JURIST - Paper Chase: ACLU seeks access to 9/11 trial testimony

[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Wednesday filed a motion [text, PDF] in the Guantanamo Bay [JURIST backgrounder] military court seeking access to hear what methods the Central Intelligence Agency (CIA) [official website] used when interrogating the five alleged 9/11 [JURIST backgrounder] conspirators. The ACLU acknowledged that the US government will likely ask, if they have not already done so, that the prisoners' knowledge of their imprisonment in Department of Defense (DOD) [official website] facilities remain classified. They expect the government to ask for a 40-second delay in the taping of proceedings so that an intelligence officer can cut off the feed whenever a prisoner discusses his imprisonment or interrogation. The ACLU argues that this practice violates the First Amendment and that the public has a constitutional right to access information about the operation of the government. The government will also likely argue that it has the power to classify this information through Executive Order No. 13, 526 [text, PDF].

Executive Order No. 13,526 provides a comprehensive system for classifying national security information, and contains four prerequisites: (1) the information must be classified by an "original classification authority"; (2) the information must be "owned by" or "under the control of" the government; (3) the information must fall within one of the authorized withholding categories under this order; and (4) the original classification authority must determine that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security; and must be able to identify or describe the damage."

The ACLU also indicated that in order for information to be properly classified, it must be included in an authorized withholding category found in the Executive Order. The two provisions they believe the government will rely upon are: "intelligence activities (including covert action), intelligence sources or methods" and "foreign activities of the United States."

In April the chief US military judge at Guantanamo, Army Col. James Pohl, assigned himself [JURIST report] to preside over the tribunals of five alleged plotters of the 9/11 terror attacks, scheduling a hearing for May 5. Last month the DOD referred charges [JURIST report] to Pohl against the five accused 9/11 plotters. The DOD announced last May that it had sworn charges against the five men [JURIST report] for the 9/11 attacks. Last April US Attorney General Eric Holder [official website] announced that Khalid Sheikh Mohammed and the four others would be tried by a military commission [JURIST report] after the Obama administration abandoned attempts to have the 9/11 suspects tried in civilian courts. Holder had wanted the accused be tried before a federal civilian court but referred the cases to the DOD after Congress imposed a series of restrictions [JURIST reports] barring the transfer of Guantanamo detainees to the US.