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"You Can't Gag Somebody and Then Want to Kill Them"

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On Tuesday, October 22, the lawyers for the September 11 accused argued that the Guantanamo military commissions' protective order violates the United Nations Convention Against Torture. The protective order states that the defendant's "observations and experiences" of torture at CIA black sites are classified. Defense counsel say that this violates the Convention Against Torture's requirement that victims of torture have "a right to complain" to authorities in the countries where they are tortured, and makes the commission into "a co-conspirator in hiding evidence of war crimes."

It is not only the defendants' lawyers who object to the protective order. The ACLU has called the restrictions on detainees' testimony "chillingly Orwellian." Earlier this year, the Constitution Project's bipartisan, independent Task Force on Detainee Treatment (for which I served as staff investigator) found that the military commissions' censorship of detainees' descriptions of their own torture could not be justified on grounds of national security, and violated "the public's First Amendment right of access to those proceedings, the detainees' right to counsel, and counsel's First Amendment rights." This month, the European Parliament passed a resolution that called on the United States "to stop using draconian protective orders which prevent lawyers acting for Guantánamo Bay detainees from disclosing information regarding any detail of their secret detention in Europe."

All of this must be somewhat embarrassing to military prosecutors, who adopted the motto, "Fairness, Transparency, Justice" for the reformed commissions in 2011. But they argue that the judge has no choice but to defer to the CIA on matters of classification.

President Obama has increasingly done the same. Early in his presidency, he was sometimes willing to override the intelligence community on secrecy matters. In April 2009, over the CIA's objections, Obama declassified four Office of Legal Counsel (OLC) opinions that described in graphic detail the brutal techniques that the CIA used against captives after September 11, because in his judgment their release was "required by the rule of law."

But today, the administration takes the position that the release of the OLC memos only declassified the CIA's use of torturous interrogation techniques "in the abstract." The details of any individual detainee's treatment in CIA custody are still top secret. The CIA claims this is necessary because disclosures about individual interrogations would "provide future terrorists with a guidebook on how to evade such questioning," and "provide ready-made ammunition for al-Qa'ida propaganda."

Based on these arguments, in case after case, courts have denied Freedom of Information Act requests for CIA documents about the torture program, and denied torture victims' ability to sue for damages. To give only a few examples: the CIA Office of the Inspector General (OIG) wrote a 98-page report on the homicide of Manadel al-Jamadi, the CIA "ghost detainee" detainee whose corpse is shown in several of the Abu Ghraib photographs. The CIA successfully argued that every single sentence of that report, and eleven other OIG reports on abuses in its detention and interrogation program, is classified. Every lawsuit filed in U.S. court by victims of CIA "rendition" to torture has been dismissed on national security grounds--including suits brought by detainees now widely acknowledged to have been completely innocent.

Most of the civil suits challenging official secrecy about CIA torture have ended. But the issue will not go away so easily in the Guantanamo military commissions, because the U.S. government has two conflicting objectives. The prosecution is trying to execute six former high value CIA detainees for their role in September 11 and the bombing of the U.S.S. Cole. It is also trying to conceal the details of defendants' torture in CIA custody, and its lasting medical and psychological effects.

This is a problem, because the defendants' torture is the most crucial factor weighing against a death sentence. Cheryl Bormann, the lawyer for defendant Walid bin Attash, argued in court Wednesday that "[y]ou can't gag somebody and then want to kill them....As a death-penalty lawyer, and under the Eighth Amendment, I'm required to investigate every aspect of mitigation." But "[e]verywhere I turn in investigating this issue, we hit a brick wall. And we hit a brick wall in large part because of the classification regime that we operate under." Borman said, "[i]f you really want to have a fair trial and execute them, then you have to ungag them."

Prosecutor Clay Trivett argued that the defendants' attempt to disclose the details of their torture was a form of "graymail," and that the military commission lacked jurisdiction to enforce the Convention Against Torture or override executive classification decisions. Trivett said that the defense would have an opportunity to present relevant evidence of their clients' treatment during the mitigation phase of the case (in secret, presumably).

The defense argued that the CIA had a clear conflict of interest: "the same government agency that tortured Mr. Mohammad is seeking to silence Mr. Mohammad," said Major Jason Wright, Khalid Sheikh Mohammed's military defense lawyer. Bormann noted that the CIA had allowed former employee Jose Rodriguez to publish detailed factual claims about individual detainees' interrogations, even as it censored defendants' statements about their own treatment.

The only point that the prosecution, defense, and Judge James Pohl agreed on was that President Obama had the authority to resolve these issues. "If the President of the United States wants to declassify this information, he certainly can and we would not be having this discussion," Pohl said.

But the Obama White House is unwilling to even acknowledge that authority, let alone exercise it. Asked what the White House role was in resolving classification disputes in military commissions, and whether anyone in the administration could override the CIA's classification decisions, National Security Council spokeswoman Caitlin Hayden replied:

the White House does not play a role in determining the classification of filings at the military commissions, or the classification of information presented orally at commission hearings. I'd refer you to DOD, who is responsible for the military commissions process.

Hayden was equally noncommittal in response to questions on the White House's position on the Senate Intelligence committee's report on the CIA program.