The American Civil Liberties Union (ACLU) filed a petition with the U.S. Court of Military Commissions Review appealing a Guantánamo military judge’s order allowing the government to censor any testimony that touches on the torture and abuse of detainees in U.S. custody.
The trial at issue here has been plagued by problems including the accusations of intentional censorship when the audio feed was cut and accusations from the defense alleging that the U.S. government is spying on them and violating attorney-client confidentiality.
The ACLU filed the petition (PDF) asserting the public’s First Amendment right to open trials which they claim has been violated by the protective order issued by Military Judge Col. James Pohl in December.
While the petition was filed late February 21, 2013, it was only made public this afternoon “after undergoing a security review by the government,” according to the ACLU’s press release.
Pohl’s order contains provisions that allow for the categorical censorship of any testimony from the defendants that touches on their personal experiences and memories of “enhanced interrogation techniques,” rendition and detention by the Central Intelligence Agency (CIA) on the grounds that it was classified.
Pohl’s order also legitimized the continued use of a 40-second delay on the audio feed of the proceedings, further allowing for censorship of the trial.
“The judge’s decision to keep testimony about torture secret did not even mention the American public’s First Amendment right of access to the Guantánamo commissions, let alone apply the high standard that must be met before testimony is suppressed,” said Hina Shamsi, director of the ACLU’s National Security Project.
“The government’s claim that it can classify and censor from the public a criminal defendant’s personal experience and memories of CIA-imposed torture is legally untenable and morally abhorrent,” Shamsi continued.
“Even if the government somehow had that Orwellian classification authority, copious details about the CIA’s torture and black-site detention program are already public knowledge, and the government has no legitimate reason to censor the defendants’ testimony about their own memories of it,” Shamsi said.
The government’s request last year to classify the testimony touching on torture and other experiences claimed that any statements made by the defendants about their “exposure” to the CIA detention and interrogation program can be withheld from the public because they are classified as “sources, methods and activities” of the U.S.
The ACLU has challenged other aspects of the government’s handling of this trial.
In May of last year, the ACLU filed a motion “asking the commission to deny the government’s request and to bar a delayed audio feed of the proceedings, or, in the alternative, promptly release an uncensored transcript.”
While a group of 14 major press organizations also filed a motion (PDF) supporting the media’s First Amendment right to access the proceedings of the commission.
That motion “was denied by the judge as well, and they have also challenged the protective order,” according to the ACLU.
The government must now respond to both cases by March 6.
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