The definition and use of classified information, and the public's right to hear it, is proving to be one of the most important issues arising in pre-trial hearings in this historic September 11th terrorism prosecution. With only two of the defendants actually in the courtroom on Wednesday (the others elected not to come), lawyers from the government, defense, ACLU and 14 media organizations over the last two days have argued vehemently over whether the government is properly classifying information -- particularly the memories and experiences of the defendants, who were subjected to the CIA's classified "enhanced interrogation" program. Even if it is deemed classified, argue the ACLU and news organizations, it still has to meet a strict First Amendment standard for the court to lawfully prevent the public from hearing it.
The First Amendment only allows the closing of a courtroom, argued ACLU lawyer Hina Shamsi and media lawyer David Schulz, if it will "cause grave harm to national security."
"The government fails utterly to explain how it has a legitimate interest, let alone a compelling one, in suppressing information about a CIA coercive interrogation and detention program that was illegal and has been banned by the president," the ACLU says in its brief to the court.
The issue is important, both for the public's right to know what its government did and for the legitimacy of this historic trial. As Schulz told the court yesterday: "Nothing is likely to shape the public perception of the fairness of these proceedings more significantly than the way the court handles this request for a protective order."
The current proposed order, he said, "covers things that quite clearly can't credibly constitute a threat to our national security."
Much of the argument is over whether the government can legitimately classify information that it cannot own or control. "Thoughts, experiences and memories belong to human beings," said Shamsi this morning. "They do not belong to the government." The order is "essentially saying the government can gag people from talking about what the government illegally did to them... The government has no compelling interest in preventing the public from hearing this information."
The ACLU argues that the unprecedented 40-second delay in the audio feed to commission observers is itself a form of court closure. "No other American courtroom has a government official with a finger on a censor button," said Shamsi. A 40-second delay sounds "seductively reasonable," she continued, "but it doesn't meet the constitutional standard."
Justice Department lawyer Joanna Baltes shot back that the ACLU's accusations were "inflammatory" and that the 40-second delay is unprecedented only because the Guantanamo military commission is the only court built with that technology. "These are international terrorism cases," she said as explanation.
Of course, civilian federal courts bring international terrorism cases all the time. Federal courts have secured nearly 500 convictions on terrorism-related charges since September 11, 2001. The military commissions have completed only seven cases, involving only two trials.
Much of this morning's proceedings focused on detailed objections to language in the government's proposed protective order. For example, the order defines "classified information" as information that's not only properly classified as presenting a threat to national security, which parallels President Obama's December 2009 Executive Order on classification, but includes information that the government has deemed "restricted" and information "derived from" information that was classified, "verbal information" known to the accused and all information related to their capture and treatment. The order does not require that those other categories of information meet the requirements of the 2009 Executive Order.
Meanwhile, Connell argued there's no established procedure for challenging information he believes has been improperly classified. When he once tried to do that, he explained, "my classification challenge was rejected because it was not brought in the proper form. When I asked what is the proper form, I didn't get any answer."
Indeed, one reason many of these arguments are dragging on so long is because there are no clear procedures, or precedent, for treating classified or otherwise sensitive information in military commissions at all. As a result, some of the lawyers argue for use of federal court procedures, while others argue for using military ones. But none directly answer many of the particular issues raised by a death penalty case of five men accused of murdering nearly 3,000 Americans 11 years ago, and who were subsequently tortured in secret CIA prisons and are now being tried in an offshore military commission.
As Judge Pohl said this morning: "There is as of yesterday three appellate decisions that have addressed commission decisions. It's not like there's going to be a whole lot of authority out there. Everything else will have to be by analogy."