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Orders Classifying ‘Observations & Experiences’ of Guantanamo Prisoners Formerly Held by CIA Are Lifted

While the military commission’s ruling has not been made public, defense attorney for Guantanamo prisoner Ammar al Baluchi announced that “several orders” had been issued in the 9/11 case which “lift the provision classifying the ‘observations and experiences’ of defendants formerly held by the CIA.”

James Connell explained that CIA information remains classified, but “the military commission acknowledged that it had limited authority to control defendants’ thoughts and memories.”

He added, “This ruling is an important step forward in accountability for torture. The real question is whether the prison will allow the prisoners to communicate with foreign government officials, medical care providers, human rights authorities, and media.”

Defense attorneys for Guantanamo defendants in the 9/11 case have been challenging the US government’s commitment to classifying the thoughts, memories and statements of former CIA captives in order to keep what happened secret.

According to Connell, “In September 2012, the government abandoned its long-held policy of “presumptive classification,” in which every statement of former CIA prisoners was considered classified, but substituted a provision defining all prisoner observations and experiences on CIA detention as classified. Defense attorneys challenged that provision as violating the Convention Against Torture.”

The prosecution has argued that the five defendants are in a “particularly credible position to confirm or deny” elements of the CIA’s rendition, detention and interrogation program. Having been tortured, they are in a position to describe it, and the government has clear incentives to keep them from doing so.”

The American Civil Liberties Union opposed the government’s position, especially since it meant the military commission would censor torture testimony. Hina Shamsi, director of the ACLU’s National Security Project, declared, “The government’s claim that it can keep from the public the defendants’ testimony about their ‘thoughts and experiences’ of torture is legally untenable and morally abhorrent.”

In October of last year, Navy Lieutenant Commander Kevin Bogucki, who represents former CIA captive and former translator for Osama bin Laden, Muhammad Rahim, tried to outline the draconian and preposterous nature of the government’s position by arguing, “When the government voluntarily exposes someone outside their control to information, they are voluntarily relinquishing control over that information.” But because the prisoners are in US custody, the government had been trying to claim custody over their thoughts and memories, a truly dystopian act.

Lt Col Sterling Thomas, United States Air Force, military attorney for Mr. al Baluchi, stated, “People who have been abused by officials have a right to tell human rights organizations, medical care providers, and others about their torture. If governments are allowed to keep allegations of torture secret, the protection against torture is worthless.”

But journalist Carol Rosenberg of the Miami Herald pointed out that this only covers high-value prisoners, particularly the 9/11 defendants on trial. It doesn’t cover low-value detainees so what this will mean for all prisoners is unclear.

Additionally, two Saudi prisoners, who had long been cleared for release, were sent home.

Saad Muhammed Qahtani, who is thirty-four years old, and Hamood Abdaulla Hamood, who is forty-eight years old, according to Rosenberg, were brought to Guantanamo Bay prison in 2002 and neither was charged with any crimes.

That means for eleven years they were held in detention without charge or trial.

Portions of a Senate report on CIA torture are likely to be released. The Senate Select Committee on Intelligence, which Sen. Dianne Feinstein chairs, will be voting on adopting and releasing the executive summary, findings and conclusions in the report. They now include CIA comments, where it was deemed appropriate to include them.

The report cost $40 million and took three years to complete. It is more than 6,000 pages and much, much more from the report should be released.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."