It’s no secret that I’m at Guantánamo this week to observe pre-trial motion hearings in the military commission case against Khalid Sheikh Mohammed and the four other alleged co-conspirators in the 9/11 attacks.
What is secret? According to U.S. authorities, everything the five defendants know, say or write–including about their time in CIA custody. It’s all “presumptively classified” Top Secret/Special Compartmented Information (TS/SCI). Everything. From torture to what they ate for breakfast.
According to a defense motion filed against “presumptive classification” (one of several motions to be addressed at Guantánamo this week), “If a prisoner says that he misses his family, this information is ‘born classified’ even though no original classification authority would or could ever classify it.”
Neither their U.S. lawyers (who have TS/SCI security clearance), nor anyone in the government may reveal it without exposing themselves to criminal liability under US law. If the defendants or lawyers begin speaking about any such topic at military commission proceedings, the authorities will cut the courtroom transmission (which has a 40-second broadcast delay) so that observers behind the glass wall dividing the commission room from the public gallery area, and anyone observing the video transmission at remote locations in the USA, cannot hear what was said.
In their motion, defense lawyers argue that “presumptive classification” is unconstitutional, an
example of over-classification and that it “uniquely cripples the defense function, as its vague boundaries systemically chill the exercise of professional discretion in a way that actual classification does not.”
Defense lawyers are urging the military judge overseeing the case, Colonel James Pohl, not to implement “presumptive classification” during the trial.
The government claims that “presumptive classification” is necessary, and in a pre-trial motion U.S. authorities assert that:
“Because the Accused were detained and interrogated in the CIA program, they were exposed to classified sources, methods and activities. Due to their exposure to classified information, the Accused are in a position to reveal this information publicly through their statements. Consequently any and all statements by the Accused are presumptively classified until a classification review can be completed.”
As Amnesty’s report notes, “Aside from the limited amount of information acknowledged by the US authorities, including that the CIA program existed, that ‘enhanced interrogation techniques’ were approved for use in the program, and that three detainees were subjected to ‘water-boarding,’ other information remains classified or has not been officially acknowledged.” The government’s motion continues:
“This classified information includes allegations involving (i) the location of detention facilities, (ii) the identity of any cooperating foreign governments, (iii) the identity of personnel involved in the capture, detention, transfer, or interrogation of detainees, (iv) interrogation techniques as applied to specific detainees, and (v) conditions of confinement.”
Such information, the government argues , “must be protected from disclosure in this military commission.”
However, the blanket policy of presumptive classification is inconsistent with the defendants’ right to a fair trial and seriously undermines the defendants’ ability to challenge the evidence against them.
Amnesty’s report further counters:
If these detainees have knowledge about detention conditions or interrogation techniques that violate the prohibitions against enforced disappearance and of torture and other cruel, inhuman or degrading treatment or punishment, it is only because the U.S. government itself forced that knowledge on them in the course of carrying out such violations of their rights. Allowing a government to, in effect, indefinitely and unilaterally keep secret the details of allegations of such human rights violations – indeed it has gone so far as to physically censor the voices of those who claim to have suffered the violations – in a manner that by purpose or effect deprives the person of access to an effective remedy and preserves the impunity of the perpetrators, is fundamentally inconsistent with international law.
At the Sunday press conference at Guantanamo, a reporter asked defense lawyers why it’s important for the 9/11 accused to be able to talk about their treatment in CIA custody. Army Captain Jason Wright, military defense counsel for Khalid Sheikh Mohammed, responded:
“Torture matters because America is better than this.”
It’s time for the United States government to do better. The Obama administration must respect human rights, abandon Guantánamo military commissions, prosecute the 9/11 defendants fairly in U.S. federal court, and ensure accountability for torture.
Find out what happens with “presumptive classification” – follow @ZekeJohnsonAi on Twitter for updates from this week’s pre-trial hearings at Guantánamo.