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August 20, 2013

Military Commission Still Stuck on Secrecy

Lawyers at the 9/11 pre-trial hearings at Guantanamo Bay continued on Tuesday to wrestle over basic issues of what evidence the five co-defendants are entitled to see and who in the government has access to defense attorneys' documents.

In lengthy arguments on procedural matters that often seemed arcane, defense lawyers complained that a court order designed to protect classified information prevents them from performing basic tasks, such as interviewing a foreign witness abroad. That's because the witness could mention the mistreatment of detainees at Guantanamo Bay, yet the entire subject of torture - or so-called "enhanced interrogation techniques" - has been deemed classified in this case.

The protective order governing the case says the lawyers may not discuss such information outside a "secure area" and may not disclose any of that information to their clients, or anyone else without the proper security clearances.

Meanwhile, much of the information has already been provided to the public through news and human rights organizations. For example, David Nevin, Khalid Sheikh Mohammed's lawyer, noted that the Judge's protective order treats as classified the fact that his client was waterboarded 183 times, even though that was revealed by reporters and has been widely published, including in the New York Times. Does that mean the lawyers have to still treat it as classified?

"This is the height of silliness," James Harrington, lawyer for Ramzi bin al Shibh, said at one point. "The whole world knows this information."

Silly or not, it can create major complications for the defense lawyers. The protective order says any interview that might involve classified information must take place in a "secure area."So if defense lawyers interview a witness abroad who might mention enhanced interrogation techniques, and they're not in a "secure area," what happens?

"The ambiguity in your protective order provides us immense difficulty that could include a criminal prosecution," Cheryl Bormann, attorney for Walid bin Attash, said to the Judge.

The prosecution's classification expert, Joanna Baltes, suggested defense lawyers were misreading the protective order. In that case, said Nevin: "It seems the Protective Order doesn't mean what it literally says."

Part of the confusion arises because different government agencies have told defense lawyers different things about what's classified and how to treat it. The Office of Special Security advised defense lawyers that they must treat all information related to "enhanced interrogation techniques" as classified and subject to the restrictions of the protective order. That means it can't be shared with the lawyers' clients or any experts or witnesses who don't have the necessary security clearances.

Prosecutors, for their part, seemed to agree that anything the government hasn't officially declassified must continue to be treated as classified, even if "the whole world knows it," as Harrington put it.

"Certainly information that's been officially declassified isn't classified," said Baltes at one point. But she confirmed that if it hasn't been officially declassified, it still must be treated as classified.

That creates a serious problem for defense attorneys who then can't discuss with their clients or other potential witnesses information relevant to their case that's already been widely publicized, and try to determine whether or not it comports with their experience.

The other problem that came up Tuesday is whether the government's classification authorities have to keep confidential their review of defense attorneys' documents, which are privileged. So far, the Original Classification Authority has been allowed to share that information with others in the government to determine whether it's classified.

That's a problem, said defense attorney James Connell, because "a vast number of government intelligence authorities" are interested in information from these five co-defendants.

Perhaps Judge James Pohl will eventually clarify all this confusion. But it's amazing that 12 years after the September 11 terrorist attacks, the military commission at Guantanamo is still trying to figure out what is or isn't classified, how to handle it and the procedures for prosecutors to provide documents relevant to the case to defense lawyers.

Meanwhile, there have been about 500 terrorism prosecutions completed in federal courts on U.S. soil since 9/11. They seem to have gotten that evidence and document-sharing system down.