Confusion erupted at the Sept. 11 pretrial hearing on Tuesday when a prosecutor cautioned a judge against allowing open-court discussion of an unclassified 2008 document that offered speculation about five secret CIA detention and interrogation sites.
“Why can’t I discuss that in open court?” asked Army Judge Col. James L. Pohl of prosecutor Bob Swann. The court document itself is unclassified, the veteran prosecutor advised. But discussing it in open court might somehow confirm Top Secret information, he said.
At issue was a 2008 request by an attorney, Navy Cmdr Suzanne Lachelier, for a raft of information from the Bush administration as she prepared to represent alleged 9/11 plot deputy Ramzi bin al Shibh in the first attempt to mount a Sept. 11 tribunal. Bin al Shibh and the other four accused 9/11 plotters had arrived at Guantánamo 18 months earlier from the spy agency’s secret prison network, known as the Black Sites.
At the time Lachelier, had no access to classified information but sought, among other things, any records that might exist of alleged or real abuse of her client if he was held at Guantánamo; Udon Thani in Thailand; Mihail Kagalniceanu in Romania; Temara in Morocco; Pakistan’s ISI detention facility in Karachi, Pakistan; Szymany in Poland or any other place. Bin al Shibh was captured on Sept. 11, 2002.
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The request was essentially a fishing expedition. Lachelier had yet to meet Bin al Shibh or receive any classified information in preparation for a death-penalty trial for five former CIA captives accused of conspiring in the Sept. 11, 2001 hijackings that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon.
But Swann, who was a prosecutor in that version of the case, too, insisted that discussion of the unclassified document be held in closed session. Pohl called a hasty recess, and at one point conferred with his court security officer who can mute the audio from court in the event someone spills a CIA secret, something that hasn’t happened in the current session.
Defense attorneys said the confusion illustrated the prosecution’s pick-and-choose approach to classifying information and deciding what aspects of public information must be discussed in secret, in Lachelier’s words to the U.S. government “litigation advantage.”
In court and afterward several 9/11 defense attorneys noted that even today, eight years later, none of the defenders have classified knowledge of the secret places where the defendants were held and, in some instances waterboarded and rectally penetrated for rehydration.
The lawyers have litigated and lost legal motions for the information, and are currently litigating the U.S. government’s clandestine destruction of a secret CIA site whose location has never been disclosed to them.
“The government never told us” where they were held, said Marine Maj. Derek Poteet, the Pentagon-paid attorney for the alleged plot mastermind, Khalid Sheik Mohammed. “The government has never provided us any information about the countries that hosted the Black Sites,” added attorney Jay Connell, defense attorney for Mohammed’s nephew, Ammar al Baluchi.
Poteet argued Tuesday, not for the first time, that the information should be released because “the CIA torture program was illegal and it was a conspiracy to commit illegal acts.”
“Classifying information is being used to cover up those illegal acts and its conspiracy,” Poteet continued. “We have lives to defend.”
As it happened, the orange-bearded self-described al-Qaida operations chief, Mohammed, was absent from court, conferring with other defense counsel, when the Marine made the argument — to the dismay of prosecutors.
“I know that lives were saved,” Swann replied. “I sleep comfortably because of the very people that counsel impugned.”
What appeared to trouble the judge more than the back and forth characterization of the CIA as alternately torturers or honorable Americans was why an unclassified document — sitting on his desk, not hidden behind a red SECRET cover — could not be discussed in open court.
In fact, Lachelier and Swann had talked about the court filing without ever mentioning its exhibit number on the Pentagon’s website. Pohl blurted it out — AE434A — sending reporters to the website to discover that prosecutors filed it on Oct. 28, including the 2008 information in a supplement of unclassified fashion.
“It was a weird event, I will tell you,” Connell said afterward. “I thought it was weird.”
Earlier, defense attorneys had asked Pohl to rule the U.S. government had improperly classified a defense filing.
Prosecutor Swann, a retired former Army colonel judge, told judge Pohl, an active-duty Army colonel, that when he, Swann, was a judge he didn’t like to hear someone tell him he didn’t have the authority to do something from the bench.
But on declassifying something an intelligence agency had deemed Top Secret in the Sept. 11 national security case, Swann told Pohl: “You don’t have the authority to get into the classification realm in this particular instance.”