'Fair, Open, Just, Honest'

Defense lawyers for the five high-value detainees [accused of masterminding the attacks of 9/11] asked to postpone the arraignment but were turned down. What's the rush?
The judge made that determination. As a general matter, there is no rush on anything. [But] it's 2008. So there is no rush, but there is a sense of the importance of these cases in general, not just the 9/11 cases. They've been analyzed, reviewed, coordinated with the intelligence and law enforcement communities, the legal communities, and now various prosecutors are ready to swear charges, and once you swear charges you get into the process.

But as far as I understand, only one of the five detainees who is going to be arraigned Thursday has had a chance to see his attorney.
Dan, that will always be the case, won't it? It will always be the case. Because the prosecutor in every trial, the trial down the street, the trial in the military, the trial in this process—the prosecutor is the guy who's been studying the evidence, organizing it, collating it, gathering it, putting trial briefs together, putting charges together, swearing charges. There is no defense counsel. The accused doesn't even know he's got a case. And when that's done, the accused is charged, just like in our case. And when the charges are sworn, the accused gets a counsel. So the defense is always going to come later to the game than the prosecution does.

One of the issues that's come up is security clearances for the civilian attorneys, even for the military defense attorneys. When will that be resolved?
Glad to answer. They have 18 defense counsel on the 9/11 cases. Write these numbers down, because this is important. Ten military and eight civilian. Of the 10 military, eight have the appropriate level of security clearance. Of the civilians, of those eight, five have or will have by [May 30] the appropriate level of security clearance. Three are in the process of getting their security clearance. If you try to get the level of security they need in these cases, it usually takes a year to 18 months. Now, that wouldn't work, would it? So what we've done is we've streamlined that process to make sure the defense counsel and others in the process move very rapidly in getting their security clearance. So absent some unusual thing, that security clearance that began between the 12th and the 21st of May should be done by the end of June.

But from the perspective of the attorney, he's saying, "Even if I get the clearance before the arraignment, the first time I can see my client is a day or two days before. We have to talk about the plea he's going to enter; we have to talk about some defense strategy." And some of these attorneys won't get it until after the arraignment.
Well, the judge looked at all that. Tom Hartmann is not the judge. The judge is the judge. Judge [William] Kohlmann looked at all that. All those arguments were made in the motion, in the filing. The judge dealt with the very issues that you're bringing up, Dan, and he concluded that it was appropriate to proceed with the arraignment.

There's speculation that part of the strategy is to get the arraignment done before the Supreme Court issues its decision [on the legitimacy of the military commissions]. What do you say to that?
I know nothing about that.

Capt. Prescott Prince, the military attorney representing Khalid Sheikh Mohammed, one of the things he has been complaining about is that all his requests for discovery material have been denied. Why is that?
I don't know. I don't know anything about his requests for discovery material. But the prosecution has an obligation to produce certain things to him on their own, exculpatory information for example, and various kinds of information by the accused, material that is necessary for the defense. Those matters will either be produced—or the alternative, Dan, is to go to the judge and the judge will require production of the evidence. If the defense thinks it's not getting discovery, the place to go is not the media, the place to go is to the judge.