Military Commission Judge Rules Against Transparency in 9/11 Case

12/12/2012 04:08 pm ET | Updated Feb 11, 2013

Last week, Col. James Pohl, the military judge presiding over the trial of Khalid Sheikh Mohammed and the five other men accused of plotting the September 11, 2001 terrorist attacks, quietly issued a ruling ensuring the public won't learn any information about the men's torture at the hands of the U.S. government. The ruling itself was filed under seal.

Today, the decision to keep official torture a secret was made public. The judge's decision confirms that the military prosecutors in this death penalty case will have their way: the government can keep secret all statements from the five defendants about their treatment during interrogation in secret overseas CIA prisons and the use of a wide range of so-called "enhanced interrogation techniques." Although President Obama in his first days in office issued an executive order shuttering the CIA prisons and abandoning the use of those techniques, the government's lawyers have insisted in this case that any information about how those techniques were applied in the past must remain classified. Today, we learned that the military commissions will support that secrecy, even without a logical explanation.

In October, the ACLU and 14 news organizations argued to the military commission at Guantanamo Bay that keeping this information secret violates the First Amendment, which protects a public right to know what its government is doing. To conceal such information in a public trial, they argued, the government has to demonstrate that its release would cause "grave harm to national security."

From what I heard of the arguments to the court, the government never did that. Instead, it argued simply that it's the executive branch's prerogative to determine what is classified, and that its proposed "protective order" in the case merely provides guidance for the attorneys handling classified evidence. In fact, in this case, that order will keep that evidence from the public.

The Judge also upheld the military commissions' use of a 40-second delay in the audio feed from the courtroom to the viewing rooms at Guantanamo Bay and in Ft. Meade, Maryland, where members of the public can watch the hearings. Echoing the prosecutors' arguments, Judge Pohl ruled that the 40-second delay "permits the Commission to assess and remedy 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."

When he was appointed Chief Prosecutor of the Guantanamo military commissions last year, Brig. Gen. Mark Martins dismissed critics' concerns and insisted the commissions had been "reformed" and would be fair and "transparent." Information would only be withheld from the public, he said, when it is "necessitated by a compelling governmental interest."

The government has still never articulated its interest in withholding information from the public about the official use of torture by U.S. officials. Significantly, tomorrow the U.S. Senate Select Committee on Intelligence (SSCI) will consider whether to adopt a 6,000+ page report on CIA "enhanced interrogation" and detention. It's still not clear whether any part of that report will be made public.

Meanwhile, if anyone wants a purely fictional dramatized account of the U.S. government's use of torture to extract information from the so-called "high-value detainees," they can watch the new Hollywood movie Zero Dark Thirty. High on critics' list for an Academy Award, that's likely to get a whole lot more attention than is the truth of what was done to these defendants -- and the real result.