The judge presiding over the Guantánamo Bay military commission 9/11 trial has approved a government request to censor all testimony from defendants related to their capture, imprisonment and torture.
Judge Col. James Pohl ruled that the blackout covers any statements made by the defendants about their treatment at the hands of their American captors. Pohl attempted to justify the censorship on national security grounds. He also upheld the use of a 40-second audio delay that will allow authorities to block classified or damaging information.
Journalists and human rights advocates had pressed for an open trial and accuse the government and military commission of attempting to censor defendants' thoughts.
"We're profoundly disappointed by the military judge's decision, which didn't even address the serious First Amendment issues at stake here," Hina Shamsi, an attorney for the American Civil Liberties Union (ACLU) said in an advisory.
"The government wanted to ensure that the American public would never hear the defendants' accounts of illegal CIA torture, rendition and detention, and the military judge has gone along with that shameful plan," Shamsi added. "For now, the most important terrorism trial of our time will be organized around judicially approved censorship of the defendants' own thoughts, experiences and memories of US torture. The decision undermines the government's claim that the military commission system is transparent and deals a grave blow to its legitimacy."
Five terrorism suspects, including alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM), are scheduled to be tried in the military court next year.
Serious concerns about Mohammed's treatment in US custody have been raised. The US has admitted to waterboarding KSM 183 times. Waterboarding is a torture technique that consists of drowning a subject and then interrupting the drowning process before death occurs. It is banned under the federal anti-torture statute and the War Crimes Act as well as under international law. KSM claims he was also subjected to other torture techniques.
KSM claims that as a result of his torture, he made false confessions about his role masterminding the September 11, 2001 terror attacks on the United States that killed nearly 3,000 people.
The CIA videotaped interrogations in which terrorism suspects were waterboarded and subjected to other illegal tortures, euphemistically referred to as "enhanced," "harsh" or "severe" interrogation techniques. But some of those tapes were destroyed in 2005 on the orders of CIA official Jose Rodriguez, who later explained that he was "just getting rid of some ugly visuals."
The very legitimacy of the military commission system has been called into question not only by human rights advocates but also by no less an authority than the United States Supreme Court. In the 2006 Hamdan v. Rumsfeld decision, the justices ruled that the Guantánamo military commissions established by the George W. Bush administration lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions."
Colonel Morris Davis, once lead prosecutor on the GITMO military commissions, called the trials "rigged from the start" and claims he was told point-blank by top Bush lawyer Jim Haynes that acquittals were unacceptable. Col. Davis quit in disgust, explaining that he felt that "full, fair and open trials were not possible under the current system." Four other military prosecutors, Maj. Robert Preston, Capt. John Carr, Capt. Carrie Wolf and Darrel J. Vandeval, all requested transfers from the GITMO commissions because they also felt that the proceedings were rigged. Maj. Preston expressed concerns over the lack of evidence against some detainees but was told by the chief prosecutor that evidence was not a prerequisite for conviction.
Susan J. Crawford, a conservative jurist who served under Ronald Reagan, George H.W. Bush and Dick Cheney, was appointed to decide who to prosecute in the GITMO military commissions. In 2009 it was revealed that Crawford refused to prosecute Mohammed al-Qahtani, who she and the government both believed would have been the 20th 9/11 hijacker. Crawford ruled that the United States could not proceed with its prosecution because "we tortured al-Qahtani."
Despite the tortured history of many Guantánamo detainees, and despite the Supreme Court's repudiation of the military commission system, President Barack Obama reversed his 2009 executive order halting GITMO military trials and approved their resumption in March 2011. Gone was a plan announced by Attorney General Eric Holder to try terrorism suspects like KSM in civilian courts on US soil, a move that would have greatly bolstered America's reputation as a nation that respects and adheres to the rule of law. In this, as in many other decisions, President Obama opted for more or less a continuation of his much-maligned predecessor's policies.