Can the Public Really Access “Open” Guantanamo 9/11 Hearings?

By Whitney-Ann Mulhauser

On Monday morning, the military commissions at Guantanamo Bay held yet another painfully slow hearing in the 9/11 case, bogged down in procedural issues that wouldn’t be a question in federal courts. I travelled to the Fort Meade U.S. Army base movie theatre to observe the hearing through a grainy feed.

The morning’s arguments focused on the court transcript from the October 30, 2015 hearing, and whether the government could unilaterally redact a transcript after it was published on the commission’s website. The October hearing was open to the public and streamed to various locations, including Fort Meade.

Like all of the public hearings, the hearing on October 30, 2015 was on a forty second delay, giving the commission the opportunity to censor anything revealed in open court considered classified. The “red light,” which cuts the feed to the public, was never pushed on October 30, 2015, nor did the prosecution object to any of the testimony given that day as classified.

At the time, the October hearing was just like any other day in “open” court at Guantanamo Bay. After the hearing, an “unauthorized unauthenticated” transcript of the hearing was posted on the commission website by the government. This version is not reviewed or signed by the commision judge.

Attorneys from both sides—as well as the press and the public—rely on these transcripts to know what happened during the hearings. In fact, unless the press reports on the hearing or you personally travel to Fort Meade to watch the video feed of the trial, these transcripts are the only way for the public to learn what goes on during the hearings. The transcripts are a critical check on the 9/11 case hearings and the military commissions generally.

At the heart of defense counsels’ argument was the fact that the government, without judicial review, unilaterally took the transcript from the open hearing that was already publicly available online and redacted part of the transcript. These redactions removed information already spoken in open court, which anyone viewing the hearing could have repeated and disseminated at will, just as I am in this post.

Defense counsel argued that redacting the transcript in this way violated the defendants’ First and Sixth Amendment rights, that what is said in open court is public property, that a defendant has a right to a public hearing, and that the government waived its right to object because it did not object during the hearing. Defense counsel asked that if the judge did not accept the “raise it or waive it” argument, then the judge should require the government to petition the commission for permission to redact a publicly released document.

According to defense, petitioning the commission would ensure that the government cannot act unilaterally to remove a transcript of a public hearing and would require the government to justify its reasoning for classifying and redacting a document.

The prosecution argued that Military Commission Regulation 19(e) permits the government to later change, in this case redact, a transcript that was already publicly released. The government also argued that an “official classification authority,” rather than the judge, is the appropriate mechanism to classify documents because, according to the government, the transcript is not a judicial record. The government noted that the process is subjective, citing the fact that the transcript was first redacted at eighteen percent and later the redaction was reduced to just six percent of the transcript.

The commission literally spent hours listening to arguments from both sides over the proper procedure for how to handle transcripts from open hearings that are later deemed partially classified. The commission procedures and rules are unsettled at best and sometimes changed during a single argument. Meanwhile, Article III federal courts routinely deal with classified and other sensitive information without issue.

For example, the Classified Information Protection Act (CIPA), Silent Witness Rule, closed courtrooms, in camera review, and sealed transcripts are a few regularly used tools to accommodate sensitive and classified information. These rules have tests the court must apply to balance the interests of the defendant and the prosecution, ensuring that constitutional rights are not sacrificed in the name of national security.

In fact, counsel for both sides regularly referenced CIPA and relied almost exclusively on federal court precedent to support their arguments. Only once in the three hours did anyone mention a military commission case. If the arguments are based on federal court precedent and the procedures time-tested in Article III courts, it again begs the question: shouldn’t these cases be tried in Article III federal courts, where constitutional protections are established and we already know we can accommodate classified information and national security issues?

After three hours, multiple procedural issues, and rules seemingly written and re-written during the session, the motion was eventually tabled. The rest of the arguments will be heard in a closed session because one defense attorney wanted to read the unredacted portion of the transcript—the portion already available online—in open court. The irony was not lost on the handful of people observing the hearing from the Fort Meade movie theater.

For now, if you really want to know what happens during an “open” hearing for the 9/11 trials at Guantanamo Bay you have to go to Ford Meade and watch the delayed video feed.

Yesterday morning, the Obama Administration released its plan to close the detention facility at Guantanamo. One of the three avenues of efforts it outlines involves “continuing with ongoing military commissions prosecutions.” It acknowledges, however, that the litigation of complex pretrial matters in the military commission system undermines its efficiency, and the administration is considering legislative changes to remedy efficiency issues. The administration is also considering the possibility of trying the remaining detainees in Article III courts, whose track record proves they are more than capable of handling terrorism cases.

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Published on February 24, 2016

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