During a secret hearing at Guantánamo, the military judge in the 9/11 death-penalty case ruled against a secret government request to withhold information from defense lawyers for accused Sept. 11 mastermind Khalid Sheik Mohammed and his four alleged co-conspirators, according to a partially redacted transcript released Tuesday.
The hearing, held Aug. 19 at the U.S. Navy base in Cuba, was the first closed pre-trial hearing of the Sept. 11 capital case. The subject matter was so secret that the judge cleared the court of the public and the five men who, if convicted, could be executed for conspiring to carry out the worst attack on U.S. soil, including 2,976 counts of murder.
And, while the 31-page transcript of the 29-minute hearing is so riddled with redactions that it is unclear what the Pentagon prosecution team was trying to shield from the defense attorneys, it shows the judge denying the request.
“I’m ruling it is discoverable,” Army Col. James L. Pohl said in response to a secret prosecution motion that argues something “is not discoverable.”
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At issue in the hearing was a pretrial motion labeled AE52 by the prosecution that sought a secret ruling from the judge. It was called a “government consolidated notice regarding ex parte, in camera filing and motion for finding” on the Pentagon’s war court website whose motto is “fairness, transparency, justice.”
A government protective order in the case blocks from public view the details of the CIA’s secret prison network where the five alleged plotters were held for years and, they and their lawyers say, were tortured. A censor in the court can cut off the audio to the public if he or the judge fears national security secrets will be spilled.
But the judge ruled that in this instance the risk was so great that he closed the Aug. 19 hearing entirely. On Tuesday, the Pentagon released the partial transcript after U.S. intelligence agencies redacted secret information from it.
Prosecutor Joanna Baltes, a Justice Department classification expert, tried to pin Pohl down on what he would allow the defense lawyers to see.
“I’m not ruling on whether they [redacted],” the judge says in the public portion of the transcript. “I’m not ruling on whether [redacted]. I’m not ruling on whether [redacted]. I’m simply saying the information is discoverable and I will address the form at a later date.”
Discovery, in a legal setting, is evidence that the prosecution is obliged to show the accused before a trial.
At the Pentagon, chief prosecutor Army Brig. Gen. Mark Martins declined to answer a question on whether the ruling constituted a setback, or whether his office was considering challenging the judge’s ruling at a special military commissions appeals panel.
In his place, Army Lt. Col. Todd Breasseale, a Pentagon spokesman, refused to elaborate on what went on in the secret session.
“All rulings are of some consequence to the path forward,” Breasseale said, adding that the Pentagon prosecutor “remains committed to seeking accountability under law and will continue to do so.”
Retired Air Force Col. Morris Davis, who was chief prosecutor when the 9/11 accused were brought to Guantánamo in 2006, questioned what needed to be kept secret in the case a decade after Mohammed’s capture. Declassified CIA documents have already disclosed that agents waterboarded him 183 times.
“Whatever need there was for secrecy you’d think a decade would have cured,” he said Tuesday. After reading the partially redacted transcript, he said there was “so much blacked out” that it was hard to discern the significance of the lost prosecution motion.
Disclosure of the ruling itself is “beneficial,” Davis said, because it challenges “the perception that the government can do whatever the hell it wants. To the extent that the judge said, ‘ au contraire,’ there’s some value in it.”
In this case, because of the national security court being run by the Obama administration, some discovery will be shown to the accused Sept. 11 plotters’ attorneys, who have security clearances, but not the men being put on trial.
Human Rights Watch counterterrorism counsel Andrea Prasow, who has followed the proceedings from the start, called the substance disclosed Tuesday “breathtaking.”
“The over-classification is of course troubling,” she said. “But what I find more concerning is that the government believed all along that the defense had no right to the information.
“The defendants are on trial for their lives, and while they sit in their cells, forbidden from entering the courtroom, the prosecution tries to hide evidence from their lawyers. If you want to know what is wrong with the military commissions, read this transcript.”
Verbatim | From the secret session transcript
Army Col. James L. Pohl, the judge: “I’m not ruling on whether they [redacted]. I’m not ruling on whether [redacted]. I’m not ruling on whether [redacted]. I’m simply saying the information is discoverable and I will address the form at a later date.”
Verbatim | Why secret session?
Pohl, Aug. 19: “I make a specific finding that that closure is necessary to protect information, the disclosure of which could reasonably be expected to damage national security, including intelligence or law enforcement sources, methods or activities. It will be a relatively short session.”
Prosecutor Joanna Baltes, classification expert: “The United States Government has said it's classified. We provided the commission with a declaration explaining the harm to national security and why something was classified. That is not something that needs to be shared to defense counsel, and absent authority to the contrary we would decline to do so.”