Can the government classify the words of an accused terrorist before he even utters them? That was to be the subject of much debate in hearings at Guantanamo Bay, now cancelled due to Hurricane Isaac. (Originally scheduled to start today, a train derailment in Baltimore yesterday cut the cable line that provides the Gitmo base with Internet access.) A military commission was scheduled to hold pre-trial hearings to hammer out some of the key issues affecting the upcoming trial of the alleged plotters of the September 11, 2001 terror attacks.
In documents filed with the military judge, Army Col. James Pohl, the government claims all statements of the detainees -- anything they said in the past or might say in the future -- must be "presumptively classified." The government wants to review every statement before its release to determine whether it would harm national security.
The primary concern is what the five defendants accused of plotting the 9/11 attacks might say about their treatment during interrogation at secret CIA prisons overseas, and then after they were transferred to the prison at Guantanamo Bay. According to the government, whatever they might say about their capture and treatment must be kept secret.
The five defendants on trial, all captured after the September 11 attacks, were considered "high-value detainees" and subjected to a combination of so-called "enhanced interrogation techniques," some of which, alone or in combination, are forms of torture. Torture and cruel, inhuman or degrading treatment are violations of both international and domestic law. In the government's view, the accused men therefore have "had access to classified intelligence sources and methods" that must be protected from disclosure.
The detainees' lawyers, on the other hand, claim the government is just trying to cover up embarrassing details of how the United States tortured their clients and broke the law. The Executive branch may only classify information to protect national security, not to prevent embarrassment or hide unlawful government conduct.
Presumptive classification "institutionalizes the practice of classifying unclassified but potentially embarrassing information," write the lawyers for Ammar al Baluchi, a computer technician from Pakistan who is one of the five defendants in the case. Baluchi's lawyers claim that presumptive classification violates President Obama's detailed executive order issued in December 2009.
"Presumptive classification destroys the President's carefully designed classification protocol, eviscerates the defense function envisioned by Congress in the Military Commissions Act, and violates the constitutional rights of government employees and prisoners alike."
Perhaps most striking is that the government isn't explaining why the men's subjective statements about what happened to them years ago should be classified at all. And, it claims it doesn't have to.
According to the government, "the law is clear: the defense may not challenge the government's decision to classify information."
Not true, argue the defense lawyers. Quoting the Supreme Court in U.S. v. Reynolds, they say it's for the court to determine whether the government's classification of evidence was proper: "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." The Military Commissions Rule of Evidence say information can be withheld as classified only if its disclosure "would be detrimental to the national security."
So how would the detainees' statements about what happened to them five or more years ago at the hands of U.S. agents harm national security now? That's not clear.
The public already knows the United States tortured detainees using interrogation techniques based on those engineered by Communist China and used during the Korean War to coerce confessions, most of them false, from American prisoners. Techniques adopted by the Americans included sleep deprivation, stress positions, exposure to extreme cold, sexual humiliation, threats to the prisoners' families and other tactics designed to break the men psychologically. Many details of the program were disclosed by the Bush administration. And former CIA Chief Jose Rodriguez recently trumpeted the program publicly in interviews promoting his book, Hard Measures: How Aggressive CIA Action After 9/11 Saved American Lives.
The U.S. government insists those techniques are no longer in use. In 2005, Congress banned them when it passed the Detainee Treatment Act, prohibiting "cruel, inhuman, or degrading treatment or punishment" of detainees and providing "uniform standards" for interrogation by the U.S. military. President Obama in 2009 issued an executive order shuttering the CIA prisons and commanding the agency to follow the same limits on interrogation as does the U.S. military.
So if the government's use of torture and "enhanced interrogation" is over, what's the harm to national security if they are discussed? Particularly in a death penalty case such as this one, mistreatment of the defendants by the U.S. government would normally be considered a "mitigating circumstance" and therefore relevant to whether, if found guilty, they should be executed.
The issue isn't just what the detainees are allowed to say at trial. The government's prohibition extends even to what the men are allowed to say to their own lawyers and experts assisting their legal defense. Only those on their legal teams with the highest level of security clearance are allowed to receive this "presumptively classified" information, yet the government hasn't provide the necessary clearance to many important members of the legal defense teams. Defense lawyers say that's made it impossible for them to meet their ethical obligations to defend their clients.
Even aside from whether these five defendants are able to adequately communicate with their lawyers in this historic case and get a fair trial, there's a broader principle at stake here about the American public's right to information about its own government. If the defendants' statements about their own treatment at the hands of U.S. agents is classified, will the public ever be allowed to know what the U.S. government did to those suspected of aiding terrorism in the aftermath of the September 11 attacks? Will the U.S. torture program that's become not only an embarrassment for the United States but the claimed impetus for subsequent terrorist attacks on Americans ever be fully exposed?
If the government has its way in this case -- which seems far more likely than it would in a civilian federal court with an independent judge -- then probably not.
This post has been modified since its original publication to reflect the cancellation of the trial.
Follow Daphne Eviatar on Twitter: www.twitter.com/deviatar