Khalid Sheikh Mohammed

Khalid Sheikh Mohammed

The military commissions has posted the two to three minutes from the afternoon proceedings on January 28 that an individual outside of the Guantanamo war court chose to censor. When the censorship occurred, the judge was frustrated as he said he did not know there was anyone outside of the court that could censor the proceedings.

The censor or the “40-second delay” was hit when David Nevin, the defense lawyer for Khalid Sheikh Mohammed, one of the 9/11 suspects facing terrorism charges, said the name of a defense motion.

Here’s the portion of the transcript restored this morning:

NEVIN: …I want to say, I  take it that B means that we are going to do this in a 505 [secret session] and that some portion of this will turn out to be closed or secret. And on behalf of Mr. Mohammad, I object to proceedings being closed, because they deal with preservation of evidence of a detention facility.It’s a critical matter to Mr. Mohammad. It’s central to the case as far as he’s concerned.

COL POHL: Mr. Nevin —-

MR. NEVIN: I object to the proceedings being closed here.

COL. POHL: Okay. Let’s do the 505(h) hearing, and then if we do close proceedings, you can object. Because  there’s no decision been made whether proceedcings will be closed or not, got it.

MR. NEVIN: Thanks, Your Honor.

COL. POHL: No problem.

CDR RUIZ: Judge, I would just simply adopt Mr. Nevin’s argument on behalf of Mr. Hawsawi.

MS. BORMANN: I’m sorry. I couldn’t hear.

However, if one reads that aloud, it only totals about fifty seconds or minute. It is reasonable to say that other words were spoken by the government, the defense and the judge.

This is clear because the military inserted this sentence into the transcript:

[Due to the security button being pushed, chief security advisor and attorney advisor conferred with themilitary judge.] [emphasis not added]

What was said in the exchange should appear in the transcript, but it appears something was said in that minute before the feed was restored that the government does not want to add into the transcript.

The military now claims that the transcript was “restored,” but if it was recording discussion of the censorship, that should be in the public record and not merely summarized. The decision to censor was startling for not just the press but also the judge, as it showed that some outside body has a person who is able to interfere in proceedings whenever they choose without notifying the judge prior to censoring the proceedings.

This person—an original classification authority (OCA), as the government revealed—likely works in cooperation with the CIA and is tasked with ensuring that even the tiniest amount of information on the CIA’s Rendition, Detainee & Interrogation (RDI) program is not heard by the press. The episode shows the OCA may censor unclassified language. There are details on the RDI program in the public record.

If Mohammed or another 9/11 suspect describes their treatment in CIA custody and that happened to be in the CIA Inspector General report, will the OCA be interfering again? The whole entire episode raises serious questions about the military commission’s claimed commitment to transparency and fairness.

For more background on this episode, including what defense lawyers said to the judge after the feed was restored about being afraid some outside body could be eavesdropping on conversations with their clients, go here

 Photo provided by the family of Khalid Sheikh Mohammed