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.