9/11 terror suspect Khalid Sheikh Mohammed after capture

Five individuals suspected of being involved in plotting the September 11th attacks are due for arraignment on May 5. They are to be formally charged with “terrorism-related crimes that could bring the death penalty if the defendants are convicted.” And, as the American Civil Liberties Union (ACLU) reports, the government under the Obama administration is moving to censor any testimony from the individuals on torture or inhumane treatment they experienced while detained in CIA “secret” prisons.

A motion [PDF] challenging the possible censoring of testimony alleges the government has proposed a “protective order that would permit the government to suppress defendants’ statements about their detention and treatment, including torture and other abuse, in US custody.” The ACLU requests this proposed protective order be denied so the public can be granted “meaningful access” to proceedings against Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam Al-Hawsawi, as required by the Constitution and the Military Commissions Act.”

According to the motion, the government plans:

(1) to prevent the public, press, and trial observers from hearing the defendants’ statements concerning their personal knowledge of their detention and treatment in U.S. custody; and (2) for a 40-second delay in the audio feed of the commission proceedings to the public, press and trial observers.

The ACLU urges the military commission to “reject and not become complicit with the government’s improper proposals to suppress the defendants’ personal accounts of government misconduct.” The group adds, “If the Commission grants the government’s request for a 40-second audio delay, the military commission should “order the public release of unredacted transcripts containing the defendants’ statements on an expedited basis to minimize the infringement on the public’s right of contemporaneous access to the proceedings.”

The motion explains the press and public have an interest in “(1) ensuring that proper procedures are being followed; (2) discouraging biased decisions; (3) providing an outlet for community hostility and emotion; (4) ensuring public confidence in a trial’s results through the appearance of fairness; and (5) inspiring confidence in government through public education regarding the methods followed and remedies granted by government.” It states, “Our nation’s courts recognize that the truth, no matter how ugly, is better aired than concealed, and that the legitimacy of adjudicatory tribunals is undermined by secrecy.”

Most importantly, the ACLU finds “there is no legitimate basis” for categorically suppressing defendants’ statements on abuse and mistreatment. The government “will invoke Executive Order No. 13,526, or its predecessor Orders, for its classification authority.” It contains “four prerequisites” that must be satisfied to classify information: “(1)information must be classified by an ‘original classification authority’; (2) the information must be “owned by” or “under the control of” the government; (3) the information must fall within one of the authorized withholding categories under this order; and (4) the original classification authority must ‘determine that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security” and must be “able to identify or describe the damage.”

Arguments by the government that 9/11 suspects’ statements must be classified fail because:

(1) the government has no authority to classify information within the defendants’ personal knowledge and experience, and which they acquired by virtue of having it involuntarily imposed on them by the government; (2) the President of the United States has banned the “enhanced interrogation techniques” to which defendants were subjected, and ordered permanently closed the CIA sites at which they were held; and (3) the information the government seeks to suppress has been declassified already and is publicly available. Moreover,because “enhanced interrogation techniques” are banned, the CIA sites closed, and information about the US government’s detention and mistreatment of the defendants public, defendants’ statements on these issues would not harm the national security. The government’s classification claims are therefore not legitimate and do not override the public’s right to hear defendants’ statements.

That the government would try to suppress torture testimony is not surprising. Last month, the government tried to prevent prevent press from hearing testimony from accused USS Cole bomber Abd al Rahim al Nashiri on torture he experienced while in CIA custody. A number of news organizations objected to the government’s decision to keep details on Nashiri’s torture secret.

Nashiri was to share details so that his lawyer could argue Nashiri should not be “shackled to the floor” when meeting with him because it would remind him of the “trauma that he suffered in CIA custody.” A First Amendment lawyer named David Schulz was given an opportunity to argue that the press should not be kept from reporting on military commission proceedings. Rather than take the chance that the military judge would grant access to the press, the government decided to grant Nashiri to the right to meet with his lawyer in a locked room unshackled.

Faced with objections from the media, the government complied with the defense’s effort to win the right to interview or speak to Al-Nashiri without detention center guards shackling him to the floor because it was better than risking the possibility of more attention being brought to CIA torture.

On Sunday, former head of the CIA’s Counterterrorism Center Jose Rodriguez appeared on “60 Minutes” on CBS. Rodriguez appeared on television to promote his new book Hard Measures, which details how he came to be in charge of CIA torture against terror suspects at “black site” prisons, why he believes torture was effective and why it should not be vilified. Americans were introduced to a sociopath, one whom the Obama Justice Department decided not to prosecute for torture.

Throughout the interview, Rodriguez sadistically described “enhanced interrogation techniques” or torture. When Lesley Stahl said to him, “This is Orwellian stuff. The United States doesn’t do that?” he responded, “Well, we do.” He defended the waterboarding of Mohammed 183 times saying, “I don’t know what kind of man it takes to cut the throat of someone in front of a camera like that, but I can tell you this is probably someone who didn’t give a rat’s ass about having water poured on his face.” And, he perversely defended the destruction of CIA interrogation tapes, which he ordered.

No CIA officials have been held accountable or responsible for the torture they carried out against terror suspects. The Obama Justice Department did some charade to make the public think it was investigating torture and then announced June of 2011 that a broader probe into CIA torture would be dropped:

The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances…They deserve our respect and gratitude for the work they do.

The “difficult and dangerous circumstances” included orders to carry out war crimes, such as waterboarding. But, none of the officials that authorized torture or manufactured the legal justification for torture that gave the Bush administration cover to treat prisoners inhumanely have been put on trial. Effectively, torture was decriminalized.

The push for secrecy in the military commissions is just another action by the Obama administration to shield people responsible for torture from scrutiny. These are supposed to be reformed military commissions that are more open but, at this rate, such a distinction seems to be just a part of calming those concerned that the commissions would not be fair or impartial.

Prisoners were quite clearly subjected to brutality when President George W. Bush was in office. The Obama Justice Department has made it nearly impossible for victims to sue officials for compensation. Now, emboldened by the fact that the 9/11 suspects are being charged in a second-class justice system, the Obama administration has yet again bogusly invoked national security to prevent transparency.