Update, Feb. 1, 2013: When a pretrial hearing for Khalid Sheikh Mohammed and four other alleged 9/11 plotters began this week, an unknown censor shut off the audio feed from the courtroom even though no classified information was being discussed. Even the judge was caught by surprise, and he has now mandated that no one besides the security officer present in court may suspend broadcasting of the court proceedings, The New York Times reported.
Can the government declare anything a Guantanamo detainee does or
says automatically classified?
That’s the question posed by two challenges to a government order declaring “any
and all statements” by the five detainees allegedly behind the 9/11 attacks “presumptively
classified.” That includes their own accounts of their treatment, and even torture,
at the hands of the U.S. government.
The government made that argument this spring at the start of the
military commission trials of Khalid Sheikh Mohammed and four others. The
government says the defendants’ accounts, if made public without review by a government
authority, could reveal details of the CIA’s detention and interrogation efforts.
Of course, much information about the programs—including
torture of detainees—has long been public. The CIA’s so-called black-site
prisons were acknowledged nearly
six years ago by then-President Bush. More details about the program were released by President
Obama in 2009.
The “presumptive classification” order extends to both detainees’
testimony and their discussions with their lawyers. In other words, anything
said by a detainee, whether in court or to their counsel, will first need
censors’ stamp of approval before it can become public.
The American Civil Liberties Union, news outlets, and one of the 9/11
defendants’ lawyers have all challenged aspects of the order. A Gitmo
commission judge may consider their arguments at hearings next month.
Here’s exactly what the government says is still classified, from
the order it proposed to the military commission in April:
By extension, the government argues, anything said by the accused must
be presumed classified, because they were “exposed” to classified information during
their detention:
The government’s order
mandates that the court proceedings, which are transmitted via closed circuit
TV to media and other observers in viewing rooms in the U.S., get a
forty-second delay to allow for the blotting out of any sensitive information
revealed by the defendants. If something censored in the broadcast is later
deemed unclassified, it is restored on the court transcript. This is how the
arraignment in this case proceeded back in May. At one point, censors
blocked a defense lawyer’s comment that one of the defendants was
tortured, only to have it later reinstated for the record.
The ACLU filed a brief in May saying that the government’s order
of presumptive classification and the forty-second delay violate the public’s
right of access to the trial. The ACLU’s
motion takes issue with the idea that the government has declared
detainees’ “personal knowledge of their detention and treatment in U.S.
custody” classified. Their exposure to classified information was forced
upon them, the ACLU states, in CIA detention and interrogation programs that
are now outlawed.
The ACLU argues that an
executive order on classification signed by Obama in 2009
says in part that, in order to be properly classified, information must be
“under the control of the United States Government.” The ACLU’s brief challenges
whether that authority could be extended “categorically to human beings under the government’s control.” [emphasis
in original]. The ACLU also argues
that the detainees were not in any kind of contractual relationship which would
make them liable for the classified information they were exposed to.
In a response
to the ACLU’s brief, the government reiterated that certain
elements of the CIA program are still properly classified and that this is the
most practical way to handle that sensitive information. The government claims that the forty-second delay is a narrow
measure that satisfies the public’s right of access, pointing to coverage of the arraignment in
May. Eliminating it, as the ACLU requests, would force the government to “predict
the accused’s possible future behavior.” (The ACLU counters that
any information a detainee might reveal wouldn’t require government
confirmation, and would be the same as previous accounts of their detention in
the press and Red Cross reports.)
A Pentagon spokesman declined to comment on the ACLU’s or other
challenges to the order.
Fourteen media organizations, including the New York Times, the
Wall Street Journal, and Fox, also filed
an objection to the government’s protective order. Last
week the same group filed
a brief opposing the closing of certain proceedings in the case against Abd al Rahim al Nashiri, the
alleged mastermind of the 2000 attack on the U.S.S. Cole. That case was
governed by a similar protective order, signed by the same judge presiding over
the 9/11 case, James Pohl.
That’s part of what makes it unlikely Pohl will be open to rescinding the
government’s order, says Wells Bennett, a visiting fellow in national security
at the Brookings Institution and a contributor to the widely read Lawfare
blog. “Presumptive classification has already been in use in the
Guantanamo trials. For Pohl to turn around, at this point, would be
bucking the trend,” says Bennett.
Hina Shamsi, the ACLU’s lead lawyer on the case, views the
public access issue as critical to the public perception of the military commission
system, which, she says, “will not be seen as legitimate if they are organized
around judicially-approved censorship of detainees’ own accounts of their
torture in U.S. custody.”
Military commissions were temporarily suspended when Obama
took office, and revamped later in 2009 when Congress passed a new Military
Commissions Act strengthening defendants’ rights. The 9/11 case is seen as a
high-profile test of the system, which has obtained four
convictions under Obama so far.
The Obama administration originally planned to try the five in
civilian courts but transferred the trial to the military commission last year after
Congress made it all
but impossible to bring Guantanamo detainees into the U.S.
A separate
challenge to the government’s stance was filed in April by James Connell,
the civilian Defense Department lawyer representing one of the 9/11 defendants,
Ammar Al-Baluchi (also
known as Abd al Aziz Ali). The motion challenges the
very notion of presumptive classification.
Anyone involved in the case has to sign a “memorandum
of understanding” indicating their responsibility for access
to classified information, as defined in the protective order. The defense
needs to give warning when they plan to use classified information, and to
submit any information they want unclassified to a government-appointed
security officer for review.
In practice, according to Connell, this means lawyers have to get approval
to use even their client’s birthdate, if the source for it is the detainee’s—presumptively
classified—statement. The resulting difficulties for the defense, the
motion maintains, violate attorney-client privilege and Sixth Amendment
protections.
Connell also claims that presumptive classification violates
procedures laid out in Obama’s executive
order and elsewhere. According to those standards, information can only
be classified after an evaluation that its relevance to national security
outweighs the public’s right to information. Declaring detainees’ potential
statements preemptively secret, Connell maintains, is therefore too broad to be
considered an “original classification.” (Only nuclear information is “born
classified,” under a World War II-era law).
Connell’s motion
also chronicles how presumptive classification of detainees’
statements was gradually established as the norm in cases involving Guantanamo
detainees, in both military commissions and federal court, but doesn’t have
much precedent outside Gitmo.
The government’s
response to Connell’s motion, filed in May, echoes its justification for
the 40-second broadcast delay. The response says that the Guantanamo procedures don’t make anything
classified that shouldn’t be. Presumptive classification isn’t a “new category”
of classified material, it argues, but rather, “simply
is the control mechanism,” and the least intrusive process possible by
which to separate properly classified information from unclassified.
