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And I'm Steve Inskeep. Hearings resume today at Guantanamo Bay, Cuba. The case involves Khalid Sheikh Mohammed and four other men accused of planning the 9-11 attacks. What is really on trial this week, though, is the court system created to try terrorists at Guantanamo. So, while the prosecution would like to focus on the attacks on the World Trade Center and the Pentagon. The defense is busy changing the subject. NPR's Dina Temple-Raston reports.
DINA TEMPLE-RASTON, BYLINE: The big issue in the 9-11 hearings earlier this month: white noise. First some background: the military commissions at Guantanamo need to keep classified information from getting out. So, the audio feed from the courtroom is on a 40-second delay. When something classified is said, a censor who sits next to the judge pushes a button, and that sends white noise to listeners outside the courtroom. But during the last session...
WELLS BENNETT: The courtroom's audio and video feeds were cut off, not by the judge, not by the prosecution, but by some third party.
TEMPLE-RASTON: That's Wells Bennett, a visiting fellow at the Brookings Institution. He's tracking the military commissions. No one seemed to know that there even was a third party. Possibly the CIA listening to the proceedings and even censoring them. And that gave the defense a fresh opportunity to say the commissions aren't fair.
BENNETT: Someone listening in at the same time that they presumably had access to a button that could stop people from talking, that adds another level of concern for the defense and plays directly into their challenge to the legitimacy of the trial.
TEMPLE-RASTON: So, that's where today's hearings are expected to start, with the question of who is secretly monitoring the trial. The defense is worried this unseen monitor is listening in on private attorney-client conversations. In fact, lawyers for Khalid Sheikh Mohammed - he's the so called mastermind of the 9-11 plot - have already filed a motion asking the judge to stop the hearings until the white noise controversy is settled.
KAREN GREENBERG: There are a whole bunch of problems with Guantanamo and that is a fact.
TEMPLE-RASTON: Karen Greenberg runs the Center on National Security at Fordham Law School.
GREENBERG: And the question is can they get around these issues in such a way to try these cases, bring them to a conclusion in a way that you can say we had a legitimate courtroom proceeding that has democratic standards attached to it. It's extremely difficult.
TEMPLE-RASTON: The secret monitoring of the proceedings is just one problem. Ben Wittes writes the Lawfare blog, which analyzes the legal issues at play in the military commissions. And he says the commissions have been bogged down because lawyers aren't just litigating this case, as you'd expect in federal court, but are arguing about the tribunal itself.
BEN WITTES: Unlike a federal court proceeding where you have many, many years and decades of trial practice and precedent that guide the answer to micro-questions, in the military commission system you don't have that reservoir of experience.
TEMPLE-RASTON: Neither the judge nor the lawyers can say: this is the way we've always done it. So, they have to discuss everything. For example, the defense motions on the docket this week include several attempts to get all the charges dismissed. The defense says the charges weren't filed properly, that the retired admiral who oversee the commissions wasn't constitutionally appointed. Those kinds of issues were settled through federal court long ago. Not at Guantanamo. Which explains why at this early stage, the prosecution is hardly getting a word in edgewise. Again, Wells Bennett.
BENNETT: As you draw closer to a trial you talk more about factual issues, a lot more about who did what.
TEMPLE-RASTON: There are 17 motions scheduled for argument this week, and nearly all of them are from the defense, and nearly all of them are focused on the way the commissions are set up. Dina Temple-Raston, NPR News.
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