Monitor Outside Gitmo Tribunal Has Power to Censor Proceedings Without Judge’s Knowledge
By: Kevin Gosztola, Firedog Lake
Tuesday January 29, 2013 12:32 pm
The Guantanamo war court was deciding whether to go into a closed session yesterday. David Nevin, who is representing 9/11 suspect, Khalid Sheikh Mohammed, was speaking in court about the decision to argue some of a motion involving evidence of CIA black prison sites. The audio feed went off for three minutes and court was off-record for about three minutes.
Judge Col. James Pohl noted, “The 40-second delay was initiated, not by me. I’m curious as to why.” Nevin had simply been reading the caption to an unclassified motion. “If you don’t feel we can discuss this now, let me know, but I’m just trying to figure out.” The government wanted to explain what happened to the judge in a secret session.
Nevin addressed the court, “I would like to know who has the permission to turn that light on and off, who is listening to this, who is controlling these proceedings, or controlling that aspect of these proceedings.” He added, “I was under the impression that the [court security officer] was, commanded that light in this process.”
Cheryl Bormann, the defense counsel for Walid bin Attash (9/11 suspect), wished to state for the record that Nevin has been repeating the name of a defense motion but she decline to say it for fear of setting off the censor again. Navy Commander Walter Ruiz, who is representing Mustafa al-Hawsawi (9/11 suspect), told the judge, “The main concern is that moving forward from this point forward we know there is another body or party who is in control of this proceeding in turning that light on and off.”
“Before we proceed any further,” he added, “We can only assume that maybe they are monitoring additional communications, perhaps when we are at counsel table. We know we have green lights that have the ability to record. We think this is an answer and question we have to have precedent to proceeding with this commission.”
Military Claims to Have Released Portion of Gitmo Tribunal Proceedings That Was Censored
By: Kevin Gosztola, Firedog Lake
Wednesday January 30, 2013 10:36 am
What was said in the exchange should appear in the transcript, but it appears something was said in that minute before the feed was restored that the government does not want to add into the transcript.
The military now claims that the transcript was “restored,” but if it was recording discussion of the censorship, that should be in the public record and not merely summarized. The decision to censor was startling for not just the press but also the judge, as it showed that some outside body has a person who is able to interfere in proceedings whenever they choose without notifying the judge prior to censoring the proceedings.
This person-an original classification authority (OCA), as the government revealed-likely works in cooperation with the CIA and is tasked with ensuring that even the tiniest amount of information on the CIA’s Rendition, Detainee & Interrogation (RDI) program is not heard by the press. The episode shows the OCA may censor unclassified language. There are details on the RDI program in the public record.
If Mohammed or another 9/11 suspect describes their treatment in CIA custody and that happened to be in the CIA Inspector General report, will the OCA be interfering again? The whole entire episode raises serious questions about the military commission’s claimed commitment to transparency and fairness.
All That’s Wrong With the Guantanamo Trials
By Andrew Cohen, Esquire
at 4:11PM January 30th, 2013
(W)hat makes it such an important moment in the sorry history of the Guantanamo tribunals– was that even the presiding judge, Army Col. James Pohl, didn’t know who had blocked the feed on Monday– or why. He had lost control over his own courtroom. Later that day, in open court, he said: “If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation, then we are going to have a little meeting about who turns that light on or off.” That was on Monday. On Tuesday, after conducting an investigation into the episode, Judge Pohl declared that the feed should not have been turned off-the defense attorney had merely mentioned “the caption in a particular appellate exhibit that is unclassified”– but the judge did not disclose to the public who turned off the feed or why. Later, we learned that the feed was disrupted by the “original classification authority,” most likely the CIA.
The idea that a trial judge has control over his courtroom is about as sacrosanct a notion in American law as you can find. And even though military judges traditionally have had to serve conflicting masters (the law, their superior officers, etc.) the idea that a litigant would have the power to control the courtroom without the judge’s knowledge or consent goes to the heart of the problem with our current tribunals. A trial judge who does not have the authority to control his own courtroom, who is subject to the whims of the very officials whose charges against the detainees must be fairly weighed, cannot be the sort of independent judge which the Constitution requires and which justice demands. It’s not Judge Pohl’s fault. By Congress, by the Pentagon, by the Obama Administration, by the CIA, he’s been dealt a hand no truly independent judge could play. That’s just another big reason why these tribunals are doomed to fail, in the court of world opinion if not before the United States Supreme Court, no matter how many convictions they ultimately gin up.