9/11 hearings set to begin. Should Khalid Sheikh Mohammed be censored?

A military judge at Guantánamo is set to hear an array of pretrial motions starting Thursday in the case of alleged 9/11 mastermind Khalid Sheikh Mohammed – including whether the US government can attempt to muzzle Mr. Mohammed and hamstring his lawyers by classifying anything he says as a presumed national security secret.

Government lawyers are asking the judge, US Army Col. James Pohl, to issue a protective order endorsing a decision by American officials to presumptively classify as “top secret/sensitive compartmented information” all statements by Mohammed and his four co-defendants, including casual remarks to their own lawyers.

The basis for the request isn’t to prevent the airing of stolen secrets or the fruits of Al Qaeda espionage. Rather, it is to prevent the five Al Qaeda suspects from revealing in public precisely what the US government did to them during years of imprisonment and interrogation at CIA black sites.

Since all five men have personal knowledge of highly sensitive interrogation techniques and cannot be trusted to keep those measures secret, it must be presumed that anything they say could lead to the unauthorized disclosure of those secrets, government lawyers argue.

Defense lawyers counter that such “presumptive classification” by the government is illegal and unconstitutional and will make it virtually impossible to effectively defend their clients.

“The government seeks to censor defendants’ statements based on a chillingly Orwellian claim: because a defendant was ‘detained and interrogated in the CIA program’ of secret detention, torture, and abuse, he was ‘exposed to classified sources, methods, and activities’ and must be gagged lest he reveal his knowledge of what the government did to him,” wrote Hina Shamsi in a motion filed on behalf of the American Civil Liberties Union.

“The government has no authority to classify statements based on the defendants’ personal knowledge and experience of government conduct,” she said.

Judge Pohl has scheduled six days to hear more than two dozen legal motions at the high-security courtroom on the US Naval Station at Guantanamo Bay, Cuba.

The hearings are designed to establish basic procedures and resolve legal issues prior to the military commission trial of the five alleged Al Qaeda members on charges that they planned and helped carry out the 9/11 terror attacks.

No trial date has yet been set. If convicted, all five face possible death sentences.

In addition to the presumptive classification issue, Pohl is also set to examine whether a full range of constitutional protections will apply during the trial or some lesser legal standard.

He will hear argument over whether pretrial statements by senior US officials suggesting Mohammed’s guilt – including widely reported comments by Presidents and Commanders in Chief Bush and Obama – have made it impossible to conduct a fair trial in a military court.

The judge is expected to examine whether defense lawyers were given a fair and adequate opportunity before their clients were formally charged in the military commission to make a case that criminal charges were not justified.

Pohl will also consider how to resolve an ongoing controversy over efforts by security officials at Guantánamo to inspect the detainees’ legal papers to ensure they do not contain contraband. Defense lawyers charge the security efforts violate the attorney-client privilege.

The military commission process was specially set up to provide a legal alternative to bringing Al Qaeda suspects to American courts where, as criminal defendants, they would be afforded the full protections of the US Constitution.

Instead, Mohammed and his co-defendants will receive a more streamlined version of justice at Guantánamo. It remains unclear how Pohl will balance the defendants’ right to a fair trial against the government’s duty to safeguard national security secrets.

The special courtroom where the commission trial is to take place features a public gallery where spectators are permitted to watch the proceedings through thick, soundproof glass.

All sound from the courtroom arrives in the public gallery through speakers after a 40-second delay imposed to allow government censors time to cut transmission of the audio if sensitive information is inadvertently disclosed.

Thus spectators are able to view in real time what is happening in the courtroom, but any spoken words or other sounds reach the public gallery only after first being deemed appropriate for public consumption by an unseen government censor.

The requested presumptive classification procedure would come in addition to the 40-second audio delay.

If embraced by the judge, the proposed protective order would require defense lawyers to fully disclose in advance to the judge and to the government anything a defendant in the 9/11 trial was about to say in court.

“Because all statements of the Accused are presumed to contain information classified as TOP SECRET/SCI, the Defense must provide notice ... if the Accused intends to make statements or offer testimony at any proceeding,” the proposed order reads in part.

The government’s claims are based on the fear that the defendants will publicly disclose details of their treatment by the Central Intelligence Agency.

“Because the Accused were detained and interrogated in the CIA program, they were exposed to classified sources, methods, and activities,” the government’s motion reads in part. “Due to their exposure to classified information, the Accused are in a position to reveal this information publicly through their statements,” the brief continues.

“Consequently, any and all statements by the Accused are presumptively classified until a classification review can be completed,” the brief says.

The government says that while some details of the secret interrogation program have been made public, other details remain private. The protected details include information about the location of CIA detention facilities; cooperating foreign governments; personnel involved in the capture, detention, and interrogation of detainees; conditions of confinement; and specific interrogation techniques applied to specific subjects, the government’s brief says.