Monitor Outside Gitmo Tribunal Has Power to Censor Proceedings Without Judge’s Knowledge
The Guantanamo war court was deciding whether to go into a closed session yesterday. David Nevin, who is representing 9/11 suspect, Khalid Sheikh Mohammed, was speaking in court about the decision to argue some of a motion involving evidence of CIA black prison sites. The audio feed went off for three minutes and court was off-record for about three minutes.
Judge Col. James Pohl noted, “The 40-second delay was initiated, not by me. I’m curious as to why.” Nevin had simply been reading the caption to an unclassified motion. “If you don’t feel we can discuss this now, let me know, but I’m just trying to figure out.” The government wanted to explain what happened to the judge in a secret session.
“I want to address this too because I want — if some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because I, there is no classification on it, then we are going to have a little meeting about who turns that light on or off,” Pohl responded.
Nevin addressed the court, “I would like to know who has the permission to turn that light on and off, who is listening to this, who is controlling these proceedings, or controlling that aspect of these proceedings.” He added, “I was under the impression that the [court security officer] was, commanded that light in this process.”
Cheryl Bormann, the defense counsel for Walid bin Attash (9/11 suspect), wished to state for the record that Nevin has been repeating the name of a defense motion but she decline to say it for fear of setting off the censor again. Navy Commander Walter Ruiz, who is representing Mustafa al-Hawsawi (9/11 suspect), told the judge, “The main concern is that moving forward from this point forward we know there is another body or party who is in control of this proceeding in turning that light on and off.”
“Before we proceed any further,” he added, “We can only assume that maybe they are monitoring additional communications, perhaps when we are at counsel table. We know we have green lights that have the ability to record. We think this is an answer and question we have to have precedent to proceeding with this commission.” (Note: It is not unreasonable for Ruiz to be suspicious. He challenged Rear Admiral David B. Woods when he was prison commander and authorized inspections of prisoner mail, including communications with attorneys.)
The government refused to provide an explanation in open court. They convinced the judge to allow them to explain in a secret session and then, maybe, the court would go on record during Tuesday’s session.
This morning, the press pool covering proceedings was under the impression there would be an explanation from a witness of what had happened. But, to the dismay of those covering the proceedings, reporters like Jason Leopold reported there would be no testimony because the judge did not know who to call to explain the technology in his courtroom. The judge even asked, “What technology is being used in this courtroom?”
The government, according to the Miami Herald‘s Carol Rosenberg, revealed an original classification authority (OCA) reviewed the feed. What that suggests is someone from or affiliated with the CIA can press a button and censor the proceedings at any moment they think sensitive information is about to be revealed. That person does not have to be in the courtroom nor does that person have to inform the judge ahead of time that he or she intends to cut the feed when certain information, including unclassified information, is raised in open court.
Daphne Eviatar of Huffington Post reported Nevin stood up to say “it’s important that he be able to turn off his microphone” so no one, a court reporter or some unnamed government security officer, can hear “confidential conversations with his client. As KSM’s attorney, he’s ethically required to maintain his client’s confidentiality.” Bormann echoed the concerns, “Is the audio feed to the court reporter recording her conversations with her client, Walid bin Attash? If so, it’s a violation of court rules as well as her ethical obligations.”
In December, the military judge ruled statements involving reference to torture or abuse could be censored. The ACLU, Miami Herald, ABC, Inc., Associated Press, Bloomberg News, CBS Broadcasting, Inc., Fox News Network, The McClatchy Company, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company. Wall Street Journal, and the Washington Post all were opposed it as an “unwarranted closure of the court.”
The ACLU’s National Security Program Director, Hina Shamsi, contended the government wanted this ability to censor so accounts of “illegal CIA torture, rendition and detention” were not heard by the press or public. Shamsi found it shameful that “the most important terrorism trial of our time” was going to “be organized around judicially approved censorship of the defendants’ own thoughts, experiences and memories of CIA torture.” But, as this episode shows, not only does the referencing of CIA secret programs already in unclassified motions have the potential to be censored but the judge may not even approve the censorship. Not only will the government block the 9/11 suspects on trial from describing their experiences in US prisons but the government will also claim the authority to censor defense lawyers who are talking aspects already publicly known.
In the aftermath of this display of secrecy culture, the motion involving CIA black sites has been postponed until February. The defense wants evidence of prisons where the 9/11 suspects were held to be preserved. The attorneys contend the structures, designs and sizes of buildings where they were confined may have had an effect on whether they provided statements to interrogators voluntarily or involuntarily.
…The size of the room, the physical condition of the areas in which people were held before the interrogations, the location within the building in which they were held, the absence of light and the construction and design of areas of the bu ilding other than conf inement cells are highly relevant to the mental state and have all been cons idered as part of the totality of circumstances surrounding statements that render them involuntary…
Finally, in more significant news on Guantanamo Bay, President Barack Obama really does not plan to close the prison while he is President of the United States. Josh Gerstein of POLITICO reported, “The State Department has reassigned its top diplomat charged with emptying out the prison for terror suspects at Guantanamo Bay and effectively shuttered the office responsible for handling that issue.” Ambassador Daniel Fried, who was in charge of “resettling Guantanamo Bay prisoners” will now be in charge of coordinating the department’s sanctions policy (which will involve facilitating policies that starve Iranian children).
There are eighty-six prisoners in Guantanamo who have been cleared for release by a senior-level task force authorized by Obama, which consisted of “intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community.” But what Obama is telling them by reassigning its “top diplomat”—on top of signing an intelligence authorization bill last year that made it even harder to close the facility)—is that these people who are completely innocent should not hope that they will be going home any time soon.
Though they may have been notified that Obama’s task force had decided there was no reason to keep them in detention and they would soon be freed, there is no reason to have faith that Obama will take the action necessary to shut down the ongoing human rights abomination that is the Guantanamo Bay prison. Moreover, the second-class legal justice system for charging people suspected of committing crimes is wholly dysfunctional and the military commission is making it up as plods along at the speed of smell.
This monstrous creation of the national security state—both the detention facility and crafted legal system—intrudes upon lawyers’ communications with clients, seeks to control the thoughts and experiences of prisoners, censors proceedings without permission from the judge and holds innocent people in indefinite detention depriving them of any hope of seeing their family or home again. It is worse than totalitarianism because it masquerades as the work of individuals committed to transparency, justice and fairness while at the same time consistently employing measures befitting a dictatorship.