Military defense attorneys for suspects the United States government has put on trial for their alleged involvement in the September 11th attacks have written a letter to President Barack Obama requesting that his administration take the step of declassifying details of the CIA’s rendition, detention and interrogation program. They have urged the administration to do this so the suspects can have a “fair, transparent death penalty trial.”
“As uniformed officers sworn to protect and defend the Constitution of the United States, assigned to represent prisoners in US custody at US Naval Station Guantanamo Bay who are facing the death penalty before military commissions, we write along with our civilian colleagues to urge you to give true meaning and effect to your statement of June 21, 2011,” they wrote.
In June, Obama said the US would comply with the Convention Against Torture, “As President, I have therefore made it clear that the United States will prohibit torture without exception or equivocation, and I reaffirmed our commitment to the Convention’s tenets and our domestic laws.”
The lawyers called for the declassification of “all aspects of the RDI program with respect to our clients against whom the United States seeks to impose the death penalty. True transparency and meaningful justice can only be achieved by a faithful application of deeds to aspirational statements.”
They argued the “existing classification restrictions surrounding the RDI program only facilitate further concealment of war crimes committed by agents of our government.” And “restrictions further violate our domestic commitment under the Convention Against Torture and the universal prohibition against silencing victims against torture.”
“These self-serving restrictions also prohibit us from faithfully discharging our duties and defending these men in a manner consistent with our most cherished values,” the defense counsel further argued.
Explicitly, they articulated how the Obama administration is a violating an executive order issued by President George W. Bush:
…Executive Order 13526, which President Bush issued in 2003, specifically provides that classification rules are not to be used to: “(1) conceal violations of law, inefficiency or administrative error; (2) prevent embarrassment to a person, organization or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security.” In fact, fear of public embarrassment and the desire to conceal war crimes are driving the classification of information from the RDI program. These restrictions prevent these capital trials from meeting the most basic standards of fairness. We ask you to exercise your Executive authority to affirm the Rule of Law and assure compliance with this Executive Order by all involved agencies, so that the promise of fair and transparent justice at Guantanamo is not an empty promise…
This is not some abstract concern. The government has sought to keep details on torture from being part of the 9/11 suspects’ defense by arguing that their memories of torture are classified.
Because the Accused were detained and interrogated in the CIA program, they were exposed to classified sources, methods, and activities. Due to their exposure to classified information, the Accused are in a position to reveal this information publicly through their statements. Consequently, any and all statements by the Accused are presumptively classified until a classification review can be completed.
Hina Shamsi, director of the ACLU’s National Security Project, has said, “The government’s claim that it can keep from the public the defendants’ testimony about their ‘thoughts and experiences’ of torture is legally untenable and morally abhorrent.”
Navy Lieutenant Commander Kevin Bogucki, who represents former CIA captive and former translator for Osama bin Laden, Muhammad Rahim, tried to outline the draconian and preposterous nature of the government’s position. He argued, “When the government voluntarily exposes someone outside their control to information, they are voluntarily relinquishing control over that information.” For example:
..[L]et’s say we are just imagining, for the sake of argument, that there is a classified CIA assassination program and one of the agents in this program goes and attempts to take out a target but fails, wounds the target but doesn’t kill him. That victim is now unable to describe the circumstances of the assault upon him because it might tend to reveal the personnel involved in this secret program, the means by which this program executes its duties? Clearly that makes no sense. It doesn’t matter how secret they kept it when they were planning and when they were working through the techniques of this secret program. Once they decide to execute that program in the real world and expose people outside their control to the essentially mechanisms or the product of that planning, they have now relinquished control over that. And to simply say, well, it relates to the secret program and therefore you can’t talk about it, goes far beyond what can properly be classified… [emphasis added]
The lawyers prosecuting the 9/11 suspects do not want torture committed by the CIA to be further exposed or made an issue in the trial and so there has been a continued subversion of attorney-client privilege at Guantanamo Bay.
On January 28, defense lawyers discovered an original classification authority (OCA) with the CIA was listening in to military commission proceedings and had the capability to censor them if they thought “sensitive information”—information on torture—would be revealed. Judge Col. James Pohl was found to not be in complete control of the courtroom, as the simple mention of the word “secret” led proceedings to be censored for a few minutes without his authorization.
Navy Commander Walter Ruiz, who is representing Mustafa Ahmed Adam al-Hawsawi, expressed concern, “Before we proceed any further, we can only assume that maybe they are monitoring additional communications, perhaps when we are at the counsel table. We know we have green lights that have the ability to record.” He urged the court to get defense lawyers answers on what the body monitoring proceedings was capable of doing. [Subsequently, Pohl ordered outside “censor buttons” to all be unplugged.]
Additionally, The Miami Herald’s Carol Rosenberg reported the lawyers would like to take photographs of scars from when they were inside “black site” prisons and use them as evidence.
The defense lawyers put it succinctly, “The classification of the RDI program is suppressing evidence, suppressing the truth and ultimately will suppress any real justice.”
Finally, it does not only affect the military commissions. It affects a Senate intelligence committee report on CIA torture that is 6,300 pages long and should be released to the public in some form. That will continue to be kept secret and crimes will be concealed as long as Obama doesn’t declassify details related to the RDI program.