9/11 trial: Any mention of torture is classified, military judge rules

In a significant victory for government prosecutors, the military judge presiding over the trial of accused 911 mastermind Khalid Sheikh Mohammed has granted a government request to treat as classified any testimony or discussion about the alleged torture of Mr. Mohammed and others during CIA interrogations.

The judge, US Army Col. James Pohl, issued a broad protective order barring the disclosure of any information deemed by the government to be classified. The ruling was handed down Dec. 6 and was made public on the court’s website on Wednesday.

Off limits at the military commission trial at the US Naval Base at Guantánamo Bay are any details surrounding the defendants’ capture, detention, and alleged torture by the CIA. It includes “the enhanced interrogation techniques that were applied to an accused … including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques.”

The judge added that “without limitation, observations and experiences of an accused” would also be treated as classified information as they emerge from a defendant’s mouth.

Defense lawyers had challenged the government’s expansive assertion of authority to designate certain subjects as protected secrets in the case, saying it was improper for prosecutors to attempt to censor Mohammed and his four co-defendants from discussing their own personal observations of things they involuntarily endured during years of CIA detention and interrogations.

Defense lawyers and lawyers with the American Civil Liberties Union argued that the government was exceeding its authority by declaring that anything Mohammed or his co-defendants might say would involve the disclosure of sensitive CIA sources and methods.

“We are profoundly disappointed by the military judge’s decision, which doesn’t even address the serious First Amendment issues at stake here,” said Hina Shamsi, director of the ACLU’s national security project.

“The government wanted to ensure that the American public would never hear the defendants’ accounts of illegal CIA torture, rendition, and detention,” she said in a statement. “The military judge has gone along with that shameful plan.”

Ms. Shamsi said the ACLU would attempt to appeal the ruling.

“For now, the most important terrorism trial of our time will be organized around judicially approved censorship of the defendants’ own thoughts, experiences, and memories of CIA torture,” she said. “The decision undermines the government’s claim that the military commission system is transparent.”

Although some details of their treatment have been made public, there has never been a full public accounting of what was done to certain terror suspects, including Mohammed, in the name of protecting US national security.

Officials have acknowledged that Mohammed was subjected to a particularly brutal interrogation technique known as waterboarding. Reports are that he was subjected to the technique 183 times.

Human rights advocates say waterboarding is torture. The US government says it did not and does not engage in torture.

The issue is important in Mohammed’s military commission trial because the jury that decides the case must be able to assess the credibility and veracity of the government’s evidence.

Some of the evidence may have been obtained during coercive interrogations. But if any mention of interrogations is barred, jurors may not be in a position to make a full assessment of certain pieces of evidence.

Judge Pohl defended his protective order, saying his ruling did not decide pending issues of relevance, materiality, or admissibility.

“The … protective order neither expands the traditional rules of discovery nor addresses what use, if any, can be made of the disclosed information during the course of a trial,” he wrote.

“Rather, it provides the framework for defense counsel to obtain and assess classified information while at the same instance permitting the government to preserve information relevant to our national security.”

The judge also approved the continued use of a 40-second delay to the courtroom audio made available to members of the media and others viewing the trial behind thick, soundproof glass.

The 40-second delay gives government censors time to cut off any audio broadcast of the trial in the event that classified information is uttered or otherwise revealed in open court.

The order also gives censors the authority to cut off the audio when they suspect classified information is about to be revealed.

The protective order says in part: “The broadcast may be suspended whenever it is reasonably believed that any person in the courtroom has made or is about to make a statement or offer testimony disclosing classified information.”

Judge Pohl acknowledged that members of the media and the ACLU object to the delayed audio as an unwarranted closing of the court.

He said he was “acutely aware of [his] twin responsibilities of insuring the transparency of the proceeding while at the same instance preserving the interests of national security.”

Pohl said the “brief delay is the least intrusive and least disruptive method of meeting both responsibilities.”

Shamsi disagrees.

“The problem is not so much the audio delay, but the basis for it,” she said. “The delay is the tool through which the government unconstitutionally prevents the public from hearing testimony about torture.”