Guantánamo: a place of sometimes-puzzling secrecy
The war court proclaims that transparency is a priority in testimony and legal filings. But when a claim of national security is invoked, secrecy wins out.
01/05/2013 2:49 PM
11/07/2014 2:05 PM
When victims of al-Qaida attacks want to talk to reporters at Guantánamo, retired Navy Capt. Karen Loftus squires the so-called “victim family members” to Camp Justice’s press shed and introduces herself as their escort.
When The New York Post put a spotlight on Loftus’ unique role as victim and witness advocate in the coming Sept. 11 death penalty trial, the native New Yorker willingly posed for a photo at the Brooklyn Bridge.
So it came as a puzzlement in December when the Pentagon blacked out her name on a military judge’s order compelling her to testify this month in a pre-trial hearing of a Guantánamo death penalty case. The job description in the order made it clear Loftus would be the witness — even with her name covered up.
So why the secrecy in postings on the Pentagon’s military commissions website, the portal for tribunal documents, whose motto is “Fairness, Transparency, Justice?”
“I’m following the office policy because I’m a witness,” said Loftus, who works from the Pentagon’s War Crimes prosecutor’s office in Washington, D.C.
Yes, the woman in charge of arranging travel for victims and witnesses is herself being treated as an anonymous witness in the case of Abd al Rahim al Nashiri, the alleged architect of the October 2000 bombing of the USS Cole — al-Qaida’s attack that killed 17 U.S. sailors.
Meantime, the episode serves as the latest illustration of the peculiar pick-and-choose transparency that exists in the war court that the Bush and Obama administrations built in the aftermath of the Sept. 11, 2001 attacks.
The Pentagon’s death penalty trials are months if not years away, and the court is systematically constructing a patchwork of secrecy to surround the security trials that, by order of Congress, are being held outside the United States at the U.S. Navy base in Guantánamo Bay, Cuba.
The CIA delivered Nashiri to Guantánamo for trial in 2006, according to declassified documents, after agents waterboarded him, threatened his mother, and held a revving drill and cocked gun to his head. But where he was held or anything about the CIA interrogation techniques, which President Obama banned upon taking office -- none of these may be revealed in open court by order of the judge. The same is true about what the CIA did to the five accused conspirators in the 9/11 attacks.
A U.S. government censor sits in the Guantánamo court, his finger on the button of a white-noise machine that can muffle sound if he suspects someone is about to utter a state secret. Spectators hear courtroom conversation on a judicially sanctioned 40-second delay.
It is in this court that Loftus is being called to testify about her job the week of Feb 4. She runs a Pentagon lottery for family members of victims who want to watch the Guantánamo proceedings. She also operates a members-only portal on the Pentagon website and arranges their travel. She travels with the victims from Washington, D.C., to Guantánamo, where she has been seen comforting victims in court, and dining with them at the base pub.
In court, she can instruct a guard to pull a curtain around the victims inside the spectators gallery to shield them from the searching eyes of other observers. She helps them decide if, or when, they talk to reporters.
Defense lawyers for Nashiri say they need their own staff member authorized to approach Pentagon-approved victims. Over the prosecution’s objections, defense lawyers got the trial judge’s order for Loftus to testify in court along with a non-government expert on victim-witness relations, Tammy Krause, whose name, perplexingly, is not blacked out in a separate judge’s order.
As for Loftus’ identity, it’s being “protected from disclosure to the public” because it meets the definition of “general discovery materials,” says Army Lt. Col. Todd Breasseale, a Pentagon spokesman. She’s entitled to anonymity until her “actual testimony,” said Breasseale, who would not elaborate on why a government-salaried worker gets anonymity but the civilian defense witness does not.
Zachary Katznelson, a sometime Guantánamo court observer as senior attorney with the American Civil Liberties Union’s National Security Project, called the redaction of Loftus’ name an example of “confusing and inconsistent application of opaque rules.”
If her name had never been made public, and the judge likewise had Krause’s name blacked out prior to testimony, that would make sense, he said.
But, “her name is already in the record by name and it wasn’t bleeped out in our 40-second delay and it’s already in the transcript,” said Katznelson.
Katznelson is a lawyer who has filed unlawful detention suits for some of Guantánamo’s captives, and throughout the interview was careful never once to speak Loftus’ name, just in case.
That’s because lawyers, as well as journalists, must navigate a minefield of rules that can suddenly and inexplicably pop up. In 2010, the Pentagon banned four reporters from covering the war court — for life — for publishing the name of former Army Sgt. Joshua Claus, a military interrogator who was to testify anonymously in a war-court hearing. He previously had been interviewed and identified by name in a Toronto Star article. Some of the reporters hired a lawyer, and the Pentagon relented. Now reporters have to sign 12 pages of ground rules to get access to the Guantánamo court compound. But rule C.3. makes it clear that the Pentagon can’t punish reporters for publishing Loftus’ name.
The judge, however, can let even people who are identified in the court record by name testify incognito.
That’s what happened at a 9/11 hearing in October when Army Col. James Pohl, chief of the war court, agreed to let a deputy prison camps lawyer testify anonymously — even though her name, rank and duties are publicly available in uncensored documents at the court. Why? One prosecutor said she was entitled to anonymity as part of the security force. The chief prosecutor argued that, in the absence of a protective order, she should get protection.
And the protective order, which lays out what can be kept secret is sometimes a secret, too.
On Dec. 20, Judge Pohl signed a protective order covering “Unclassified Discovery Material” in the Sept. 11 case — outlining the obligations of lawyers and court workers on what they must keep secret in the run-up to the trial. The Pentagon waited a week, until two days after Christmas, to notify the public of the existence of “Protective Order #2.”
Ever since Barack Obama was elected on a pledge to increase “transparency” in government, then had his lawyers reform the military commissions, the term has become nearly a mantra at Guantánamo. The prison camps that hold 166 captives, all but nine without conviction or charge, already had adopted the motto of “safe, humane, legal, transparent” detention.
Then the Defense Department spent nearly $500,000 to construct a war court website decorated with “Fairness, Transparency, Justice” on each and every page that posts documents — after the intelligence agencies get up to 15 days to scrub them. Whole filings are secret, notably one by the prosecution in both death-penalty cases that seeks a secret finding from the judge that even the defense lawyers have not seen.
During a recent talk, the chief prosecutor, Army Brig. Gen. Mark Martins, said that “openness is an absolutely critical” value at the Guantánamo court. “It provides sun, disinfectant, allows people to feel comfortable that corruption is not happening in their processes,” he told a class at the University of Miami Law School in November.
“But this is also about finding the truth, seeking accountability and also about protecting the public interest, which isn’t always in the advertising of every piece of information,” Martins said. “In the areas of national security, in the areas of privacy information, not all of that should be trotted out in front of everybody. That’s the basic rationale.”
So, with the blessing of the judge, the names of foreign nations where the CIA held captives are redacted — blacked out — when motions about Nashiri’s overseas capture and treatment are made public. Declassified investigative reports found abuse. But the prosecutor, Martins, has pledged that no involuntary confessions would be used against a war court accused.
In the case of Loftus, defense lawyers want to have someone from their side trained to approach victims.
If there’s a conviction, victims typically advise the military jury on whether they want the criminal executed. If there’s a proposal for a plea agreement, victims may want to hear something from the accused, and defense lawyers can serve as go-between.
As the government’s witness/victim advocate, Loftus is “not a neutral person,” said attorney Rick Kammen, Nashiri’s civilian death penalty defense lawyer. “There may be a whole host of survivors or victims who for varying reasons aren’t as engaged or may be engaged differently. We need to reach out.”
Asked why the government covered up Loftus’ name in his motion to call her as a witness, he replied: “I can’t possibly imagine.”
Neither can Nashiri’s Pentagon defender, Navy Lt. Cmdr. Stephen Reyes, who has taken to referring to the nations that might have information about his client’s treatment as “ Redact-istan.” Each and every time a foreign country appears in their filings, the name is redacted, blacked out as a national security secret.
“This whole ‘Redact-istan, Redact-igate’ issue does show disparate treatment,” says Reyes, who never once in a lengthy interview spoke Loftus’ name. Just in case.
Carol Rosenberg has covered the war court and prison camps since their inception and was one of the four reporters “banned for life” for a period of time in 2010.
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