[UPDATE]: Testimony at the 9/11 military tribunal trial at Guantanamo Bay will be subject to censorship, according to court documents released yesterday.
Judge Col. James Pohl ruled last week that the testimony of the defendants, including alleged 9/11 mastermind Khalid Shaikh Mohammed, could contain information that will compromise its War on Terror.
Pohl will allow a forty-second audio-delay — for the media and other observers — to remain in place, and security officers will have the authority to muffle out any testimony they deem to be “classified.”
“The Commission is acutely aware of its twin responsibilities of insuring the transparency
of the proceeding while at the same instance preserving the interests of national security,” Pohl wrote in his decision released yesterday. “The brief delay is the least intrusive and least disruptive method of meeting both responsibilities.”
The ACLU and a coalition of 14 major news organizations challenged the government’s request to censor testimony from Mohammed and the other alleged perpetrators. The government filed its protective order amid concerns that the defendants might reveal information about their time at Guantanamo that could be detrimental to national security.
“We’re profoundly disappointed by the military judge’s decision, which didn’t even address the serious First Amendment issues at stake here,” Hina Shamsi, director of the ACLU’s National Security Project, said in a release. “The government wanted to ensure that the American public would never hear the defendants’ accounts of illegal CIA torture, rendition and detention, and the military judge has gone along with that shameful plan.”
The ACLU argued at a pre-trial hearing in October that the public already has abundant access to detailed accounts of the various torture tactics used on the Guantanamo Bay prisoners.
“The decision undermines the government’s claim that the military commission system is transparent and deals a grave blow to its legitimacy,” Shamsi said.
[ORIGINAL]: The military tribunal — where alleged 9-11 master-mind Khalid Shaikh Mohammed and four other alleged 9-11conspirators will be tried — is expected to rule at a pre-trial hearing today on the government’s request to censor testimony.
The government filed the motion back in April, requesting that the court implement a 40-second tape-delay in the audio-feed from which news reporters and select observers will listen to the proceedings. It argues that the tape delay will ensure that classified information, regarding the CIA’s “enhanced interrogation” program at Guantanamo Bay, is not released to the public.
The ACLU and a coalition of 14 media organizations, including The New York Times, The Washington Post and Reuters, have filed separate motions to block the censorship.
Anytime the defendants mention their experiences in detainment, the 40-second delay will allow the court to mute the testimony. In its motion, the ACLU argued that the censorship was pointless because there’s already tons of information available to the public that details specifically what the now illegal interrogation program consisted of.
“That delay renders the proceedings presumptively closed by withholding from the public, media, and observers, at the press of a button, any access to detainees’ personal accounts of their detention and mistreatment,” the motion states.
The ACLU cites, among many sources, a 2005 report published by the International Committee of the Red Cross, in which Mohammed and the four other defendants describe how they’ve been treated while in U.S. custody. The report gives detailed information about the more brutal torture techniques used on terror suspects including sleep deprivation, prolonged nudity, beatings, forced shavings and water-boarding.
The government argues that even though classified information has leaked to the public, it’s still classified. It also argues that there’s no way to know what the defendants might reveal that could jeopardize the country’s fight against terror.
“Because the Government cannot predict whether the Accused intends to disclose classified information at [the] arraignment or during subsequent public proceedings in this case, the Government requests that the Military Judge immediately implement the protective measures set forth in the proposed Protective Order,” according to the government’s motion.
According to First Amendment precedent, the government bears the burden of proving that the potential release of classified information during the trial will cause a serious threat to National Security. The ACLU argues that many of the interrogation techniques are no longer legal and already well-known, so testimony detailing that information couldn’t be considered a threat to the country’s counter-terrorism operations.
The ACLU requests that if the court does accept the government’s motion for an audio-delay, uncensored transcripts should be made available to the public and the media in an expedient manner. Hina Shamsi, director of the ACLU’s National Security Project, argues that such a restraint of First Amendment rights only serves to further undermine the credibility of military tribunals.
The Obama administration originally called for Mohammed to be tried in Manhattan Federal Court, but heavy backlash and costly security measures, led to the decision to move the trial to Guantanamo Bay. Many critics have called into question the fairness of military tribunals.
“There is an ongoing public debate about the fairness and transparency of the Guantanamo military commissions, and if the government succeeds in imposing its desired censorship regime, the commissions will certainly not be seen as legitimate,” Shamsi said in a release.