MIAMI - The Pentagon's war crimes prosecutor has agreed a review panel should hear a transparency challenge of the Sept. 11 trial, but insists that what the CIA did with the accused 9/11 conspirators on their way to Guantanamo are secrets that the public must not hear.
Army Brig. Gen. Mark Martins, the prosecutor, defended the war crimes court security regime - a 40-second delay in what the public can hear and censorship of what the accused can say in public about their time in CIA custody - in filings submitted at the U.S. Court of Military Commission Review on Thursday.
The American Civil Liberties Union and a consortium of news groups took their challenges of the limits of transparency at Camp Justice in Cuba to the Washington, D.C., court after losing arguments before the Sept. 11 trial judge, Army Col. James L. Pohl.
The appeals panel is unlikely to decide the matter before the next time the accused mastermind Khalid Sheik Mohammed and his alleged conspirators come to court for pretrial hearings on April 22.
In a 23-page response to the challenge, the prosecution acknowledged that this is one of the rare issues, fashioned as a writ of mandamus, that the five-member war-court review panel can hear before conviction. When Congress tweaked the war court formula in 2009, it mostly gave the panel the authority to consider allegations of errors in legal reasoning after a trial.
At issue is the public's right to hear a real-time trial, not on a delay long enough to let a security officer mute secret information said in court - particularly any information pertaining to what the five accused 9/11 conspirators, who were not voluntary participants in the secret CIA prison and interrogation program, know about, saw or experienced during the three to four years they were in CIA custody before arriving at Guantanamo in 2006.
The prosecutor argues the pro-transparency groups are wrong to claim that the judge could, on his own, conclude that the public's right to know trumps Top Secret classification on information. The government classified the CIA program, and only the government can declassify it, Martins wrote.
He also argues that, even if information has been leaked and is widely known, the judge is obliged to keep it classified, meaning the public can't hear in his court what they've heard elsewhere - unless it's been officially declassified..
At one point the prosecution brief appears to offer a defense of the CIA program for "HVDs" - high-value-detainees, as the agency calls them - and the results it achieved before President Barack Obama banned the techniques and ordered the so-called "black sites" closed upon taking office.
Once the captives were at Guantanamo, the brief said, the Bush administration released "a limited amount of information relating to the CIA program" - including that "various 'enhanced interrogation techniques' " were approved for use on the men; "the fact that the so-called 'waterboard' technique was used on three detainees and the fact that information learned from HVDs in this program helped to identify and locate al-Qaida members and disrupt planned terrorist attacks."
Lastly, it appears to argue that, since those contesting the security regime don't know what they don't know, they don't have sufficient facts to seek transparency.
The petitioners, Martins writes, "are not in a position to assess the risk to national security inherent in declassifying the remaining categories of information."
The news groups appealing the order include The Miami Herald and its parent The McClatchy Company, ABC, The Associated Press, Bloomberg News, CBS, FOX, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Dow Jones & Co., and The Washington Post.
