Lawyer: Pentagon prosecutor retreating from gag order on 9/11 accused

Brig. Gen. Mark Martins, addressing reporters on May 6, 2012 after the arraignment of Khalid Sheik Mohammed,  46, and four alleged accomplices, refused to describe the filing on Tuesday.
Brig. Gen. Mark Martins, addressing reporters on May 6, 2012 after the arraignment of Khalid Sheik Mohammed, 46, and four alleged accomplices, refused to describe the filing on Tuesday.

Defense lawyers in the Sept. 11 case said Tuesday that the Pentagon prosecutor is backing away from a national security doctrine that reflexively gags anything the accused 9/11 plotters say to anyone at Guantánamo.

At issue is the controversial theory of “presumptive classification.” Because the accused 9/11 conspirators were held for years in secret custody by the CIA, and are now confined to a secret prison at Guantánamo, anything they say starts off classified as a national security secret.

They are facing a death-penalty trial at the Guantánamo war court, and their defense lawyers have argued that the interpretation has straight-jacketed their trial preparation.

Moreover, the American Civil Liberties Union disputes the concept of “presumptive classification” as being at odds with the public’s right to know what happened to the captives in secret U.S. custody. Agents seized the men in 2002 and 2003, and then turned them over to the military at Guantánamo in 2006.

“Today, the prosecution in the 9/11 military commission filed a document retreating from its argument for ‘presumptive classification’ of all detainee statements, regardless of their topic,” said James Connell, lawyer for Ammar al Baluchi, the nephew of alleged mastermind Khalid Sheik Mohammed. “Defense attorneys have vigorously opposed the practice of presumptive classification.”

A military judge is set to consider the legality of the doctrine during hearings at Guantánamo Oct. 15-19.

The chief prosecutor declined to say whether or how he had retreated from the doctrine in the filing. Under war court rules, it was filed under seal — lawyers get to read it, the public cannot — until U.S. intelligence authorities decide which portions to redact.

“The government is committed to considering every reasonable and appropriate measure that could help facilitate the attorney-client relationship,” the prosecutor, Army Brig. Gen. Mark Martins, said in statement.

Martins’ remarks suggest that defense lawyers will now be able to discuss certain off-limit topics with the accused terrorists. Left unclear was whether the lawyers will now be allowed to talk publicly about their conversations with their clients.

Attorney Cheryl Bohrmann, defending alleged al Qaida lieutenant Walid bin Attash, explained the rules this way in May: “Everything is presumptively Top Secret. So if my client had a tuna fish sandwich for lunch, I couldn’t tell you that.”

Read more Guantánamo stories from the Miami Herald

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