The chief of the Guantánamo war court has approved the use of a time delay on public viewing of the Sept. 11 death-penalty trial as well as a censor in his court to make sure nobody divulges details of a now defunct CIA interrogation program, citing national security interests.
The American Civil Liberties Union challenged the 40-second delay, arguing that the Pentagon had transformed the courtroom at Camp Justice in Cuba into a “censorship chamber” for the coming death penalty trials. The rules effectively prevent the public from learning anything about what the CIA did with the alleged terrorists before their 2006 transfer to Guantánamo for trial.
Spectators who watch the proceedings at the war court sit in a soundproof room, watching the trial live but hearing the audio 40 seconds later. If a court security officer functioning as a censor deems what is being said is a national security secret, the sound is obscured by white noise.
Army Col. James L. Pohl, the judge, wrote in his five-page decision that he is “acutely aware” that he has “twin responsibilities of insuring the transparency of the proceeding while at the same instance preserving the interests of national security.”
But, he wrote, “the brief delay is 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 CIA’s 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 — which has admitted to waterboarding the alleged mastermind 183 times — to extract confessions and other information in the program that the Obama administration has since banned.
The censor has done this twice this year, both times to stop the public from hearing defense lawyers, and both times in error.
The chief prosecutor, Army Brig. Gen. Mark Martins, has said only voluntary confessions will be admissible at the trial of five men accused of orchestrating, financing and training the 19 hijackers who killed nearly 3,000 people on Sept. 11, 2001.
Charged are alleged mastermind Khalid Sheik Mohammed, 47, who told a Guantánamo panel after his transfer from CIA custody that he devised the Sept. 11 attacks “from A to Z” and four alleged conspirators. They are Yemenis Ramzi bin al Shibh, 40, and Walid bin Attash, 34, described as Mohammed’s deputies; and two men accused of helping arrange the hijackers’ travel and United States finances, Saudi Mustafa al Hawsawi, 44, and Pakistani Ammar al Baluchi, 35.
All are charged with war crimes to be heard by a jury of military officers, which can also order their execution.
The judge explained the security arrangements in a ruling and accompanying 20-page “protective order” ruling, which he also signed Dec. 6. Both were made public on a Defense Department website Tuesday evening after the Pentagon gave the intelligence agencies an opportunity to scrub them of information the public shouldn’t see.
In this instance, they were released unredacted.
The protective order itself spells out that anything about their CIA custody is classified, including “their observations and experiences,” meaning the accused can’t say what happened to them at the so-called “dark sites” in open court.
The ACLU’s Hina Shamsi said the organization would seek to appeal the decision, but would not elaborate on when or in what court.
“The problem is not so much the audio delay, but the basis for it,” said Shamsi, who argued the case at Guantánamo. She called the delay “the tool through which the government unconstitutionally prevents the public from hearing testimony about torture.”
“For now, the most important terrorism trial of our time will be organized around judicially approved censorship of the defendants’ own thoughts, experiences and memories of CIA torture,” she also said.
An attorney advocating transparency on behalf of 14 news organization, including The Miami Herald, had opposed the sweeping nature of the security restrictions as well. First Amendment attorney David Schulz argued that the judge had to make specific public findings of why national security would be harmed to shut the public out of certain proceedings.
To that end, Judge Pohl wrote that prosecutors had given him secret affidavits from the Central Intelligence Agency, Federal Bureau of Intelligence and Department of Defense that justified the security arrangement. Those affidavits are under seal. Neither the defense attorneys nor the public can review them.
The judge’s protective order did give one concession to defense attorneys: The creation of a Defense Security Officer, a government official with Top Secret clearances and understanding of CIA restrictions who can help the defense handle documents.
A court security officer twice this year took advantage of the 40-second delay to censor portions of legal arguments offered by military defense attorneys at pre-trial hearings in the 9/11 case. The censorship is achieved by replacing audio of the proceedings with white noise — plus cutting the video feed to spectators watching proceedings remotely at Guantánamo and special sites at U.S. military bases.
In each instance, a review found the censorship unfounded. In May, the censor replaced a portion of Air Force Capt. Michael Schwartz’s argument with white noise because the defense attorney for Bin Attash mockingly referred to “the torture that my client was subjected to by the men and women wearing the big-boy pants down at the CIA.”
The Pentagon restored the remark to an unofficial court transcript five days later, a Pentagon spokesman said, at the request of the chief prosecutor who heard the remark live and realized it didn’t meet the standard for censorship.
More recently, on Oct. 17, Pohl ruled on the spot that the censor overreacted when he killed the sound and video feed to Navy Lt. Cmdr. Kevin Bogucki’s offering a hypothetical interrogation technique. Pohl had the audio and video restored for spectators and had Bogucki say out loud again what had been censored:
“Your Honor, if I beat you, I’m not providing you information. If I chain you to the ceiling, I’m not providing you information. I’m doing something to you.”
This was part of the defense attorneys’ now failed bid to let the accused describe in open court what the CIA did to them before they got to Guantánamo in September 2006.
The newspaper groups that opposed the protective order called themselves “the press objectors.” Besides The Herald and its owners, The McClatchy Company, they included ABC Inc., the Associated Press, Bloomberg News, CBS Broadcasting Inc., Fox News Network, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Wall Street Journal and Washington Post.