A New Secrecy Issue at GTMO

A new secrecy issue has arisen during the Military Commission hearings in Guantanamo.

Judge Pohl, presiding over the Military Commission prosecution of Al Nashiri, alleged to be the Mastermind behind the Cole bombing in 2000, had ordered that the details of his treatment while in CIA custody be shared with the defense. The order required that the information be available to the defense under the same requirements as the other classified evidence already provided to them.
The prosecution has recently argued that Judge Pohl’s order should be set aside and the details of the treatment of Al Nasir remain secret from the al-Nashiri defense team. The prosecution’s basis for setting the order aside was because the Senate Intelligence Committee summary might reveal some of those same information and perhaps obviating the need for the disclosures to the defense or at least permit a new review by Judge Pohl after the Senate Intelligence Committee response plays its way out.
Currently there is no announced determination of when the Senate Summary will be released. It is currently undergoing a classification review by the Department of Justice. At present there is no date for the report to be released or any knowledge of the extent if any that the report may contain the information that the defense has sought and has previously been granted by Judge Pohl.
Al Nashiri is scheduled to be the first Military Commission trial of any of the detainees brought to Guantanamo after the CIA Dark sites were closed. The trial is currently scheduled to begin in January.
The prosecution is seeking the death penalty and the defense intends to have the jury consider the extent to which the government treated its client before he arrived in Guantanamo. That treatment, according to the New York Times report by Charles Savage that “the C.I. A. inspector general called his the ‘most significant’ case of a detainee who was brutalized in ways that went beyond the tactics approved by the Bush administration, including being threatened with a power drill.” An expert on treatment of torture called by the defense has already stated that Al-Nashiri had been subjected to physical, psychological and sexual torture The defense considers the manner in which he was tortured during his detention in the CIA dark sites to be relevant to whether or not the death penalty should be impose.presiding over the Military Commission prosecution of Al Nashiri, alleged to be the Mastermind behind the Cole bombing in 2000, had ordered that the details of his treatment while in CIA custody be shared with the defense. The order required that the information be available to the defense under the same requirements as the other classified evidence already provided to them.
The prosecution has recently argued that Judge Pohl’s order should be set aside and the details of the treatment of Al Nasir remain secret from the al-Nashiri defense team. The prosecution’s basis for setting the order aside was because the Senate Intelligence Committee summary might reveal some of those same information and perhaps obviating the need for the disclosures to the defense or at least permit a new review by Judge Pohl after the Senate Intelligence Committee response plays its way out.
Currently there is no announced determination of when the Senate Summary will be released. It is currently undergoing a classification review by the Department of Justice. At present there is no date for the report to be released or any knowledge of the extent if any that the report may contain the information that the defense has sought and has previously been granted by Judge Pohl.

The prosecution is seeking the death penalty and the defense intends to have the jury consider the extent to which the government treated its client before he arrived in Guantanamo. That treatment, according to the New York Times report by Charles Savage that “the C.I. A. inspector general called his the ‘most significant’ case of a detainee who was brutalized in ways that went beyond the tactics approved by the Bush administration, including being threatened with a power drill.” An expert on treatment of torture called by the defense has already stated that Al-Nashiri had been subjected to physical, psychological and sexual torture The defense considers the manner in which he was tortured during his detention in the CIA dark sites to be relevant to whether or not the death penalty should be imposed.

Professor Mark Denbeaux, Director
Center for Policy & Research
 

Bergdahl Brought Home in Prisoner Exchange

Over the weekend, news broke that the United States government had made the decision to exchange five Guantanamo Bay prisoners for Army Sgt. Bowe Bergdahl roughly five years after his capture by Taliban forces in Afghanistan. While many have applauded the effort to bring home a captured member of the American armed forces, not everybody has been so quick to label this course of action “correct.” Continue reading

The NSA Does Not Equate to An Orwellian Society

Earlier this week, my colleague and co-founder of this blog, Paul Taylor, published a post highlighting the role of the media in propagating misconceptions of veterans’ mental health. In yet another example of the media influencing the average citizens’ perceptions of current events and hot topics, a study was recently released identifying George Orwell’s Nineteen Eighty-Four as the only literary reference used to help explain NSA surveillance, a hot topic in the media over the course of the past year. Continue reading

Federal Courts v. Military Commissions: The Debate Isn’t Over

After last week’s conviction of Bin Laden’s son-in-law Sulaiman Abu Ghaith in Federal Court, Attorney General Eric Holder issued a statement praising the trial as a demonstration that Federal Court is the proper venue for high-profile terrorism cases. As I cited in a post earlier this week, Holder said of the trial:

“We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other cases involving terrorism defendants. It would be a good thing for the country if this case has the result of putting that political debate to rest. This outcome vindicates the government’s approach to securing convictions against not only this particular defendant, but also other senior leaders of al Qaeda.” Continue reading

Abu Ghaith Convicted

Sulaiman Abu Ghaith, Bin Laden’s son-in-law, was convicted this week of conspiring to kill Americans and a series of other terror-related charges.

Abu Ghaith, was indicted nearly a year ago in The Southern District of New York, just a few blocks from the World Trade Center site, for his role in the September 11th attacks and as a senior associate of Bin Laden. Since news of Abu Ghaith’s indictment was first released last March, there has been a great deal of debate regarding whether SDNY was the appropriate forum for the trial. While many believed SDNY could hold a fair, safe trial for such a high-profile case, many opponents believed a military commission was a far more appropriate venue. Continue reading

Al Nashiri Before a Military Commission at Gitmo

This guest post was written by Charles R. Church, and is drawn from his copyrighted e-book titled My Week at Guantanamo’s War Court, which is available on amazon.com.

 

My excitement ran high when Mark Denbeaux phoned to tell me I would be heading to the Guantanamo Naval Base for a week, for I had been studying, writing and talking about both its detention facility and its military commissions for years. Now I would be attending, as a journalist and observer, pretrial proceedings in the military tribunal capital prosecution of abd al Rahim Hussayn Muhammad Al Nashiri, the Saudi claimed to have presided over bin Laden’s “boats operation,” for which he had planned three attacks on foreign ships, including the devastatingly lethal one in 2000 on the USS Cole, the destroyer fueling in Aden Harbor in Yemen. Continue reading

Secret Periodic Review Board Hearings Limit Transparency at Guantanamo Bay Detention Center

This week, the Pentagon began notifying would-be observers of the first Guantanamo Periodic Review Board hearing, scheduled for November 20th, that the hearing (and all subsequent hearings) will be held in secret. The announcement highlights the challenges government officials face as they try to balance their commitment to transparency with the perceived national security risks associated with public hearings. Given the amount of classified information addressed in these hearings, it is impossible for the government to ever achieve true transparency throughout this process, leaving the public to question whether our country’s purported commitment to justice is being upheld at Guantanamo. Continue reading

Dispatch from Guantanamo Bay: US v. Mohammed

“It’s a Mixture of Kafka, Machiavelli, Catch 22, and George Orwell’s 1984.  It just depends on the day” – Major Jason Wright Defense Counsel for K.S.M.

            Last week, I had the opportunity to travel to Guantanamo from October 22nd through 25th to observe the Military Commission proceedings for United States v. Khalid Sheikh Mohammed et. al. Perhaps the most appropriate word to describe my observations is frustration.  Regularly during the week, the observable liberties afforded to each of the accused, including prayer time in the courtroom, freedom of attire, and remaining unshackled were only contradicted by the accusations of intentional sleep deprivation, confiscated attorney-client privileged material, and force-feeding. Furthermore, the interpretation of the Military Commissions’ rules and their applications were consistently debated, particularly with regards to how they should be implemented when other laws, such as international laws, hold inconsistent stances. Continue reading

A Week at Guantanamo Bay

In August of 2013 I had the opportunity to travel to Guantanamo Bay to represent Seton Hall Law’s Center for Policy and Research as an NGO observer at the 9/11 trials.  In particular, I was able to watch one of many pretrial hearings in the case of the United States v. Mohammed, in which Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali (AKA al-Baluchi), and Mustafa Ahmed Adam al Hawsawi are named as defendants.  The five detainees are accused of plotting the 9/11 attacks that lead to the deaths of nearly 3,000 people in New York, Virginia, and Pennsylvania.

Continue reading

Bradley Manning Acquitted of Aiding the Enemy

Yesterday, Col. Denise Lind, the military judge presiding over the Bradley Manning case at Fort Meade, acquitted Manning of the charge of aiding the enemy.  The charge was the most serious that Manning faced, and almost certainly would have led to life in a military prison.  For those of you unfamiliar with Bradley Manning, he is the Private First Class who was on trial for releasing the data published by Julian Assange on Wikileaks.  Because of that, the case has received a great deal of attention from both the media and human rights groups who are attempting to find a balance between government secrecy, transparency, and civil liberties.

Bradley Manning’s acquittal on this charge is not exactly surprising given that it was unprecedented for the government to bring such a charge in a leak case.  But still, the government’s argument made some sense if you look at the letter of the law.  Luckily, common sense seems to have prevailed.  I don’t believe (and I certainly don’t think the government could prove) that he intended to aid the enemy, and a vast majority of the information he leaked probably did not aid al-Qaeda or other terrorist groups in any way.  On top of that, there seems to be a lot of questions regarding whether or not most of the information should have been classified in the first place.

That’s not to say that Bradley Manning’s actions weren’t worthy of punishment.  Any way you look at it, it’s probably not a good policy to allow military personnel with security clearance to release classified information.  But that’s where the other charges come into play.  Manning is by no means off the hook.  Yes, he beat the most serious and highly publicized charge against him, but he was still convicted of a myriad of other charges.  Manning was still convicted of six violations of the Espionage Act of 1917, as well as most of the other 22 charges lodged against him (10 of which he has already plead guilty to).  He faces a maximum of 136 years in prison, although he probably won’t receive the maximum sentence due to the plea bargain I mentioned.  Regardless, it’ll probably be pretty hefty.

A statement put out by Reps. Mike Rogers (R-Mich.) and C.A. Dutch Ruppersberger (D-Md.), both members of the House Intelligence Committee, was cautiously optimistic but also a little confusing to me.  Here it is:

“Justice has been served today. PFC Manning harmed our national security, violated the public’s trust, and now stands convicted of multiple serious crimes. There is still much work to be done to reduce the ability of criminals like Bradley Manning and Edward Snowden to harm our national security. The House Intelligence Committee continues to work with the Intelligence Community to improve the security of classified information and to put in place better mechanisms to detect individuals who abuse their access to sensitive information.”

My confusion here comes from their claim that they are working hard toward securing classified information and our national security.  It seems to me like their plan is to bring the hammer down on anyone like Bradley Manning who leaks information to deter others from doing the same.  I know that leaking classified information is different than murder in that it’s usually a planned, calculated act.  The leaker usually knows there’s a good chance he might get caught, so I can see the logic behind a deterrence theory argument.  But I highly doubt anyone planning to pull a Bradley Manning-esque stunt doesn’t already know that the crime carries a serious penalty.

Maybe instead of throwing the book at Bradley Manning, who seems to have had serious concerns about the military’s policies, we should take a look at overhauling our classification systems.  And maybe we shouldn’t be handing out security clearances like candy.  Politicians should absolutely go after people like Bradley Manning and Edward Snowden.  Leaking government secrets should be punished.  But the politicians should at least own up to the fact that this is partially their fault.  If we start paying attention to what we classify and who we give security clearance to, we won’t find ourselves in these situations.

Chris Whitten, Research Fellow
Center for Policy and Research