ACLU seeks public access to 9/11 trial at Guantánamo, secret testimony

The American people should be allowed to hear the five accused 9/11 conspirators describe what the CIA did to them in secret overseas prisons, the American Civil Liberties Union said in a motion filed at the Guantánamo war court late Wednesday.

“The eyes of the world are on this military commission,” the civil liberties group wrote in the 32-page motion. It was posted on the war court web site uncensored and included graphic references to water torture from a leaked International Red Cross report.

At issue is the war court system that employs a 40-second delay of the proceedings, time enough to let an intelligence official hit a white noise button if any of the men describe what CIA agents did to them after their capture in Pakistan in 2002 and 2003 and before their arrival at Guantánamo in September 2006.

The ACLU called the practice censorship. And said it was premised on “a chillingly Orwellian claim” that the accused “must be gagged lest he reveal his knowledge of what the government did to him.”

A court security officer used the white noise at an earlier, aborted effort to put the five men on trial for the terror attacks in 2008 and 2009.

It was not immediately clear whether the war court judge, Army Col. James L. Pohl, would rule on the motion before Saturday’s arraignment of accused Sept. 11 architect Khalid Sheik Mohammed and four other Guantánamo captives.

The ACLU’s executive director, Anthony Romero, said Thursday morning that his organization’s National Security director, Hina Shamsi, was seeking to join a Pentagon flight to Guantánamo on Friday in a bid to argue the point to Pohl — before the men are formally charged at Camp Justice at the U.S. Navy base at Guantánamo Bay on Saturday.

The Pentagon had no immediate comment. “The judge will decide whether the merits of their complaint have standing,” said Army Lt. Col. Todd Breasseale.

The ACLU lawyers also wrote that the 9/11 accused only obtained information about the CIA’s secret prison network and techniques “by virtue of the government forcing it upon them.”

They added that the government already had declassified portions of an investigation of the CIA’s own inspector general that had found agents subjected their captive to abusive treatment, and that it was in the public’s interest to hear the descriptions from the captives’ own lips.

All five face a death penalty trial by military commission at Guantánamo as the alleged organizers, funders and trainers of the 19 hijackers who commandeered four passenger aircraft on Sept. 11, 2001 and flew them into the World Trade Center, Pentagon and a Pennsylvania field, killingly nearly 3,000 people.

The brief included an affidavit from a scholar of military commissions who noted that past American tribunals were open, although held at remote locations that made it largely impossible for the public to see them.

Rather than presume information that comes from the mouths of former CIA captives is classified, the ACLU lawyers wrote, the judge is obliged to review each statement beforehand and “make factual findings on the record before permitting any national-security-related closure.”

The argument echoes one made last month to Pohl by a First Amendment lawyer at Guantánamo in the case of another waterboarded captive, Abd al Rahim al Nashiri, accused of orchestrating al Qaida’s October 2000 bombing of the USS Cole warship off Aden, Yemen.

Ten U.S. news organizations sought to challenge plans to have Nashiri testify in a closed pretrial hearing about his CIA treatment during overseas interrogation.

The judge did not rule on the issue at the hearing because Nashiri was not called to testify.