Weeks after they were rebuffed by the Sept. 11 trial judge, civil liberties and media groups have appealed to the Pentagons Court of Military Commissions Review for more transparency at the Guantánamo war court.
At issue is whether the world can hear the accused 9/11 mastermind Khalid Sheik Mohammed and his alleged co-conspirators talk about what the CIA did to them during their years of secret custody before they got to Guantánamo. Government officials already have acknowledged that CIA agents waterboarded Mohammed 183 times.
But on Dec. 6, Army Col. James L. Pohl, the 9/11 trial judge, adopted a sweeping protective order that systematically closes the court for portions of the coming death-penalty trial that provide details about the harsh interrogation techniques used on the accused in the CIAs now-closed secret prison network.
Pohl also put his judicial stamp of approval on a Pentagon-engineered 40-second delay of what spectators can hear from the court, time enough for censors to mute the audio if someone suspects anyone in the courtroom might spill national security secrets.
Fourteen media organizations, led by The Miami Herald, and the American Civil Liberties Union want the appeals court to throw out that security protocol as unconstitutional censorship.
The protective-order provisions censoring from the public defendants testimony about government torture and other abuse could hardly be more extraordinary or draconian, the ACLU wrote Feb. 21 in a 33-page brief. The public has a constitutional right to hear defendants testimony.
The news groups argued in a 45-page appeal filed Feb. 14 that the judges closure policy violates First Amendment rights by requiring the sealing and closure of all classified information, and by declaring what the accused think about and remember of their CIA treatment as automatically classified.
Pohl has the authority to close aspects of the trial, the news groups attorney argues, but the judge must narrowly tailor his closures and explain in public the national security risk before each and every closure.
It is unclear whether the panel will decide the appeal before the next session of the war court April 22 at Guantánamo, where Pohl is hearing pre-trial arguments that set the stage for the capital terror trial of the five men who allegedly trained, funded and organized the Sept. 11, 2001 hijackers
The court assigned a five-member panel to hear it three colonels, one lieutenant colonel and a civilian, Duke University law professor Scott Silliman. One of the officers is Air Force Col. Ronald Gregory, who presided at the 2008 trial of Osama bin Ladens media aide, Ali Hamza al Bahlul, whose conviction was recently vacated.
The panel gave prosecutors until March 6 to respond.
If the court allows oral arguments, those would be held in Washington, D.C., where the occasional court has borrowed space at United States Court of Appeals for the Federal Circuit across Lafayette Park from the White House. That court handles certain international trade, government contracts and patent issues.
The media appeal cited a recent episode at the war court in its bid to argue why the judges sweeping closure order is too broad:
A government agent, whose identity has not been made public, reached into Pohls courtroom Jan. 28 and clicked off the audio at a pre-trial proceeding, just as Mohammeds defense attorney mentioned a motion for a protective order on the secret CIA prison network. The judge appeared enraged and in the space of several days declared the closure wrong, an intrusion on his authority and ordered the Pentagon to unplug any outside censors.
While Judge Pohl insisted this should not happen again, wrote First Amendment attorney David Schulz, the episode underscores the more fundamental problem that the protective order authorizes proceedings automatically to be closed when any classified information is discussed.
The First Amendment requires a judicial assessment of the basis to believe that the release of specific information would threaten national security; the protective order in this case requires no such thing.
Pohl never allowed public discussion of which government agency had the authority to censor inside his court and the chief prosecutor, Army Brig Gen. Mark Martins, wouldnt disclose that, either.
For his part, the judge wrote in his December ruling that he was acutely aware of twin responsibilities of insuring the transparency of the proceeding while at the same instance preserving the interests of national security. He called a 40-second sound delay from the court to those allowed to watch the court at Guantánamo or through closed-circuit feeds the least intrusive and least disruptive method of meeting both responsibilities.
The delay lets a security officer who sits near the judge push a button to muffle any details that the trials might divulge of the captives years of captivity in the CIAs now-closed secret overseas prison network who captured them, interrogated them, where and using which Bush-era enhanced interrogation techniques. All the men say they were tortured by the CIA to extract confessions and other information in the program that the Obama administration has since banned.
Martins, who has worked on military rule of law efforts in Afghanistan and Iraq, argues there are real national security considerations in shielding the CIAs activities from 2002 through 2006 but wont spell them out.
The ACLU calls the court a censorship chamber that seeks to silence information that people ought to know, or may already have learned through leaks and congressional investigations.
Given the existence of those copious public details about defendants unlawful interrogation, rendition, and black site detention, ACLU lawyer Hina Shamsi wrote in her brief, the protective orders categorical censorship of all of defendants testimony about their personal experiences and memories of illegal government conduct is the very antithesis of the narrow tailoring required by the First Amendment.