Journalism in the Public Interest

Blacked Out: Reading Between the Lines as Gitmo Lawyers Talk Torture

A view of the first military commissions courtroom at Guantanamo. The current courtroom is nearby, but cannot be photographed. (Cora Currier/ProPublica)

A recent court hearing at Guantanamo dealt with national security information so secret that the accused was not even allowed in the room: the first completely closed session of the military commission trials under President Obama.

It was the last day in a week of pre-trial hearings in the case of Abd al Rahim al Nashiri, alleged mastermind of the bombing of the U.S.S. Cole. Government prosecutors had filed a motion that didn’t even have an unclassified title. In a press conference immediately afterward, reporters were told only that it had lasted 78 minutes.

The commission has now released a transcript of the hearing – but one so heavily redacted that divining the focus of the hearing is like filling out crossword puzzle with far too few clues:


But the transcript reveals parts of a lengthy discussion of the CIA’s secret prison program, in which Nashiri was held for four years and subjected to waterboarding and mock executions.

As for what specifically the government asked for in its motion, that’s classified. A government lawyer says only that “the specific nature of the request, the reasons why, and the national security reasons are extremely sensitive.”

The judge’s framing of the problem is also blacked out:


In 2006, Nashiri was transferred to military custody at Gitmo. Nashiri’s lawyers have long argued that his torture and years of confinement outside the law have tainted the capital case against him.

In the transcript, the government says it will turn over information to the defense about Nashiri’s time in CIA custody – including photos of him, relevant portions of legal memos, and summaries of CIA reports:


In response, a defense lawyer says he’s unsatisfied with what the government has given them, but much of his argument is redacted:


He then cites the “real truth,” which is followed by a big, black block:


There have been some official disclosures about the black sites, which Obama ordered shuttered upon entering office. But many details of the program remain classified. That limits what Nashiri himself can hear in the case, and what the defense team has access to, even though it has security clearance.

The defense lawyer notes he cannot ask Nashiri about the government’s materials, because so much of it is classified:


(The government prosecutor responds that the defense is “free to discuss” Nashiri’s “recollection” of his treatment. She says, "I am well aware of the facts in this case," and that there are legitimate national security reasons behind any decision to hold back information.)

Reached by ProPublica, the defense lawyer, Rick Kammen, said he could not elaborate at all beyond what was in the transcript.

The judge, James Pohl, had authorized the closed session over the objections of the defense, which claimed that Nashiri’s exclusion from the courtroom that day violated a litany of laws and rights. In arguing that the session needed to be secret, government prosecutors repeatedly pointed to cases in federal court where defendants had been excluded along with the public.

The judge took pains to specify that this was a pre-trial hearing that did not deal with evidence the government planned to use in its main case.

One thing the transcript does make clear is that the same issue – whatever it is – has come up in the trial of the five men accused of plotting the 9/11 attacks. They were also held in CIA custody. Pohl said he would wait to rule until after he hears arguments in that case.

Makes you wonder how deep the war crimes (which we’re not going to prosecute) must go when, just prior to a huge redacted section, is “Beyond waterboarding.”  If I had to guess (apparently, we do), the contents of that paragraph are likely not about how everybody got together to watch cartoons and share a laugh.

Let me start by saying this post is from someone who at the age of 18 served in Vietnam as a United States Marine.  What I find is significantly lost in all this is; at the age of 18 as a young United States Marine serving my country, we were advised we needed to always be in some form of uniform representing our country.  AND very important, we needed to carry our GENEVA CONVENTION I.D. card. That card represented we are bound by the standard treatment of prisioners in a time of war and if captured, as prisioners representing a country.  The terrorist are terrorist. They are not Citizens of the U.S. and are not military representatives protected by the United States Constitution nor protected by the GENEVA CONVENTION of rights of PRISIONERS OF WAR. They deserve to be treated like terrorist. If that includes waterboarding, they should have considerd that before becoming a terroist. And if it has not been figured out before, I will offer a hint…if you bring them into the US they may need to be subject to the laws protecting citizens here.  Laws they do not deserve to be protected by! So keeping them at GITMO will continue to be in vogue!

Ken, what is so difficult about the concept that they are ACCUSED, not CONVICTED. You keep calling them terrorists (well, terrorist, or even terroist). They are NOT terrorists until they have been convicted.

Or do you have information on all those prisoners that no one else has?

Ken, how we treat our enemies says more about us than it does about them.  We are what we do.  So if we torture via simulated drowning, simulated executions, sleep deprivation, etc, if we do the things we prosecute others for, then we are not only gross hypocrites but criminals indicted and identified by our own laws.

Ken, I disagree on a simple basis:  The Constitutionally-protected rights are those we claim are human rights, “inalienable,” as some might prefer.  If they government merely extends them to those who pass some standard of their choosing, and can rescind them when they please or merely decide a person doesn’t “deserve” them, then they’re not rights.  They can be taken from anybody who’s inconvenient, in the future.

We actually kind of had an entire war about that, as some students of history might recall.  There was a big to-do over whether certain people could be deprived of rights and be considered property, because they allegedly weren’t grand enough to deserve any rights.  That side lost.  It was in all the papers.

Plus, if we take their tactics, simply because they don’t explicitly violate the letter of a treaty, then they won.  They proved that we’re the Great Satan or whatever the term in circulation might be.  We’re the bad guys to be fought for the protection of the world.

And that’s not a good look for us.

So Ken, how did you treat any prisoners that were assigned to you while in Viet Nam.  Or maybe you did not bother to capture them and opted out for the simpler solution.  Were not VC considered terrorists.  Your present attitude speaks loudly about your probable attitudes back then.  As you get older you are supposed to get wiser.  How did it feel to get snookered into fighting for the corrupt puppet government that we set up over there?  Today we are know much, much more as to the reasons we were over there and very little of it is to the good.

Anthony Delyea

June 28, 2013, 8:17 a.m.

I too was a Marine. You were told out of uniform makes you a spy. Spies may be executed, they cannot be tortured.

So I do not misunderstand. a terrorist is a person who is not part of a military organization who attacks others. Kind of like our CiA agents only not as bad because they do not torture their captives.

Thanks for the laughs. You should have stayed in the Corp the CIA is always looking for a few not so good men.

Luther Garcia

June 28, 2013, 8:29 a.m.

Using your analysis the Germans had every right to torture members of the French resistance during world war 2 because they were out of uniform and committed acts of sabotage against military and civilian targets.  Likewise, any member of the IRA in Northern Ireland was a terrorist and should have been tortured and presented to a kangaroo court (sorry for the insult, kangaroos) where they can be convicted on third hand hearsay by people who collected sizable rewards for fingering them.
Try not to be an idiot.

Ken,you are an idiot.Human rights are for the human race which actually means the population of the entire planet earth,not just citizens of the USA.And if you care to look up the definition af terrorism you will find that the USA is the real terrorists,being a US marine that means according to your own opinion you have no rights.

This article is part of an ongoing investigation:

The Detention Dilemma

The government remains uncertain what to do with its prisoners at Guantanamo Bay.

Get Updates

Our Hottest Stories