WASHINGTON — The judge in the military commission case against Khalid Shaikh Mohammed and four other suspected Sept. 11 plotters ruled that details of harsh interrogation techniques used on them would be kept secret during their trial, a decision that human rights advocates called an attempt to hide the fact that the men were tortured.
The order, signed by Army Col. James L. Pohl on Dec. 6 and made public Wednesday, represents a clear victory for U.S. military and Justice Department prosecutors in the opening round of pretrial disputes. The first and only trial in the Sept. 11, 2001, terrorist attacks could begin as soon as next year.
Prosecutors had wanted all information about the five men’s arrests and treatment at so-called black sites abroad to remain classified. Pohl agreed even though some government officials have acknowledged that Mohammed, for instance, was waterboarded 183 times after his 2003 capture in Pakistan. Waterboarding simulates drowning; many consider it torture.
Nevertheless, Pohl ruled that “enhanced interrogation techniques that were applied to the accused … including descriptions of the techniques as applied, the duration, frequency, sequencing and limitations of those techniques,” would remain classified. Nor will he permit the defendants or their attorneys to discuss those matters in legal papers or open court.
“Names, identities and physical descriptions of any persons involved with the capture, transfer, detention or interrogation” of the accused will not be released, he said, nor will any “information that would reveal or tend to reveal the foreign countries” where the suspects were held before their transfer to the prison at the U.S. Naval Base at Guantanamo Bay, Cuba.
Pohl approved a 40-second audio delay in future proceedings to further protect classified information.
His “Protective Order No. 1" marks one of the most significant rulings in a case with worldwide interest in how the U.S. handles terrorism suspects as families await justice for nearly 3,000 loved ones killed in the airliner attacks at New York City’s World Trade Center, the Pentagon outside Washington and a farm field in western Pennsylvania.
Defense lawyers, the American Civil Liberties Union and a group of news organizations — including the Tribune Co., owner of the Los Angeles Times — had urged the judge to permit disclosure of this information.
“We’re profoundly disappointed,” said Hina Shamsi, an ACLU lawyer, adding that she would probably appeal the protective order. “The government wanted to ensure that the American public would never hear the defendants’ accounts of illegal CIA torture, rendition and detention, and the military judge has gone along with that shameful plan.”
Eugene Fidell, a military law expert at Yale Law School, said many would view the ruling as the government’s attempt to try the men in secrecy despite new military commission safeguards under the Obama administration that promised transparency.
“I’m quite uncomfortable with rulings that are this sweeping,” he said, “and military law on this subject is not friendly to blanket orders. It’s supposed to be done with a scalpel rather than a meat cleaver.”
He added that even if the complex trial opened in 2013, it would come 12 years after the attacks.
“We’ve all been drumming our fingers on the table for this train to leave,” he said. “The length of time for the wheels of justice to turn on these prosecutions is scandalous and deeply upsetting to the families of the victims.”
But Army Lt. Col. Todd Breasseale, a Pentagon spokesman, said the order detailed the law and reasoning the judge applied after carefully reading legal briefs and hearing oral arguments. And he said it mirrored how classified information was routinely kept out of federal courts in the U.S.
“He has done what all courts do to responsibly handle national security information while also ensuring both that the accused will receive a fair trial and that the proceedings will be as open and public as possible,” Breasseale said.
Along with Mohammed, the alleged Sept. 11 mastermind, the other defendants are Ramzi Binalshibh, the alleged plot cell manager; Walid bin Attash, an alleged Al Qaeda training camp steward; and two alleged Al Qaeda financiers, Mustafa Ahmed Hawsawi and Ammar al Baluchi, also known as Ali Abdul Aziz Ali.