Hurricane Isaac has caused a suspension of the Guantanamo military commission hearing for the five accused 9/11 suspects that was scheduled to begin on August 22. When the storm passes and the hearing on multiple pre-trial motions commences, it will produce fodder for a new chapter in the long, strange saga of American torture.
The five defendants – Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali and Mustafa al-Hawsawi – were held for years in CIA in black sites and subject to what the government euphemistically terms “enhanced interrogation methods” before being transferred to military custody at Guantanamo in September 2006.
With another choice euphemism, the government describes them as “participants in the CIA programme”. That participation exposed them to “classified sources, methods and activities”.
The challenge the government faces is how to prosecute people who have been tortured without putting the torturers and those who authorised them on trial, too. Of course, no one responsible for CIA torture has actually been put on trial, but these 9/11 defendants are a weak link in the wall of unaccountability.
If they testify or speechify about their “participation” in the CIA’s interrogation programme, then journalists and others observing the military commission might hear things that the government claims would cause “exceptionally grave damage to national security”. To avert that possibility, the government has produced a protective order to make everything the defendants say presumptively classified, pending completion of a classification review.
If the government’s order is accepted by Judge James Pohl, then every time one of the defendants speaks, the sound will be cut off to the observation booth at the back of the courtroom where journalists and observers sit and to other remote sites where the proceedings are being projected. The sound system in that courtroom is set up for a 40-second audio delay, a feature utilised at other hearings that have taken place in it, including the 2008 arraignment of these five defendants.
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In this case, however, the protective order would impose not a brief delay or selective blockage, but full-scale censorship. Only those words cleared by censors would ever be heard, later. Actually, they would never be “heard”, but rather would be made available in the form of redacted transcripts. If the government prevails, observers at any of the 9/11 hearings would see, but not hear those on trial.
In response to the government’s move to censor the proceedings in this way, in May the American Civil Liberties Union (ACLU) filed a motion requesting that Judge Pohl not accept the terms of the protective order on the grounds that it is inimical to an open trial and violates the public’s right to know what transpires at this historic military commission. Defence lawyers have also submitted a motion to end presumptive classification.
The ACLU motion argues that the government does not have the legal authority to “classify defendants’ statements containing their personal knowledge of the detention and treatment, including torture, to which they were subjected in US custody”. In a lawyerly way, the ACLU motion pokes at the government’s absurd claim that they were “participants” by pointing out that any information they acquired about classified CIA sources, methods and activities was forced upon them by the government.
Moreover, the ACLU points out, illegal methods of interrogation to which the defendants were subjected have been banned, and the secret prisons where they were held have been closed. Suppressing defendants’ statements about their own experiences and knowledge about that history is not, as the government claims, necessary to protect methods because those methods are no longer in use.
The proposed suppression aims to limit and control public knowledge about that sordid chapter in the “war on terror”, and that, the ACLU argues, is not legitimate.
Finally, what the defendants might say about how they were treated is not an actual secret, and the ACLU urges Judge Pohl not to succumb to the government’s misrepresentation that it is. Copious details about the CIA programme, including the treatment of these five defendants, are publicly available in the form of declassified government documents and other reports as well as investigative journalism.
Since 2003, the ACLU doggedly has submitted Freedom of Information Act requests for official documentation about the US torture programme and litigated to achieve results. The organisation has gathered a vast array of memos, reports and other information in an easy-to-search database.
While many of the official documents made available as a result of the ACLU’s FOIA work are heavily redacted, they nevertheless expose the issues the government is now trying to suppress by censoring public access to defendants’ words at the military commission.
When the hearings on these motions are rescheduled, it will fall to the judge to decide how public these ostensibly public proceedings will be. Will he accept the government’s position that these defendants’ experiences and knowledge are a state secret that the public must not be able to hear? Or will he refuse to endorse the proposed protective order for censorship and the absurdist claims of grave danger which undergird it?
Given the global ramifications of the 9/11 terrorist attacks and the fact that this is the first trial to assign direct responsibility to people accused of being its perpetrators, the ACLU is absolutely correct in reminding Judge Pohl that “the eyes of the world are on this military commission”. When it comes to this matter, the ears of the world are on it, too.
Lisa Hajjar is a professor of sociology at the University of California – Santa Barbara. Her research and writing focus on the laws of war and conflict, human rights and torture. She is the author of Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. She is also co-editor of Jadaliyya and serves on the editorial committees of Middle East Report and Journal of Palestine Studies. Hajjar is currently working on a book about anti-torture lawyering in the US.