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NEW YORK – Asserting the public’s First Amendment right to open trials, the American Civil Liberties Union sought to reverse the parts of a Guantánamo military judge’s order granting the government’s request to censor any testimony from the 9/11 defendants relating to their torture and other abuse in U.S. custody. The ACLU filed a petition with the U.S. Court of Military Commissions Review late yesterday, and it was made public this afternoon after undergoing a security review by the government.
In December, Military Judge Col. James Pohl issued a protective order containing provisions that categorically censored the defendants’ testimony concerning their personal experiences and memories of CIA “enhanced interrogation techniques,” rendition, and detention on the grounds that it was classified. The protective order also upheld the continued use of a 40-second delay audio feed of the proceedings.
“The judge’s decision to keep testimony about torture secret did not even mention the American public’s First Amendment right of access to the Guantánamo commissions, let alone apply the high standard that must be met before testimony is suppressed,” said Hina Shamsi, director of the ACLU's National Security Project. “The government’s claim that it can classify and censor from the public a criminal defendant’s personal experience and memories of CIA-imposed torture is legally untenable and morally abhorrent. Even if the government somehow had that Orwellian classification authority, copious details about the CIA’s torture and black-site detention program are already public knowledge, and the government has no legitimate reason to censor the defendants’ testimony about their own memories of it.”
In the government’s request last year to classify the testimony, it contended that any statements by the defendants concerning their “exposure” to the CIA’s detention and interrogation program are classified as “sources, methods and activities” of the U.S. and can be withheld from the public.
In May 2012, the ACLU filed a motion asking the commission to deny the government’s request and to bar a delayed audio feed of the proceedings, or, in the alternative, promptly release an uncensored transcript. A group of 14 press organizations also filed a motion in support of the media’s right to access the commission's proceedings, which was denied by the judge as well, and they have also challenged the protective order. The government’s response in both cases is due March 6.
The ACLU’s appeal is at: www.aclu.org/files/assets/gitmo_public_access_appeal.pdf
More information and documents are at: www.aclu.org/national-security/motion-public-access-guantanamo-bay-military-commission-trial