Former public testimony disappears from Guantánamo transcripts

For hours on a Friday, a staff sergeant using the fake name “Jinx” testified in open court about her yearlong work here at a prison for suspected terrorists once considered the CIA’s prized war-on-terror captives.

An Army cop by training, she signed up with the National Guard in the ’90s, and now runs 35 troops, just two of them women, tasked with escorting captives from their secret Camp 7 prison to Camp Echo II, where the alleged Sept. 11 mastermind Khalid Sheik Mohammed and other captives meet with their lawyers.

Around 120 troops are assigned to Camp 7, which holds 14 captives. But just half of them actually go up to the hillside prison.

On a given shift, she said, there are 20 guards, 35 escorts, two librarians, two evidence custodians and on-site management.

Of the 379-page transcript, more than 130 pages had redactions and 37 were fully blacked out.

If a captive resists an order, it takes a “five-man team, excuse me, five-soldier team,” to force him, Jinx testified; one to take charge of a captive’s head and four more soldiers each assigned to a limb.

The few reporters who went to court or watched on video feeds from Guantánamo to Fort Meade, Maryland, as well as a dozen legal observers and the mother and sister of a man killed in the World Trade Center on Sept. 11, 2001, heard her say all that in open court.

But as far as the public court record is concerned, those things were never said.

There is a rule that allows

Army Brig. Gen. Mark Martins, chief war court prosecutor

In a first for the war court, intelligence agencies scrubbed those and other facts — including questions asked by the judge, Army Col. James L. Pohl — from a 379-page transcript of the Oct. 30 pretrial hearing in the 9/11 death-penalty case.

A Miami Herald examination counted more than 130 pages with blacked out public testimony. Of them, 37 pages are completely redacted in the latest challenge to the remote war court’s motto, “Fairness, Transparency, Justice.” 

Typically the court releases the transcripts “word for word with no redactions,” chief prosecutor Brig. Gen. Mark Martins told reporters Saturday, defending the “rare” exception of “ex-post redactions” as a security necessity.

“I have not encountered it actually thus far for a transcript to be redacted. But there is a rule that enables that,” he said. “The government is fully entitled to look and say in the aftermath … ‘It ought to be protected, it could be damaging.’”

At issue on Oct. 30 was Pohl’s January restraining order forbidding female guards from touching the alleged Sept. 11 plotters as they come and go from court and legal meetings, an accommodation to their Islamic traditions. The restriction recently sparked outrage among top Pentagon brass and some in Congress. The issue is unlikely to be resolved before a closed session in February to hear classified testimony.

But now, in light of the retroactive redacting, case lawyers and the Sept. 11 trial judge will spend Monday huddling in closed court — no public, none of the accused conspirators listening — as they discuss how to go forward with the testimony on Pohl’s controversial restraining order.

Yale Law School lecturer Eugene Fidell, whose specialty has long been military justice, said the court has a 40-second audio delay to the public and a security officer assigned to block the feed with white noise and warned that the after-the-fact censorship could be “the new normal.”

The military has a real allergy to transparency.

Yale law instructor Eugene Fidell, military law expert

“The military has a real allergy to transparency,” said Fidell after declaring himself dumfounded by the effort to “sanitize stuff that has already been uttered in open court.”

“Obviously there are things that can and must be kept secret,” he said. “But to try to get the genie back in the bottle for information that has already been uttered in a public proceeding — especially where there’s a time delay to protect classified information — is preposterous.”

​​American University law professor Steve Vladeck says “there’s actually a fair amount of precedent for the government taking material that was in the public domain, and then choosing to classify it.”

He points to the current periodic release of State Department emails from the private server of former Secretary of State Hillary Clinton that were sent in an unclassified fashion and are being retroactively reviewed and in some instances redacted before being released to the public.

So, while not unprecedented, says Vladeck, “it does provide further evidence of the extent to which the prosecution’s repeated insistence on transparency often rings hollow.”

Martins, the chief prosecutor, countered: “It was uttered. There were people who heard it. It wasn’t being hidden in that sense. It was part of a hearing that is trying to be as transparent as possible.”

He added: “Public utterance of it is one thing, putting it on a website in the way it can be viewed is another and there is an entitlement to redact. There is a rule that allows ex post redaction.”

Martins declined to say which intelligence agencies were involved in the censorship but said the prison’s higher headquarters at the Southern Command, the Department of Defense and other government agencies all have interests. The process took a full month and, the Herald has learned, included a detailed explanation of the calculus for censorship emailed to case defense attorneys by a 9/11 prosecutor, Clay Trivett, that the prosecution won’t release.

Monday, defense attorney Jay Connell, representing alleged 9/11 conspirator Ammar al Baluchi, said the redactions went too far, and cited an example:

Censors blacked out unclassified descriptions of how the military conducts a forced cell extraction, he said, referring to the five-troop tackle-and-shackle technique to subdue a disobeying captive.

Meantime, the judge has not yet set a trial date for the five men accused of orchestrating the Sept. 11, 2001, attacks that killed nearly 3,000 people in New York, the Pentagon and a Pennsylvania field. “This is a pretrial proceeding not going to guilt or innocence,” Martin told reporters, pledging an open trial. “These are important distinctions in deciding whether something is public.”

Since last they met on the topic, Oct. 30, one thing has changed: The Pentagon is opening all combat position to women.

Defense attorney Cheryl Bormann, representing alleged plot deputy Walid bin Attash, dismissed Secretary of Defense Ash Carter’s recent decision as irrelevant to the female-guard escort question that emerged last year with the arrival of temporary Camp 7 forces, including women assigned to escort squads. “It’s really not an equal opportunity issue,” she said. “It’s really a religious accommodation issue.”

Editor’s Note: This story was updated on Dec. 7 to indicate female guard testimony is likely to continue in February. We also inserted an example of overreach in redaction cited by a defense attorney.

Carol Rosenberg: 305-376-3179, @carolrosenberg

Our reporter live-tweeted the Oct. 30 hearing, which has been retroactively censored. Click here for a compilation of those tweets.