Chapter4 Access to Justice | 101 protocol, restrictions on the locations within the facility where certain detainees could meet with counsel, and the new vans that guards used to transport detainees to meetings with counsel (detainees had to sit in stress positions while traveling to their meetings with their attorneys). 292 The decision was appealed by the U.S. Government. 245. Further, according to publicly available information, in April 2014 Guantanamo defense lawyers in the case of the five alleged masterminds of the September 11 attacks told a military commission that the FBI was spying on their colleagues. The FBI investigation reportedly involved the attempt to turn the security officer of Ramzi Bin Al Shibh’s legal team into an FBI informant. The U.S. Government has refused to respond to the request of the defense team to turn over information about who and what the FBI was investigating. According to the Department of Justice, the secret FBI investigation has been closed and referred to the Department of Defense. David Nevins, lead counsel for Khalid Sheikh Mohammed, said the fear of prosecution by the FBI for defense-related activities inhibits them in their ethical obligation to zealously represent the interests of their clients. 293 The litigation on the potential conflicts of interest has further delayed the pre-trial proceedings, adding to the already ongoing delays, a matter that will be addressed in the following chapter. 246. The IACHR has also received troubling information regarding restrictions on access to evidence and unreasonable classification rules. 294 According to standards developed by the U.S. Supreme Court, as a matter of general practices prosecutors must disclose all “material” evidence that is favorable, which is broader in scope than exculpatory evidence. 295 In this regard, the Supreme Court has ruled that evidence is material and must be turned over, even without a request by the defense, if it “creates a reasonable doubt that did not otherwise exist.” 296 In contrast, the obligation to disclose exculpatory evidence in military commissions is limited “to any evidence that reasonably tends to […] negate the guilt of the accused.”297 In addition, under general practice, federal courts presume classified evidence is discoverable unless and until the government demonstrates otherwise. Under the 2009 MCA, however, the burden is on the defense to demonstrate the discoverability of evidence, even though they may not even know it exists. 298 Finally, military commission prosecutors can withhold evidence based on an 292 293 294 295 296 297 298 In re Guantanamo Bay Detainee Litigation, Misc. No. 12-398 (RCL), Order (July 11, 2013)(Dkt. No. 46). Available at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012mc0398-47. See also, Judge Strikes Restrictions on Guantanamo Detainees’ Access to Counsel, Constitutional Law Prof Blog. Available at: http://lawprofessors.typepad.com/conlaw/2013/07/judge-strikes-restrictions-on-guantanamo-detaineesaccess-to-counsel.html The Huffington Post, FBI Infiltration Of 9/11 Defense Continues to Delay Guantanamo Trial, August 14, 2014. Available at: http://www.huffingtonpost.com/daphne-eviatar/fbi-infiltration-of-911-d_b_5679432.html Written submission received during the IACHR’s Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay, Washington DC, October 3, 2013. Brady v. Maryland, 373 U.S. 83 (1963). U.S. v. Agurs, 427 U.S. 97, 112 (1976). MCA 2009, 10 U.S.C. § 949j(b)(1)(A). MCA 2009, 10 U.S.C. § 949p-4(a)(2). Inter-American Commission on Human Rights | IACHR