The GTMO Military Commissions Are Starting to Move Away from Censorship

Two months ago today, the Senate Intelligence Committee released the Executive Summary of its report on the CIA’s detention and torture program. On the same day, called on the Executive Branch to abandon “the argument that former CIA prisoners’ memories of their abuse are classified,” which has led to endless delays in the Guantanamo military commissions and to violations of the Convention Against Torture, and revise the classification guidance on the black site program to reflect what was disclosed in the report. As wrote last month,

Until the Senate report was released, the CIA had successfully argued that its “enhanced interrogation techniques” had been declassified “only in the abstract”. The details of every individual’s treatment in CIA custody remained secret, and the CIA claimed that release of that information would cause “exceptionally grave” harm to national security. That claim, more than any other, was the foundation for the wall of secrecy that still surrounds the torture program.

If the CIA had censored the details of individual detainee’s treatment from the Senate report, almost the entire document would have been blacked out—but the Senate made clear it would not accept this. The real names and the fake names of the CIA officers who participated in torture are redacted; the prisoners’ names are not. The locations of CIA prisons are redacted; the horrifying details of what happened there are not.

If the same standard were applied to full, 6000-page Senate torture report, we would learn many stories omitted from the Executive Summary. If it were applied to documents from the CIA inspector general’s and Justice Department’s investigations, we might finally learn the details of the CIA’s role in the homicides of Manadel al-Jamadi in Iraq and Gul Rahman Afghanistan—and why no one was ever held accountable for those deaths. If it were applied to the Guantanamo military commissions, the CIA and the prosecution would have to abandon their argument that the defendants’ memories of their own torture are classified. The courtroom censorship button could be switched off, and defense could finally proceed with their factual investigation of the case.

Proposed Changes to the Protective Order

This week, for the first time, there are promising signs that the Executive Branch may finally be ready to abandon its attempt to classify prisoners’ memories of their treatment at CIA black sites. General Mark Martins, the chief prosecutor of the military commissions, recently announced that the prosecution has asked military judges to amend the court orders forbidding disclosure of the defendants’ “observations and experiences” regarding

(d) The enhanced interrogation techniques that were applied to an accused . . . through 6 September 2006, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques; and

(e) Descriptions of the conditions of confinement of any of the accused . . . through 6 September 2006.

(The legal motions requesting these changes are still under seal, and have not yet been granted by the military commissions judge.)

There are limits to the changes the prosecution is seeking. If the judge approves the proposed amendments to the protective order, the military commissions defendants still will not be able to identify or describe the CIA personnel or contractors involved in their mistreatment; name the countries where they were held; or specify particular dates on which they were rendered from one prison to another. Former CIA detainees could describe what happened to them, but could not provide details about “who,” “when” or “where.”

The Black Site Translator   

The prosecution’s proposed changes to the protective order were supposed to be discussed at today’s hearing in the September 11 case. Instead, the hearing ended almost immediately after it began, because several defendants said that a government-assigned translator present in the courtroom had previously worked at a CIA black site. Ramzi Bin Al Shibh said of the interpreter, “I cannot trust him because he was working at the black site with the CIA and we know him from there.” Cheryl Bormann, defense counsel for Walid Bin Attash, said that her client had similar concerns, and the she regarded the assignment of a black site translator as a war court translator as either “the biggest coincidence ever” or another example of a “pattern of infiltration by government agencies into the defense teams.” As a result, the hearing was recessed until Wednesday morning. This comes after months of delays in the September 11 case resulting from a prior FBI investigation into Bin Al Shibh’s defense team.

It seems that the torture program, and the attempts to conceal it, will continue to haunt the military commissions for the foreseeable future. But the proposed changes to the protective order are a major step in the right direction. The next logical step is applying the same standards to former CIA detainees’ habeas corpus cases, to CIA documents that the government has refused to disclose in response to Freedom of Information Act requests, and to the full Senate torture report.

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