"Instead of a presumption of innocence and of a public trial, we start with a presumption of guilt and of a secret trial”

from the nyt via raw story...

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.

[...]

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.

[...]

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.”

[...]

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.”

i beg to differ... the system is NOT "designed to be open..." it may be easy to say those words, but the facts don't support them...

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.

mr. khadr's defense attorney sums it up...

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.”

the "justice" system of the united states of america, circa late 2007...

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