assertions about why individual witnesses may
need anonymity.

But Joshua L. Dratel, a lawyer in New York who represented another
detainee prosecuted for war crimes, described such orders as an
Orwellian effort to hamstring defense lawyers while making it appear
that detainees are rigorously represented.

"It is '1984,'" Mr. Dratel said. "No system in the United States
would operate this way."

Some legal experts said while the identities of witnesses were
shielded on rare occasions in American courts, an order applying to
all witnesses in a case would be exceptional.

Such an order "would be very, very unusual" in a civilian court, said
James A. Cohen, a Fordham University law professor, adding that he
knew of no blanket order protecting the identities of all witnesses
in a case.

Scott L. Silliman, a law professor and the director of the Center on
Law, Ethics and National Security at Duke University, said people who
had not heard the arguments could not fairly evaluate Judge
Brownback's order.

The military judge had the responsibility to protect witnesses while
assuring a fair hearing, Mr. Silliman said. He added that Judge
Brownback's order appeared to balance those considerations
appropriately.

But David D. Cole, a Georgetown University law professor who has been
a critic of the commissions, said shielding the identities of
witnesses "plays into the perception around the world that that
United States is not willing to give detainees a fair shake."

The materials released on Thursday, after numerous requests from news
organizations, include extensive legal arguments and judicial orders
on many central legal issues in Mr. Khadr's case.

Many of the arguments, the documents show, occurred in e-mail
exchanges between the lawyers and Judge Brownback. Only some of them
have been referred to in two brief public hearings on the case at
Guantánamo.

In an e-mail message on Oct. 9, Major Groharing, the prosecutor,
described Mr. Khadr as a "trained Al Qaeda operative" who is
"certainly capable of exacting revenge" on witnesses should he ever
be free.

The major also indicated that military prosecutors had difficulties
persuading people to testify at Guantánamo. "Potential witnesses have
previously expressed reservations with participation in the military
commission process because of fear of retaliation from Al Qaeda," he
wrote.

Commander Kuebler's e-mail messages were filled with assertions that
his client's rights were being violated and with arguments that Mr.
Khadr should be afforded the lenient treatment that has been accorded
child fighters in some other wars. He ridiculed "the absurdity of
characterizing an alleged former child soldier" as a dangerous
terrorist and said the prosecution was ignoring rules assuring that
detainees charged with war crimes are entitled to public trials.

In an e-mail message on Oct. 11 to the judge and the prosecutors,
Commander Kuebler argued that it was notable that the entire
discussion of whether witnesses would be permitted to shield their
identities was being conducted without anyone in the public or the
press able to observe the arguments.

"The manner in which this is being dealt with (i.e., off the record,
via e-mail)," he wrote, "creates an added level of difficulty by
making it appear that the government is trying to keep the secrecy of
the proceedings a secret itself."

Copyright 2007 The New York Times Company