Why Is the Military Commission Releasing 9/11 Prisoners’ Statements?

You’ve probably heard by now that the five alleged plotters of the 9/11 terrorist attacks have not only admitted to the deed once again, but cackled and boasted about it. As soon as the U.S. military commission approved for release their statement, titled “The Islamic Response to the Government’s Nine Accusations,” it was featured in newspapers, on TV and online all over the world.

But wait, weren’t those military commissions proceedings supposed to be stopped, pursuant to President Obama’s executive order? So why were the five men allowed to even file a statement in the case, let alone have it released to media around the world, particularly when many other legal filings have been kept under seal? What’s more, the commission hasn’t even determined the competency of two of the men, and their lawyers didn’t know about or approve the filing or its release.

Those are some of the questions being asked by the American Civil Liberties Union, which has helped many of the Guantanamo detainees get legal counsel.

Judge Stephen Henley has “blatantly defied President Obama’s executive order for an end to the military commissions,” said Anthony Romero, executive director of the ACLU in a statement released today. “Why Judge Henley accepted pleadings and issued an order in halted proceedings is confounding. The judge’s actions extending the military commissions call into question the true intentions of the Pentagon leadership at a time when the Obama administration is searching for a solution to the disastrous detention policies of the Bush administration. If Defense Secretary [Robert] Gates allowed the military commissions to proceed, that’s a serious problem; if he didn’t know about this, that’s equally troubling.”

Reached this afternoon at the Pentagon, spokesman Jeffrey Gordon insisted that Henley did not defy the president’s executive order, which was just to suspend the proceedings for 120 days.

“The judges are authorized to post any pleadings or filings on defenselink.gov,” said Gordon. “The executive orders basically stated that no new trial charges will be filed against detainees nor will there be any court proceedings at Guantanamo. No new charges have been filed. No new court sessions have taken place. We are in compliance with the president’s executive orders.”

Gordon added that this was hardly the first time that the 9/11 defendants have made such inflammatory statements, though those released yesterday, in which they claimed the attack was justified and call themselves “terrorists to the bone”, were certainly the most detailed.

Even if, as Gordon claims, the release was allowed by the military commission rules and not forbidden by the president’s executive order, it does suggest that Gates, who was originally appointed in 2006 by President George W. Bush, may be a bit out of step with the stated intentions of his new boss.

As the ACLU charged: “to selectively release a filing that clearly serves the objectives of the prosecution when defense motions have regularly been suppressed raises the suspicion that political motivations are at play.”

Update: The Washington Post reported the day after this post that Michael Berrigan, deputy chief defense counsel in the Office of Military Commissions, was equally bothered by the military commission’s decision to immediately release the detainees statement and confession, while defense lawyers have been waiting months for their documents to be publicly released.

“Look up the definition of ‘proceeding’ in Black’s Law,” he told the Post, referring to the standard legal dictionary, and to President Obama’s order. “Hopefully, Obama’s people will see what’s going on.”

Some defense lawyers and civil liberties advocates worry that what’s going on is a deliberate attempt by some officials at the Pentagon to undermine President Obama’s ability to close down the military commissions once and for all.