9/11 judge OKs war court audio delays, censor at Guantanamo
By CAROL ROSENBERG | The Miami Herald | Published: December 12, 2012
MIAMI — The chief of the Guantanamo war court has ruled in favor of keeping a time delay on public viewing of the Sept. 11 death-penalty trial and of keeping a censor in his court to protect national security.
The American Civil Liberties Union challenged the 40-second delay, arguing that the Pentagon had transformed the courtroom at Camp Justice into a “censorship chamber” for the coming death penalty trials.
Spectators who watch the proceedings at the war court in Cuba sit in a soundproof room, watching the trial live but hearing the audio 40 seconds later. If a court security officer functioning as a censor deems what is being said is a national security secret, the audio is obscured by white noise.
Col. James L. Pohl, the judge, wrote in his five-page decision that he is “acutely aware” that he has “twin responsibilities of insuring the transparency of the proceeding while at the same instance preserving the interests of national security.”
But, he wrote, “the brief delay is the least intrusive and least disruptive method of meeting both responsibilities.”
The delay lets the security officer who sits to the right of the judge push a button to muffle any details that the trials might divulge of the detainees’ years of captivity in the CIA’s now-closed secret overseas prison network. All the men say they were tortured by the CIA using now-banned “enhanced interrogation techniques” — notably waterboarding — to extract confessions and other information.
The censor has done this twice this year, both times to stop the public from hearing defense lawyers, and both times in error.
The chief prosecutor, Brig. Gen. Mark Martins, has said confessions derived through torture or otherwise involuntarily will be excluded from the trial of five men accused of orchestrating, financing and training the 19 hijackers who killed nearly 3,000 people on Sept. 11, 2001.
Charged are alleged mastermind Khalid Sheikh Mohammed, 47, who told a Guantanamo panel after his transfer from CIA custody, and 183 rounds of waterboarding, that he devised the 9/11 attacks “from A to Z,” and four alleged conspirators. They are Yemenis Ramzi bin al-Shibh, 40, and Walid bin Attash, 34, described as Mohammed’s deputies; and two men accused of helping arrange the hijackers’ travel and United States finances, Saudi Mustafa al-Hawsawi, 44, and Pakistani Ammar al-Baluchi, 35, Mohammed’s nephew.
All are charged with war crimes to be heard by a jury of military officers, which can also order their execution.
The judge explained the security arrangements in a ruling and accompanying 20-page “protective order” ruling, which he also signed Dec. 6. Both were made public on a Defense Department website Tuesday evening after the Pentagon gave the intelligence agencies an opportunity to scrub them of information the public shouldn’t see.
In this instance, the judge’s rulings were released unredacted.
The ACLU said in a statement that the organization would seek further review of the ruling, but did not explain when or in which court.
“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,” said ACLU attorney Hina Shamsi, who argued the case at Guantanamo.
“The problem is not so much the audio delay, but the basis for it,” she said, calling it “the tool through which the government unconstitutionally prevents the public from hearing testimony about torture.”
An attorney advocating transparency on behalf of 14 news organization, including The Miami Herald, had opposed aspects of the security restrictions as well, including the 40-second delay, as overly broad. First Amendment attorney David Schulz argued that the judge had to make specific public findings of why national security might be at harm before shutting the public out of proceedings.
To that end, Judge Pohl wrote that prosecutors had given him secret affidavits from the Central Intelligence Agency, FBI and Department of Defense that justified the security arrangement. Those affidavits are under seal. Neither the defense attorneys nor the public can review them.
The protective order itself spells out that anything about their CIA custody is classified, including “their observations and experiences,” meaning the accused can’t talk about what happened to them at the so-called “dark sites” in open court.
The media attorney had argued that some information was already leaked or made public and the judge should allow the public to hear about secrets that have already been spilled. Judge Pohl did not respond to that argument directly but had said in open court he would defer to the government on what was properly classified.
The judge’s protective order did give one concession to defense attorneys: The creation of a Defense Security Officer, a government official with Top Secret clearances and understanding of CIA restrictions who can help the defense handle documents.
A court security officer twice this year took advantage of the 40-second delay to censor portions of legal arguments offered by military defense attorneys at pre-trial hearings in the 9/11 case. The censorship is achieved by replacing audio of the proceedings with white noise — plus cutting the video feed to spectators watching proceedings remotely at Guantanamo and special sites at U.S. military bases.
In each instance, a review found the censorship unfounded. In May, the censor replaced a portion of Air Force Capt. Michael Schwartz’s argument with white noise because the defense attorney for bin Attash mockingly referred to “the torture that my client was subjected to by the men and women wearing the big-boy pants down at the CIA.”
The Pentagon restored the remark to an unofficial court transcript five days later, a Pentagon spokesman said, at the request of the chief prosecutor who heard the remark live and realized it didn’t meet the standard for censorship.
More recently, on Oct. 17, Pohl ruled on the spot that the censor overreacted when he killed the sound and video feed to Navy Lt. Cmdr. Kevin Bogucki’s offering a hypothetical interrogation technique. Pohl had the audio and video restored for spectators and had Bogucki say out loud again what had been censored:
“Your Honor, if I beat you, I’m not providing you information. If I chain you to the ceiling, I’m not providing you information. I’m doing something to you.”
This was part of the defense attorneys’ now-failed bid to let the accused describe in open court what the CIA did to them before they got to Guantanamo in September 2006.
The newspaper groups that opposed the protective order called themselves “the press objectors.” Besides The Herald and its owners, The McClatchy Company, they included ABC Inc., The Associated Press, Bloomberg News, CBS Broadcasting Inc., Fox News Network, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, The Wall Street Journal and The Washington Post.