The military judge overseeing proceedings against five of
the men accused of planning the Sept. 11, 2001, attacks signed
an order designed to protect classified information that is
so broad it could prevent public scrutiny of the most important
trial at Guantanamo Bay, Cuba, according to lawyers and human
rights groups.
The protective order, which was signed on Dec. 18 by Judge
Stephen R. Henley, an Army colonel, not only protects documents
and information that have been classified by intelligence
agencies, it also presumptively classifies any information
"referring" to a host of agencies, including the
CIA, the FBI and the State Department. The order also allows
the court in certain circumstances to classify information
already in the public domain and presumptively classifies
"any statements made by the accused."
Three of the accused, including Khalid Sheik Mohammed, the
self-proclaimed mastermind of the 9/11 attacks, are defending
themselves and, under the order, anything they say during
the course of the trial could be shielded from the public.
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"These rules turn the presumption of openness on its
head, making what is perhaps the most important trial in American
history presumptively closed to the public and the press,"
said Jennifer Daskal, senior counterterrorism counsel at Human
Rights Watch. "If these rules applied in all cases, there
would be no such thing as an open trial in America."
Late Monday, the judge appeared to have second thoughts about
the breadth of the order. In an e-mail to both the prosecution
and the defense, he invited counsel to file briefs on whether
the protective order expands "the definition of 'classified
information' and the scope of protective orders generally
beyond that provided for in the [Military Commissions Act]
and other applicable legal authority?"
If so, the judge said, he wants to know what "modifications"
should be made to the order.
Prosecutors defended the wording of the order. It "is
standard language used in numerous other counterterrorism,
counter-espionage or habeas detainee cases in federal court
throughout the past nine years," said Col. Lawrence Morris,
chief prosecutor for the Pentagon's Office of Military Commissions.
"In fact, numerous cases have applied far more restrictive
language in their protective orders that we did not implement
here."
