Attorneys joust over right of public to vanished, open-court Guantánamo testimony

U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary.
U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary. ASSOCIATED PRESS

Attorneys for news organizations and the alleged 9/11 plotters asked the trial judge Monday to make public the full transcript of an uncontested open-court hearing that was retroactively censored by security officials.

The chief war court prosecutor, Army Brig. Gen. Mark Martins, urged the judge, Col. James L. Pohl, to defer to detention center secrecy on testimony surrounding “an unpopular order” involving female guards, a hot-button issue that has enraged Pentagon brass. He said there are exceptions when the U.S. government should be allowed “after-the-utterance redaction.”

“The government is trying to put the genie back in the bottle,” said First Amendment attorney David Schulz, arguing that the Pentagon had a duty to release the full transcript of testimony of an Oct. 30 hearing, unless prosecutors proved to the judge that specific discrete information needed to be protected. It went on for five hours in open court without objection

At issue was a behind-the-scenes decision to black out large portions of a 379-page transcript that included testimony from two soldiers who work at Guantánamo’s most clandestine prison, called Camp 7.

Prosecutor: Original scrub blacked out 18 percent. Update redacted just 6.2 percent of 45,000-word court transcript.

Initially, the Pentagon withheld full pages of testimony — questions from the judge, affirmative answers from witnesses plus wide swaths of information, totaling 18 percent of what the public heard in court about staffing and procedures at the prison. After a protest, security personnel re-scrubbed it and restored about two-thirds, leaving the redacted portion at 6.2 percent, said Martins.

In the original redaction, censors removed the “one fingertip” measure for testing the tightness of handcuffs. A subsequent review restored it.

For his part, Pohl seemed troubled by the suggestion that he was being asked to approve the release of classified information. Left unclear was whether the blacked out information was actually marked classified or considered protected. A defense attorney asked to tackle that in a future classified hearing.

But Martins argued that the overall commander of the prison that houses the five men accused of hatching the Sept. 11, 2001, attacks — not the judge — has the authority to decide what can be retroactively censored at the war court. The commander, Navy Rear Adm. Peter J. Clarke, justified the redactions in a secret declaration that the media attorney was forbidden to see.

Martins quoted the commander as saying, in his secret declaration, that news reports and public observations of open-court testimony are not the same as a transcript that enemies of the United States or the prison could exploit.

Whether it was called a transcript or a hamburger, the fact of the matter is it is a judicial record.

First Amendment attorney Dave Schulz

The subplot is that the prison wants Pohl to lift his year-old temporary restraining order that prohibits female guards from handling the five men accused of the Sept. 11 attacks when guards move the accused terrorists between their prison, court and legal meetings. Pohl has said he accepts the prisoners’ objection is a sincerely held religious belief. The order outraged members of Congress and senior Pentagon brass. The prosecutors and prison warden object to the prohibition of female guards’ handling of the captives, alternately arguing it’s a hardship for the prison and to do otherwise is sexist.

The lawyer for the alleged 9/11 mastermind reminded the judge in court Monday that Khalid Sheik Mohammed was subjected to “sexualized torture,” and his interpretation of Islam forbids him being touched by women other than family members.

Testimony on Oct. 30 discussed earlier staffing patterns at Camp 7, a prison holding Mohammed and 14 other former CIA “black site” detainees that’s so secret even its location and constructions cost are classified.

Martins argued the transcripts created by war court employees who hear it on a 40-second delay, just like the public, are not judicial records.

Commander of the prison camps defended the censorship in a classified filing neither the media attorney nor the public could see.

“Whether it was called a transcript or a hamburger, the fact of the matter is it is a judicial record,” Schulz argued. “It is a verbatim transcript of the proceeding.”

Defense attorney Jay Connell told Pohl that transcripts are required by the regulations of the Secretary of Defense, and typically posted in their entirety on a Pentagon website. What happened on Oct. 30 he said, was “not a leak” but “an authorized public disclosure of information.”

Pohl, who serves as chief of the Guantánamo war court judiciary, repeatedly questioned why he should have to decide the issue. He said he has “zero role” on what goes on the Pentagon’s war court website. Schulz replied that it happened in open court. “There can’t be a procedure that says the government can rewrite history or conceal things from the public after the fact in this case.”

Martins argued that typically the judge, with no classification authority, has to let the government decide what’s classified. But in this narrow issue, the Oct. 30 transcript, the prosecutor said the judge has to rule, because the media filed a protest using a proper war court procedure.

In other news:

▪ Mohammed’s attorney, David Nevin announced in open court that he would be filing a motion to recuse the judge and prosecution over a “secret order” the judge issued before arriving at Guantánamo on Feb. 13. It has already been disclosed in court that the judge ruled on a classified 2013 government motion that’s so secret the public cannot know its name.

“One of the problems with the Star Chamber is that it was done in secret,” Nevin told the judge, reminding that the American Revolution was waged “to put a stop to that.”

▪ The judge said he would hear testimony from alleged Sept. 11 plot deputy Ramzi bin al Shibh, who has complained for years that the guard force at Camp 7 intentionally causes vibrations and noises to disrupt his sleep, retraumatizing him from CIA sleep deprivation.

Pohl ordered the guard force to stop it, if they are doing it. Bin al Shibh attorney James Harrington has said it continues and wants to take testimony from two other unidentified detainees and soon-departing Camp 7 personnel. The judge said Bin al Shibh can go first, on Wednesday, and he’ll likely allow more testimony at the next hearings, now scheduled for April.

Carol Rosenberg: 305-376-3179, @carolrosenberg

Media challenging

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.

Original documents

Read the initial legal motions from the Media and Defense attorneys and the Prosecution reply.