The military judge overseeing the trial of Khalid Sheikh Mohammed and four others accused in the Sept. 11, 2001, terrorist attacks granted a U.S. government request to limit disclosure of classified information about “sources, methods and activities” used in fighting terrorism.
The American Civil Liberties Union made the ruling public yesterday, saying in a statement that the judge’s decision would prevent the public from learning about “illegal CIA torture.”
The written ruling by Army Colonel James Pohl also approves the government’s request for a 40-second audio delay in relaying proceedings from the military courtroom at Guantanamo Bay, Cuba.
Mohammed, who has described himself as the mastermind of the Sept. 11 attacks, was held by the Central Intelligence Agency until 2006, before being sent to Guantanamo. The CIA has acknowledged he was one of three al-Qaeda operatives who were waterboarded. He underwent the procedure, which simulates drowning, 183 times, according to government documents.
Prosecutors and defense lawyers spent part of a week in October debating how a military tribunal should handle classified and other sensitive information in the biggest terrorism case in U.S. history.
A proposed protective order that will govern the case will allow the government “to preserve information relevant to our national security,” Pohl said in the five-page ruling.
Among issues to be considered classified, Pohl said in the order he issued, are details about the capture of the accused, countries where they were held, the “enhanced interrogation techniques” that were used, conditions of their confinement, and the “observations and experiences of an accused” on those subjects.
“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 the statement. “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.”
Army Lieutenant Colonel Todd Breasseale, a Defense Department spokesman, said Pohl’s ruling was proper.
“By imposing a protective order, he has done what all courts do to responsibly handle national security information while also ensuring both that the accused will receive a fair trial and that the proceedings will be as open and public as possible,” Breasseale said in an e-mail.
Mohammed and the four others are accused of plotting the attacks that used hijacked passenger airplanes to kill almost 3,000 people at the World Trade Center in Manhattan, the Pentagon in Virginia and a field in Pennsylvania.
The defendants are charged with conspiring to finance, train and direct the 19 hijackers who seized the planes. The charges include terrorism, hijacking aircraft, conspiracy, murder in violation of the laws of war and attacking civilians. The men could face the death penalty if convicted.
The next set of hearings in the case are scheduled for the week of Jan. 28 at Guantanamo Bay.
Pohl said the 40-second audio delay to be used in relaying court proceedings would prevent “any negligent or intentional disclosure of classified information without unduly impacting on the ability of the public and press to fully see and understand what is transpiring.”
More than a dozen news organizations, including Bloomberg News, had filed a motion opposing the government’s proposed secrecy rules.
“We are disappointed that the war court did not address the constitutional concerns raised by the press” David Schulz, a lawyer for the media companies, said yesterday in an e-mailed statement. “Its order today fails even to acknowledge the public’s constitutional right of access to criminal trials. We are assessing our options.”
Air Force Lieutenant Colonel Sterling Thomas, a lawyer for defendant Ali Abdul Aziz Ali, Mohammed’s nephew, said the ruling will keep secret the “thoughts, memories and observations of individuals who were tortured.”
“The judge ruled in favor of secrecy over transparency,” Thomas said in an e-mail. “Judge Pohl issued an order that expands the definition of classified information beyond the bounds of the law.”
With a trial in the case possibly years away, lawyers for the five men have filed a barrage of motions seeking to define and expand the legal rights they will be afforded as they attempt to air grievances about their treatment in captivity.
David Nevin, a lawyer for Mohammed, didn’t immediately return e-mailed requests for comment on the ruling.
The case is U.S. v. Mohammed, Military Commissions Trial, (Guantanamo Bay, Cuba).