A military judge has ruled that statements made by defendants on trial for their involvement in the September 11th attacks could be censored if they make statements about how they were tortured or abused.
Judge Col. James Pohl ruled the government had “submitted declarations…from representatives of the CIA, [Department of Defense], and FBI invoking the classified information privilege and explaining how disclosure of the classified information at issue would be detrimental to national security in that the information relates to the sources, methods, and activities by which the United States defends against international terrorism and terrorist organizations.” These explanations included how the government believed disclosure of methods of interrogation or torture would be harmful.
The judge further explained in his ruling:
…the Government requested the Commission to institutionalize a practice that has been in use for several years- the so called “40 second rule,” Because of the security constraints at the Expeditionary Legal Center courtroom (Courtroom 2) there is a 40 second delay between something said in the courtroom and when those viewing the trial in the gallery or at closed circuit television (CCTV) sites actually hear what was said, The ACLU and collective press, as well as the accused, object to this delay as an unwarranted closure of the court. The Commission is acutely aware of its twin responsibilities of insuring the transparency of the proceeding while at the same instance preserving the interests of national security. Commission finds the brief delay is the least intrusive and least disruptive method of meeting both responsibilities The delay permits the Commission to assess and remedy any negligent or intentional disclosure of classified information without unduly impacting on the ability of the public and press to fully see and understand what is transpiring… [emphasis added]
Director of the ACLU’s National Security Program, Hina Shamsi, reacted, “We’re profoundly disappointed by the military judge’s decision, which didn’t even address the serious First Amendment issues at stake here. The government wanted to ensure that the American public would never hear the defendants’ accounts of illegal CIA torture, rendition and detention, and the military judge has gone along with that shameful plan.”
Shamsi added, “For now, the most important terrorism trial of our time will be organized around judicially approved censorship of the defendants’ own thoughts, experiences and memories of CIA torture. The decision undermines the government’s claim that the military commission system is transparent and deals a grave blow to its legitimacy.”
Not only did the ACLU oppose censorship, but the Miami Herald, ABC, Inc., Associated Press, Bloomberg News, CBS Broadcasting, Inc., Fox News Network, The McClatchy Company, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company. Wall Street Journal, and the Washington Post all signed on to a response to a motion by the government to “deny public access to all records and proceedings involving any classified information.”
To add some context, during oral argument on October 16, Justice Department lawyer and deputy trial counsel for the prosecution, Joanna Baltes, stated in court that an executive order issued by President Barack Obama was in force that authorized classification of “orally conveyed information that falls within the subsection of foreign or intelligence sources and methods.” Baltes was alluding to observations and memories of torture or, to use Vice President Dick Cheney’s phrase, “enhanced interrogation techniques.” The “intelligence sources” are the agents who tortured them. The “methods” are how they were tortured and that is not something the government thinks the press or American public should ever find out about.
Baltes said to Judge Pohl later in the proceedings the government had originally proposed an order that required defense attorneys to treat everything their client said as classified, including details on what their client had for lunch a day or two ago. The order was narrowed to protect statements on what occurred while in CIA custody.
“The prosecution is proposing that they only treat as classified and handle as classified statements that they know to be classified based on their security clearance,” Baltes told the commission. “And that would specifically include — or believe to be classified, and specifically include information about the CIA RDI program and their prior custody, detention, interrogation.” (RDI being the CIA’s Rendition, Detention and Interrogation program.)
…Now, the only one of those that the government can even arguably rely upon is under the control of the United States Government. If you can go to the next slide, please. So again here, they are relying upon the prong that this statement is arguably under the control of the United States Government….Okay, but the only reason that they think they have control over this information, the only reason that theythink that final prong is satisfied is because they are holding our clients essentially in isolation…
What Bogucki is suggesting is his client has been completely dehumanized. To the government, he is not a person. He is a vessel containing details that if disseminated would invite scrutiny or possibly undermined current operations or missions against terrorism. Therefore, this vessel cannot come in contact with other prisoners or else those prisoners might come into possession of this information that the government wishes to keep secret. So, Bogucki’s client must be held in solitary confinement and suffer under those conditions because some agents used classified methods of interrogation or torture on him.
Navy Lieutenant Commander Kevin Bogucki, who represents former CIA captive and former translator for Osama bin Laden, Muhammad Rahim, argued the government is arguing statements his client and other defendants would make are “under the control of the United States government” because they are in the government’s custody. “The only reason that they think they have control over this information, the only reason that theythink that final prong is satisfied is because they are holding our clients essentially in isolation,” Bogucki explained.
What Bogucki meant was Rahim and the other defendants have been completely dehumanized. To the government, they are not human beings. They are fleshy vessels holding information that, if disseminated, would invite scrutiny or possibly undermine current operations or missions against terrorism. Therefore, these vessels cannot come in contact with other prisoners or else those prisoners might come into possession of this information that the government wishes to keep secret. So, Bogucki’s client must be held in solitary confinement and suffer under those conditions because some agents used classified methods of interrogation or torture on him.
With this ruling, the government has won the privilege to keep the press and public in the dark on how they have treated 9/11 defendants. They have also won a precedent that will likely become a fixture of the process in this second-class legal justice system, which President Barack Obama chose to use over trials in federal courts.
This means any detainees held at Guantanamo that may find themselves being brought to trial will find it impossible to communicate to the world that their rights have been violated. Even if they are ultimately guilty of terrorism, entrenching this into the process proves the military commissions cannot be fair and that the government is capable will do whatever necessary to prevent violations of due process or human rights from infringing their ability to win convictions.