By Peter Finn
Washington Post Staff Writer
Wednesday, January 7, 2009
The military judge overseeing proceedings against five of the men accused of planning the Sept. 11, 2001, attacks signed an order designed to protect classified information that is so broad it could prevent public scrutiny of the most important trial at Guantanamo Bay, Cuba, according to lawyers and human rights groups.
The protective order, which was signed on Dec. 18 by Judge Stephen R. Henley, an Army colonel, not only protects documents and information that have been classified by intelligence agencies, it also presumptively classifies any information "referring" to a host of agencies, including the CIA, the FBI and the State Department. The order also allows the court in certain circumstances to classify information already in the public domain and presumptively classifies "any statements made by the accused."
Three of the accused, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, are defending themselves and, under the order, anything they say during the course of the trial could be shielded from the public.
"These rules turn the presumption of openness on its head, making what is perhaps the most important trial in American history presumptively closed to the public and the press," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. "If these rules applied in all cases, there would be no such thing as an open trial in America."
Late Monday, the judge appeared to have second thoughts about the breadth of the order. In an e-mail to both the prosecution and the defense, he invited counsel to file briefs on whether the protective order expands "the definition of 'classified information' and the scope of protective orders generally beyond that provided for in the [Military Commissions Act] and other applicable legal authority?"
If so, the judge said, he wants to know what "modifications" should be made to the order.
Prosecutors defended the wording of the order. It "is standard language used in numerous other counterterrorism, counter-espionage or habeas detainee cases in federal court throughout the past nine years," said Col. Lawrence Morris, chief prosecutor for the Pentagon's Office of Military Commissions. "In fact, numerous cases have applied far more restrictive language in their protective orders that we did not implement here."
Asked if Henley would discuss his order, the Office of Military Commissions said it would be inappropriate for a judge to comment on an ongoing case.
Military and civilian defense lawyers in the 9/11 case declined to comment. They said they are under military court order not to discuss documents in the case until they have been released by the court. The protective order, which was obtained by The Post, had not been made public.
The case against the 9/11 defendants has yet to go to trial, and it is unclear if it ever will. President-elect Barack Obama has vowed to close the military prison at Guantanamo Bay. But he has not said whether he will also abolish the system of military commissions created by the Bush administration or if he will transfer cases to federal court or military courts-martial in the United States, as some of his supporters have urged.
The protective order states, in part, that "any document or information including but not limited to any subject referring to the Central Intelligence Agency, National Security Agency, Defense Intelligence Agency, Department of State, National Security Council, Federal Bureau of Investigation, or intelligence agencies of any foreign government, or similar entity, or information in the possession of such agency, shall be presumed to fall within the meaning of 'classified national security information or document' unless and until the [senior security adviser] or Prosecution advises otherwise in writing."
The senior security adviser assists the military court in the handling of classified material.
Defense attorneys and military and civilian lawyers advising the defendants representing themselves want to challenge any evidence gleaned from coercive interrogations at the hands of the CIA. But the defense is required to notify the prosecution of any intention to disclose "classified information in any manner." Defense lawyers said the order, which carries the threat of criminal penalties if it is violated, hobbles any ability to independently investigate the charges against the accused and their treatment by the government.
"It's a gag order that gives the U.S. government almost absolute control over the disclosure of information about the detention and interrogation of these defendants," said a lawyer familiar with the document, speaking on the condition of anonymity. "If you look at the order in its strictest language, you better not read even the 9/11 Commission report in a court in Guantanamo."
The document was signed after the Guantanamo Bay court considered motions from the prosecution and declarations by the director and officers of the CIA.
CIA Director Michael V. Hayden has acknowledged that Mohammed was subjected to waterboarding, an interrogation technique in which a prisoner is restrained as water is poured over his mouth, causing a drowning sensation.
But the ability to explore even that admission in open court is uncertain under Henley's order. Attempts to corroborate the known actions of the CIA can be classified under the order.
Mohammed has already alleged in open court that he was tortured, but such claims by the accused may now be considered classified and off-limits to the public. The Guantanamo court is sealed and the proceedings are heard by those in the public gallery after a time-delay that allows the senior security adviser to cut off the audio feed when information thought to be classified arises.
Pentagon officials have long insisted that trials at Guantanamo would be transparent as well as fair. Prosecutors said they have to balance the desire to be open with the need to protect national security secrets.
"It is also important to remember that defense counsel, by virtue of their access to the accused in this case, are uniquely situated to credibly comment, confirm, or deny classified information in a public way that risks further damage to national security," Morris said.
Daskal, however, said: "These rules seem little more than a thinly disguised attempt to classify evidence simply because it might be embarrassing or unlawful. These five men are known to have been tortured and severely mistreated during their years in CIA custody, including the acknowledged waterboarding of Khalid Sheikh Mohammed. The claims of torture should be investigated rather than concealed."
Staff researcher Julie Tate contributed to this report.