By Jim Kouri
The judge presiding over the military trials of Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, and four other terrorism suspects held at the detention center on Guatanamo Bay, Cuba, is expected to have rough sailing thanks to groups such as the American Civil Liberties Union (ACLU). On Tuesday, the judge, U.S. Army Col. James Pohl, addressed the issue of holding a fair trial while withholding, or at least limiting, access to classified documents and information.
“It is important to first lay down the ground rules in the military commission so that all concerned know exactly how to proceed with a fair trial without divulging classified information. The prosecutors requested a “presumptive classification rule,” which essentially means that anything the defendants say will be treated as classified unless proven otherwise,” said Thomas Spence an attorney familiar with military law and criminal procedure law.
David Schulz, a civilian attorney acting on behalf of several news media organizations, claims that the presumptive classification rule violates the public’s First Amendment right to information. He noted that the main question for the court is whether the public’s constitutional right to observe and attend court proceedings extends to military commissions.
“Schulz claims that closed sessions are appropriate when necessary to protect information that, if released, could substantially impact national security. But he requested that Judge Pohl utilize a narrow definition of exactly what is and is not important enough to override the public’s constitutional rights and warrant secret sessions,” said Spence.
The American Civil Liberties Union also argued against what it termed a “thinly veiled effort to censor the defendants’ testimony,” The ACLU wants the public to hear any testimony that reveals torture by interrogators while the suspects were in U.S. custody.
“The government’s claim that it can keep from the public the defendants’ testimony about their ‘thoughts and experiences’ of torture is legally untenable and morally abhorrent,” said Hina Shamsi, director of the ACLU’s National Security Project. “There is an ongoing public debate about the fairness and transparency of the Guantánamo military commissions, and if the government succeeds in imposing its desired censorship regime, the commissions will certainly not be seen as legitimate.”
“One can always count on the ACLU to push anything that can be construed as illegal or immoral activity on the part of the military, law enforcement or the intelligence community. In essence, they’re chomping at the bit to create a situation in which the U.S. is on trial, not the murdering terrorists,” said former military police and civilian detective Paul Reiger.
The ACLU filed a motion in May asking the commission to bar a delayed audio feed of the proceedings or promptly release an uncensored transcript, according to a Pentagon official.
“[I]f the government imposes its desired censorship procedure, the commissions will certainly not be seen as legitimate,” said officials with the ACLU.