The war court prosecutor is arguing that public disclosure of a transcript of a public hearing held at Guantánamo last year could endanger national security in response to a legal motion brought by 17 news organizations protesting pick-and-choose secrecy in the Sept. 11 pretrial hearings.
Army Brig. Gen Mark Martins makes the argument in a filing obtained by The Miami Herald that was still being reviewed for sensitive information on Thursday and not publicly released. At issue is the Pentagon’s decision to black out large portions of a 379-page transcript of an Oct. 30 hearing that included testimony from two soldiers who work at Guantánamo’s most clandestine prison, called Camp 7.
“That this information was uttered in a public session or is reported in news coverage does not render the information unprotected or vitiate the damage further disclosures would beget,” prosecutors wrote Jan. 29 in the 29-page filing in the war court case against Khalid Sheik Mohammed and four other men accused of plotting the Sept. 11, 2001 attacks.
In defending the decision to censor what was public information, the prosecutors included a less-redacted transcript that showed previously blacked out sentences and in the same filing sealed up a declaration from the Guantánamo prison commander explaining what is at risk.
A Herald count showed about 90 censored pages had information restored — including, frequently, a soldier’s reply “that is correct” to still blacked out questions. Also no longer censored: Questions posed by the judge, Army Col. James L. Pohl, to a soldier using the fake name Staff Sgt. Jinx. When a censor did restore Jinx’s answers, numbers that provided specific information were blacked out, rather than whole pages or paragraphs.
The media motion, by 17 news organizations including the Miami Herald and its owner McClatchy, as well as The New York Times, AP and BuzzFeed, framed the issue as a Constitutional right of public access to court proceedings. Attorney David Schulz argued that the information should be public unless the government can demonstrate “a substantial probability of harm to a compelling interest that can effectively be avoided by limited sealing. No such showing has been made here.”
That 19-page war court filing, dated Jan. 6, was still undergoing a security review, according to the war court website whose motto is “Fairness ☆ Transparency ☆ Justice.”
Both the Jan. 6 media motion and the prosecutor’s Jan. 29 response were still undergoing a security scrub Thursday.
Schulz notes that the war court itself “has recognized the importance of posting the records of this proceeding to its website as an effective means of vindicating the right of access.”
At issue at the Oct. 30 hearing was how Camp 7 staff move the former CIA captives outside of their cell in compliance with an order forbidding female guards from touching the captives, an accommodation to their interpretation of Islam. The judge, Pohl, is considering a prison request to lift the order, and could hear more testimony on its impact when the court reconvenes at the remote Navy base in Cuba Feb. 16.
The judge’s order has drawn condemnation from senior Pentagon officials as well as members of Congress.
Reporters, Sept. 11 victim family members and other members of the public heard the testimony on Oct. 30 through a 40-second audio delay designed to let the judge or a court security officer mute the sound if anyone spilled national security secrets. No one ever pushed the button. But when the transcript came out weeks later, portions that the Miami Herald had reported in a routine Twitter stream were gone.
Now, a comparison of the two different censored transcripts of the same hearing offer a study in over-classification. Nearly every redaction is refined in the updated version.
It restores some information that was already known, for example that the military uses five troops to conduct a Forced Cell Extraction on a defiant prisoner, one to grab the captive’s head and the others each assigned to a limb, and that the Sept. 11 defendants have their cells searched daily.
On page 9272 of the court transcript, a censor originally blacked out a remark by Chicago defense attorney Cheryl Bormann, “I’m civilian but getting used to the acronyms,” and a soldier’s reply of “Yes.” The newer version lets the public see that exchange.
The war court prosecutor does not explain in his opposition to unsealing the entire transcript whether, in the intervening months, an intelligence agent declassified portions of the Oct. 30 transcript to release more of it — or whether someone at the war court invoked a “protected information” prerogative to black out certain information, something that’s easy to undo.
But the prosecution filing casts what remains redacted as state secrets. “There is no history of public access to classified information in a criminal case.”
At the Pentagon Wednesday, Navy Cmdr. Gary Ross said, “The Office of Military Commissions is not aware” of the new version of the transcript provided by the prosecution to attorneys for the media — and therefore could not say whether the two versions represented declassification.
The new version takes a more surgical approach to the censorship. Rather than black out entire pages, the latest version restores whole pages minus numbers that provide a granular look at staffing at the secret Camp 7 prison, where Jinx explained many of the people assigned to its staff don’t actually work. It allows the world to know how long witnesses who testified on Oct. 30 served in the military, and where they were assigned before.
In urging the judge to reject the media request, the prosecution argued that a military commissions judge can’t second guess whether something is properly classified. Rather, it is his role to make sure “proper authorities” declared something classified “in accordance with the appropriate regulations.”
Camp 7’s location is a secret, leaving open the possibility that many of the National Guard troops on temporary assignment to Camp 7’s Task Force Platinum, don’t actually know where it is and go somewhere else on the sprawling base to work. Jinx never explained why in open court testimony but other Sept. 11 hearing testimony showed that the prison has a secret program that hears everything that goes on there, suggesting there may be an off-site eavesdropping station.
Schulz argued in the media filing that the public has a legitimate interest in the issue of the female guards’ roles at Guantánamo in light of the Pentagon’s recent announcement that women will be allowed to serve in combat, just like men. He offered to elaborate in oral arguments at this month’s hearings. “The prosecution objects to oral arguments,” Martins replied, explaining the court didn’t need to hear anything else to resolve the media motion.
The prosecutor counters that the transcripts, which it frequently quotes in its pleadings, don’t constitute “judicial records.” Rather, the general writes, they are provided as a convenience.
In urging Pohl to reject the media request, the prosecution argued that a military commissions judge can’t second guess whether something is properly classified. Rather, it is his role to make sure “proper authorities” declared something classified “in accordance with the appropriate regulations.”
And one proper authority, apparently, is the new prison camps commander, Navy Rear Adm. Peter Clarke.
A sealed declaration, according to the prosecution filing, lists “several harms that are likely to occur” if information made public at the hearing is released in transcript form. It does not elaborate.
Clarke dismisses news accounts from that day as “merely that reporter’s characterization of the testimony; whereas publication of the transcript in full would be seen by the same outside observer as confirmation of the information in the testimony.”
A transcript, he adds, according to the prosecution, “could be mined by those with intentions hostile to the United States and JTF-GTMO” — the official name of the 2,000 member staff that come and go from Guantánamo currently responsible for the last 91 detainees. Fourteen of them are held at Camp 7, the secret prison for former CIA captives, a figure that was initially censored and then restored.
Among the information restored for public viewing is that for medical reasons guards use different restraints on one of the alleged 9/11 plotters, Saudi Mustafa al Hawsawi, who suffered rectal damage in CIA custody. The soldier did not specify the difference in court.
The media organizations appealing the ex-post redaction of a public hearing include: The Miami Herald, ABC, Associated Press, Bloomberg, BuzzFeed, CBS, Dow Jones & Co., First Look Media, Fox News, Guardian US, Hearst Corp., The McClatchy Co., The New York Times, The New Yorker, Reuters, Tribune Publishing Co., and The Washington Post.
More on the hearing