Investigation. Education. Accountability. Reform.

Judge’s Order Could Keep Public From Hearing Details of 9/11 Trials

Among the men about to undergo military trials at Guantánamo Bay, Cuba,
is the self-proclaimed 9/11 mastermind.

By Peter Finn
Staff Writer
Wednesday, January 7, 2009

The military judge overseeing proceedings against five of the men accused of
planning the Sept. 11, 2001, attacks signed an order designed to protect classified
information that is so broad it could prevent public scrutiny of the most important
trial at Guantánamo Bay, Cuba, according to lawyers and human rights groups.

The protective order, which was signed on Dec. 18 by Judge Stephen R. Henley,
an Army colonel, not only protects documents and information that have been
classified by intelligence agencies, it also presumptively classifies any information
"referring" to a host of agencies, including the CIA, the FBI and
the State Department. The order also allows the court in certain circumstances
to classify information already in the public domain and presumptively classifies
"any statements made by the accused."

Three of the accused, including Khalid Sheik Mohammed, the self-proclaimed
mastermind of the 9/11 attacks, are defending themselves and, under the order,
anything they say during the course of the trial could be shielded from the

"These rules turn the presumption of openness on its head, making what
is perhaps the most important trial in American history presumptively closed
to the public and the press," said Jennifer Daskal, senior counterterrorism
counsel at Human Rights Watch. "If these rules applied in all cases, there
would be no such thing as an open trial in America."

Late Monday, the judge appeared to have second thoughts about the breadth of
the order. In an e-mail to both the prosecution and the defense, he invited
counsel to file briefs on whether the protective order expands "the definition
of ‘classified information’ and the scope of protective orders generally beyond
that provided for in the [Military Commissions Act] and other applicable legal

If so, the judge said, he wants to know what "modifications" should
be made to the order.

Prosecutors defended the wording of the order. It "is standard language
used in numerous other counterterrorism, counter-espionage or habeas detainee
cases in federal court throughout the past nine years," said Col. Lawrence
Morris, chief prosecutor for the Pentagon’s Office of Military Commissions.
"In fact, numerous cases have applied far more restrictive language in
their protective orders that we did not implement here."

Asked if Henley would discuss his order, the Office of Military Commissions
said it would be inappropriate for a judge to comment on an ongoing case.

Military and civilian defense lawyers in the 9/11 case declined to comment.
They said they are under military court order not to discuss documents in the
case until they have been released by the court. The protective order, which
was obtained by The Post, had not been made public.

The case against the 9/11 defendants has yet to go to trial, and it is unclear
if it ever will. President-elect Barack Obama has vowed to close the military
prison at Guantánamo Bay. But he has not said whether he will also abolish the
system of military commissions created by the Bush administration or if he will
transfer cases to federal court or military courts-martial in the United States,
as some of his supporters have urged.

The protective order states, in part, that "any document or information
including but not limited to any subject referring to the Central Intelligence
Agency, National Security Agency, Defense Intelligence Agency, Department of
State, National Security Council, Federal Bureau of Investigation, or intelligence
agencies of any foreign government, or similar entity, or information in the
possession of such agency, shall be presumed to fall within the meaning of ‘classified
national security information or document’ unless and until the [senior security
adviser] or Prosecution advises otherwise in writing."

The senior security adviser assists the military court in the handling of classified

Defense attorneys and military and civilian lawyers advising the defendants
representing themselves want to challenge any evidence gleaned from coercive
interrogations at the hands of the CIA. But the defense is required to notify
the prosecution of any intention to disclose "classified information in
any manner." Defense lawyers said the order, which carries the threat of
criminal penalties if it is violated, hobbles any ability to independently investigate
the charges against the accused and their treatment by the government.

"It’s a gag order that gives the U.S. government almost absolute control
over the disclosure of information about the detention and interrogation of
these defendants," said a lawyer familiar with the document, speaking on
the condition of anonymity. "If you look at the order in its strictest
language, you better not read even the 9/11 Commission report in a court in

The document was signed after the Guantánamo Bay court considered motions from
the prosecution and declarations by the director and officers of the CIA.

CIA Director Michael V. Hayden has acknowledged that Mohammed was subjected
to waterboarding, an interrogation technique in which a prisoner is restrained
as water is poured over his mouth, causing a drowning sensation.

But the ability to explore even that admission in open court is uncertain under
Henley’s order. Attempts to corroborate the known actions of the CIA can be
classified under the order.

Mohammed has already alleged in open court that he was tortured, but such claims
by the accused may now be considered classified and off-limits to the public.
The Guantánamo court is sealed and the proceedings are heard by those in the
public gallery after a time-delay that allows the senior security adviser to
cut off the audio feed when information thought to be classified arises.

Pentagon officials have long insisted that trials at Guantánamo would be transparent
as well as fair. Prosecutors said they have to balance the desire to be open
with the need to protect national security secrets.

"It is also important to remember that defense counsel, by virtue of their
access to the accused in this case, are uniquely situated to credibly comment,
confirm, or deny classified information in a public way that risks further damage
to national security," Morris said.

Daskal, however, said: "These rules seem little more than a thinly disguised
attempt to classify evidence simply because it might be embarrassing or unlawful.
These five men are known to have been tortured and severely mistreated during
their years in CIA custody, including the acknowledged waterboarding of Khalid
Sheikh Mohammed. The claims of torture should be investigated rather than concealed."

Staff researcher Julie Tate contributed to this report.

Source URL: http://www.washingtonpost.com/wp-dyn/content/article/2009/01/06/AR2009010603374.html?hpid=moreheadlines