October 17 Commission Session #2: On Access, Human Experience, and Ghailani, Among Other Things

We pick up where yesterday left off---with the ACLU’s Hina Shamsi, who continues her First Amendment-based challenge to the government’s proposal for an order protecting certain national security information.  She turns first to that proposal’s scope.  It clearly applies to all proceedings in this case, she says, not just to discovery.  Take the arraignment, when the 40-second delay was used to prevent one of the accused from mentioning the word “torture;” the government’s protective order would adopt that approach as a procedural rule.  The court thus must apply a rigorous, fact-intensive First Amendment test--the “compelling interest” test---before any delay can be imposed.  Judge Pohl understands Shamsi’s position, but doesn’t know how he can apply the First Amendment analysis without any evidence before him.  Does he have to consider potentially-secret evidence in open session, in order to figure out whether audio delays or closure is warranted?  He talks through the issue with Shamsi some more, and says that he would be inclined to interpret any protective order in light of the statutory and other rules governing classified materials.  That’s almost enough for the lawyer, who emphasizes that this protective order is uniquely bad---vastly more restrictive than protective orders entered in federal prosecutions.  Of course, the order in Ghailani is perhaps a bit more similar to the government’s plan here, she acknowledges.  And yet Ghailani’s did not have the same closure provision as that at issue here, in any case was not challenged on constitutional grounds. (Pause: the Chief Prosecutor reports that, lo and behold, Khalid Sheikh Mohammed may have changed his mind, and now desires to come to court after all.) Shamsi then moves to paragraph 7 of the proposed order.  It would, she says, deem classified the defendants’ memories and experiences, including those about their treatment.  What if Khalid Sheikh Mohammed wants to describe his waterboarding?  The government amply and publicly has described that episode, for example, in memoranda exchanged among executive branch lawyers in 2005.  Yet the protective order, as written, would preclude KSM from testifying about topics that lawyers (and the public) know all too well.  Judge Pohl clarifies: so you think declassified information, such as the fact of KSM’s waterboarding, would be treated as classified under the government’s approach?  Yes, Shamsi says.  The court thus proposes to tweak the proposal, so as to cover currently classified matters.  Shamsi pushes back, insisting that the public indeed has a First Amendment right to know classified information, when the classification cannot be justified on constitutional grounds---as the classification of RDI information, forced upon the defendants against their will, cannot be.  Thoughts, memories and experiences, she adds, “belong to human beings,” and not to the government, when those humans aren’t in a trust relationship with the government.  To prevent discussion of those experiences would be simply unprecedented, especially when the government has no legal authority, under the Constitution or the Executive Order dealing with classified matters, to keep them secret.  It is a radical proposition, in Shamsi’s view---one that, if accepted, would damage these proceedings’ legitimacy.  She concludes by urging the court to reject the government’s proposed protective order, and departs the courtroom. Johanna Baltes stands for the prosecution and vigorously objects to the ACLU’s view, including its account of the Ghailani protective order---which plainly applied to all stages of the proceedings in that case, and happens to be standard fare for terrorism cases.  And the protective order here does not at all say “classified information requires closure of the courtroom,” or anything like that.  Instead, closure procedures for the commission are set by law--Rule 806, and Section 949d of the MCA.  Judge Pohl agrees: if I find that there’s classified material that must be used in court, then the government has options for how to do that, he says.  It is absolutely inflammatory for the ACLU to challenge our proposal, continues Baltes: the definition of “classified information” in Ghailani's protective order was substantively identical to the definition used by the government today, in that both specifically cover the defendants’ experiences in the CIA’s RDI program.  As for the 40-second delay, it is true that this isn’t used in other courts, but that mechanism ensures that more proceedings can be held on an open basis in this case, not less.  The court interrupts and asks about the government-forced-the-classified-information-on-the-detainees-and-yet-it-still-wants-to-still-keep-the-same-information-secret issue.  Baltes: well, we don’t seek a contractual relationship with the detainees, she says, as we do with cleared personnel.  And the protective order doesn’t limit attorney-client communications with respect to RDI information, either. On to constitutional standards cited by the ACLU.  The relevant commission rules, the prosecutor argues, incorporate factors announced by the Supreme Court in its Press Enterprises case.  That point made, she opts for repetition, no doubt for the sake of emphasis: simply because we talk about closures in our protective order doesn’t mean we seek blanket closures here.  Judge Pohl still wants to know more about voluntary disclosures of RDI information to uncleared personnel.  Baltes answers with more repetition, noting that the government isn’t seeking to create any clearance-like, non-disclosure-agreement-ish relationship with the accused.  The court again: no, the question is whether voluntarily release of classified RDI information must also relieve the defense of treating that information as classified during this case.  Baltes thinks not.  It is perfectly appropriate for the government, she argues, to conclude that RDI information is classified. The time has ticked down to our morning recess break; we’ll pick up in half an hour.