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Can 9/11 Defendants' 'Memories and Experiences' Be Classified?

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Could the victim of a classified CIA execution program be prevented by the government from telling anyone about his experience being targeted by it?

That's the question a Navy defense lawyer asked in the September 11th case today, and it's a question that goes to the heart of the "presumptive classification" issue argued at today's military commission hearing in Guantanamo Bay. Of course, the victim of a successful CIA execution program wouldn't live to talk about it, but the victim of a CIA torture program would, and that's what defense lawyers in the September 11th say is their clients' situation.

The defense argues that the government has created a new category of "presumptively classified" information in order to prevent their clients from speaking about their own experiences, which cannot legitimately be classified.

"The government is using a clever interpretation of this derivative classification scheme to protect someone from describing conduct to which they were exposed," said Lt. Cmdr. Kevin Bogucki, who represents Ramzi bin al Shibh. "His exposure to the conduct is not an exposure to secret information. This is the problem with trying to classify his memories and experiences."

Whether the government can classify an individual's own memories and experiences is at the heart of the argument over secrecy in this case. On the one hand, the memories and experiences are his own, and the government can't control them. On the other, argues the government, these individuals were exposed (albeit involuntarily) to government secrets by having been subjected to the CIA's classified interrogation program -- which we now know included "enhanced interrogation" methods that amounted to torture. The government doesn't want any information about those programs made public.

"What if I can conclusively prove my clients' innocence?" asked Bogucki, addressing Judge Pohl. "To release him from Gitmo would be to lose control over the information. Would they have to hold my client for 25 more years until the classification expires?" he asked.

"We have to eliminate this overbroad and unjustifiable concept of presumptive classification. The court should not endorse such a concept by leaving it in the protective order."

Justice Department attorney Joanna Baltes, meanwhile, tried to portray the government's proposed protective order as routine. This sort of order "was dreamed up by a district court judge" in a civilian federal court, she explained, "as a handling mechanism for attorneys to actually deal with statements to attorneys from their clients."

But those clients were presumably not exposed to a secret CIA torture program that bears directly on their sentence in a death penalty case. In the one case the government cites that did involve the CIA interrogation program, the case of U.S. v. Ghailani, involving the USS Cole bombing, Ghailani's torture was not legally relevant to the case because it was not a death penalty case and the government agreed not to introduce any statements the defendant made after he was tortured.

More importantly, as Judge Pohl repeatedly pointed out, this is a military commission, not a civilian federal court. "The federal judges -- they do it their way. I'll do it my way."

Pohl's concern, he said, was that by having an order that addresses not simply what's classified, but what's "presumptively classified," then "it seems to me there's potential, as worded, to cover unclassified information."

Whether that "unclassified information" includes the detainees' own memories and experiences, however, he did not say.

Then again, the judge probably doesn't have the authority to decide what's classified or not -- although that's not completely clear in this case, either. The government's position is that only the executive branch can decide what is, or is not, classified.

The judge can decide, however, when classified information can be used in this case and how. That will be the focus of tomorrow's hearing.