In response to protests, the rules were revised and the reporters reinstated, but other problems have continued to fester, including lack of timely access to trial filings and transcripts, and overclassification of evidence on flimsy national security grounds, which avoids disclosure and results in needless blanks in the official record.
A decade after 9/11, eight years after Mr. Mohammed’s capture, it is implausible that much evidence still exists that warrants withholding on real national security grounds. Previous secrecy designations need to be regularly re-examined in light of the passage of time.
No doubt the trial will raise a host of thorny issues, including expected questions regarding some defendants’ competency to stand trial or to represent themselves, and whether a military commission may accept a guilty plea without a trial in a death penalty case.
The language of existing military commission rules seem to foreclose that last possibility, but Attorney General Holder says it is “an open question.” Legislation has been introduced in Congress that would clarify the rules to allow a guilty plea to short-circuit a capital trial. That is exactly the wrong move, and in any case, it is too late in the day to be changing the rules.
There is great virtue in a public legal proceeding that lays out 9/11 in detail and serves as a reminder of its horror. It deserves precedence over any desire by the Pentagon to avoid a trial that might reveal embarrassing information about torture, or serve Khalid Shaik Mohammed’s stated desire to accelerate his delusional martyrdom.