The five men accused of plotting the terror attacks of Sept. 11, 2001, were in the custody of the CIA for up to four years before they were brought here for detention and trial. But exactly where the CIA held them and what was done to them there is a state secret at the military court in which they are charged with war crimes.
In 2008, Gen. Michael V. Hayden, then head of the CIA, told Congress that the alleged mastermind, Khalid Sheik Mohammed, was waterboarded. Hayden didn’t say where or how or whether anything else was done to Mohammed in an attempt to get him to give up al Qaida’s secrets.
“The government wants to kill Mr. Mohammed. They want to extinguish the last eyewitness to his torture so that he can never speak about it,” Mohammed’s defense attorney, David Nevin, told reporters in May after a 13-hour arraignment.
Just how much the world can know — and how much their lawyers can learn — about the years Mohammed and the other four men spent in the CIA prison network will be front and center this week at pre-trial hearings. The government argues that whatever the men say about their time in the so-called “black sites” is Top Secret, classified at the highest levels.
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The hearings start Monday and run all week, and will cover a range of issues from whether the prison camps can compel the men to attend their own trials to whether they can wear paramilitary attire to court. They were scheduled for August but delayed by Tropical Storm Isaac.
None of the men are particularly sympathetic characters.
Soon after Mohammed got to Guantánamo from the prison network where, the CIA’s own declassified documents disclose, he was waterboarded 183 times, the U.S.-educated, Pakistani-born man bragged to a military panel that he orchestrated the 9/11 attacks from “A to Z.”
His four accused accomplices allegedly trained, funded and arranged travel for the 19 hijackers that killed nearly 3,000 people at the World Trade Center, Pentagon and in a Pennsylvania field in the worst terror attack on U.S. soil. At their May arraignment, they refused to answer the judge’s questions.
Now this week, Army Col. James Pohl, the judge, will hear arguments from lawyers on how much the world can hear — and how much their own defense lawyers can discuss with the accused — of what happened to them during their years in CIA custody.
The chief war crimes prosecutor, Army Brig. Gen. Mark Martins, says the court is as transparent as the agencies that control the classifications allow. Meaning, if the CIA has declared something a secret, the government’s Pentagon prosecution team is bound to keep that secret.
Information is classified “to safeguard genuine sources and methods of intelligence gathering that can protect against future attack,” the general told an audience in London last month as part of a periodic speaking meant to quell criticism of the war court.
The government can’t close proceedings, he said, to shield the United States from embarrassment or to cover up that a law was broken.
Defense lawyers oppose the idea that anything the accused say is “presumptively classified.” They say the prison camps rules imposed on their work means that, as Nevin put it, attorney and captive are forbidden to discuss between themselves anything from what Mohammed says the CIA did to him to his “historical perspective on jihad.” Nevin called the war court system “a rigged game.”
They are likewise gagged from discussing publicly even the most mundane aspect of what the captives tell them.
“Everything is presumptively Top Secret. So if my client had a tuna fish sandwich for lunch, I couldn’t tell you that,” Cheryl Bormann, defense lawyer for alleged al Qaida lieutenant Walid bin Attash, told reporters after the May proceedings.
The other accused in the case are Mohammed’s nephew, Ammar al Baluchi, 34, like his uncle a Pakistani citizen; Ramzi bin al Shibh, 40, like bin Attash, 34, a Yemeni described in the charge sheets as willing deputies to Mohammed and Mustafa al Hawsawi, 44, a Saudi man who allegedly helped move the money that financed the hijackers’ travel to the United States.
All were captured in Pakistan in 2002 and 2003 and hidden for years from the International Red Cross, whose mandate is to monitor treatment of prisoners around the globe. In 2006, President George W. Bush had these men moved to Guantánamo for trial.
The American Civil Liberties Union argues that it is “Orwellian,” preposterous for the U.S. government to subject the men to the detention regime and then say they can’t talk publicly in court about what happened to them. Everyone but the accused was a willing participant in this chapter of U.S. history, yet they find themselves with the same gag order as most government employees with top secret clearances.
Attorneys for 14 media organizations, who like the ACLU will argue for openness at the court this week, argue that the public has a compelling interest in the case, as well as a constitutional right to access. If the judge closes portions, the so-called “press objectors” argue in their brief, he must explain in exacting detail what aspect of national security he is protecting.
(They are: ABC, Inc., Associated Press, Bloomberg News, CBS Broadcasting, Inc., Fox News Network, The Miami Herald and its parent McClatchy Co., National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Wall Street Journal, and Washington Post.)
Judge Pohl is hearing dozens of motions during the hearings, and may be able to act more swiftly and easily on some than others.
On the topic of attorney-client conversations, he has already over-ruled the prison camps commander in the capital case against a former CIA captive Abd al Rahim Nashiri, accused of the October USS Cole bombing that killed 17 U.S. sailors. And he has said he has the power to do so.
He has not said in court that he believes he has the authority to declassify information the government still stamps Top Secret – including details that have already leaked into the public about the captives four-year detour to Guantánamo during the Bush years.