A military judge has ruled that any testimony about the CIA’s treatment of Khalid Sheik Mohammed and four other men accused of orchestrating the Sept. 11, 2001, attacks will remain secret during their death penalty trial at Guantanamo Bay, Cuba.
In a ruling dated Dec. 6 and released Wednesday, Army Col. James L. Pohl, the chief judge at Guantanamo, issued a protective order that will safeguard information the government deems classified during military commission proceedings against the five defendants.
Pohl prohibited the disclosure of information about the capture of the accused or where they were held for several years before they were transferred to the U.S. military prison at Guantanamo Bay in 2006. He also will keep secret “any information about the enhanced interrogation techniques that were applied to an accused from on or around the aforementioned capture dates through 6 September 2006, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques.”
Much of this information is in the public domain through reports by the CIA’s inspector general, the International Committee of the Red Cross and the news media, among others. Mohammed, for instance, was held at a secret prison in Poland and waterboarded 183 times after his capture in Pakistan in March 2003.
Protective orders are routine in civilian and military proceedings that involve issues of national security, but the American Civil Liberties Union argued that the government was seeking an overly broad classification of information. Each of the defendants joined the ACLU motion, and a group of news organizations, including The Washington Post, filed motions opposing the government’s position.
“We’re profoundly disappointed by the military judge’s decision, which didn’t even address the serious First Amendment issues at stake here,” said Hina Shamsi, director of the ACLU’s national security program. “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.”
The ACLU said it will appeal.
Army Lt. Col. Joseph Todd Breasseale, a Pentagon spokesman, said the government is “pleased” with the judge’s ruling. “We will continue to carry out these proceedings in a way that is as transparent as possible,” he said.
The government had argued that it was not acting to prevent the release of embarrassing information but to protect sensitive sources and methods.
“Each of the accused is in the unique position of having had access to classified intelligence sources and methods,” military prosecutors said in court papers.
The CIA, the FBI and the Defense Department also filed sealed declarations “explaining how disclosure of the classified information at issue would be detrimental to the 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.”
Pohl said he will maintain a 40-second delay between what is said inside the sealed courtroom at Guantanamo and what is heard by those in a glassed-off public gallery and at sites in the United States, including Fort Meade, where there will be a video and audio feed from the courtroom. If a court security officer thinks that something classified has been said, he can kill the audio feed or the entire broadcast.