Testimony from the defendants at the Guantánamo Bay military commission 9/11 trial describing their own torture will be censored, the ACLU announced Wednesday afternoon, dealing a blow to the First Amendment rights of the American public and crushing claims of the commission's purported transparency.
Military Judge Col. James Pohl, who is presiding over the trial, approved the US government's request to keep the details of defendants' torture from the public, and allows for a 40-second delay on the audio feed of the proceedings to continue, which, Hina Shamsi, director of the ACLU's National Security Program, says is "the tool through which the government unconstitutionally prevents the public from hearing testimony about torture."
The ACLU had challenged the secrecy, filing a motion in May asking for public access to the proceedings. In that motion, the ACLU stated that the government
has no legal authority to classify defendants’ statements containing their personal knowledge of the detention and treatment, including torture, to which they were subjected in U.S. custody--information that defendants acquired by virtue of the government forcing it upon them. In addition, the President of the United States has banned the illegal CIA interrogation techniques to which the defendants were subjected and closed the secret facilities at which they were held. The government’s suppression of defendants’ statements about techniques and detention that are banned and prohibited by law--and that, accordingly, cannot be legitimately employed in the future--is not justified by the government’s interest in protecting legitimate methods, and thus fails strict scrutiny as well. Finally, it is the very antithesis of the narrow tailoring required by the First Amendment for the government to categorically gag defendants when copious details about the CIA’s use of torture and coercive techniques, including on the defendants, have been disclosed publicly in official government documents and other reports and press accounts.
"We’re profoundly disappointed by the military judge’s decision, which didn’t even address the serious First Amendment issues at stake here," Shamsi stated of Judge Pohl's ruling on Wednesday. "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."
"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 CIA torture. The decision undermines the government’s claim that the military commission system is transparent and deals a grave blow to its legitimacy," said Shamsi.
Kevin Gosztola points out at Firedoglake that the ruling proves "the military commissions cannot be fair." He writes:
With this ruling, the government has won the privilege to keep the press and public in the dark on how they have treated 9/11 defendants. They have also won a precedent that will likely become a fixture of the process in this second-class legal justice system, which President Barack Obama chose to use over trials in federal courts.
This means any detainees held at Guantanamo that may find themselves being brought to trial will find it impossible to communicate to the world that their rights have been violated. Even if they are ultimately guilty of terrorism, entrenching this into the process proves the military commissions cannot be fair and that the government is capable will do whatever necessary to prevent violations of due process or human rights from infringing their ability to win convictions.