The ACLUs Hina Shamsi said the organization would seek to appeal the decision, but would not elaborate on when or in what court.
The problem is not so much the audio delay, but the basis for it, said Shamsi, who argued the case at Guantánamo. She called the delay the tool through which the government unconstitutionally prevents the public from hearing testimony about torture.
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, she also said.
An attorney advocating transparency on behalf of 14 news organization, including The Miami Herald, had opposed the sweeping nature of the security restrictions as well. First Amendment attorney David Schulz argued that the judge had to make specific public findings of why national security would be harmed to shut the public out of certain proceedings.
To that end, Judge Pohl wrote that prosecutors had given him secret affidavits from the Central Intelligence Agency, Federal Bureau of Intelligence and Department of Defense that justified the security arrangement. Those affidavits are under seal. Neither the defense attorneys nor the public can review them.
The judges protective order did give one concession to defense attorneys: The creation of a Defense Security Officer, a government official with Top Secret clearances and understanding of CIA restrictions who can help the defense handle documents.
A court security officer twice this year took advantage of the 40-second delay to censor portions of legal arguments offered by military defense attorneys at pre-trial hearings in the 9/11 case. The censorship is achieved by replacing audio of the proceedings with white noise plus cutting the video feed to spectators watching proceedings remotely at Guantánamo and special sites at U.S. military bases.
In each instance, a review found the censorship unfounded. In May, the censor replaced a portion of Air Force Capt. Michael Schwartzs argument with white noise because the defense attorney for Bin Attash mockingly referred to the torture that my client was subjected to by the men and women wearing the big-boy pants down at the CIA.
The Pentagon restored the remark to an unofficial court transcript five days later, a Pentagon spokesman said, at the request of the chief prosecutor who heard the remark live and realized it didnt meet the standard for censorship.
More recently, on Oct. 17, Pohl ruled on the spot that the censor overreacted when he killed the sound and video feed to Navy Lt. Cmdr. Kevin Boguckis offering a hypothetical interrogation technique. Pohl had the audio and video restored for spectators and had Bogucki say out loud again what had been censored:
Your Honor, if I beat you, Im not providing you information. If I chain you to the ceiling, Im not providing you information. Im doing something to you.
This was part of the defense attorneys now failed bid to let the accused describe in open court what the CIA did to them before they got to Guantánamo in September 2006.
The newspaper groups that opposed the protective order called themselves the press objectors. Besides The Herald and its owners, The McClatchy Company, they included ABC Inc., the Associated Press, Bloomberg News, CBS Broadcasting Inc., Fox News Network, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Wall Street Journal and Washington Post.