Interrogation Testimony At Issue in Terror Hearing
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL.
17 October 2012
The Wall Street Journal Online

GUANTANAMO BAY, Cuba—A government censor at the terror prosecution here assigned to prevent disclosure of secret information briefly blocked court observers from hearing a defense attorney Wednesday as he laid out a scenario involving beatings and chaining people to the ceiling.

Lt. Cmdr. Kevin Bogucki, representing Ramzi Binalshibh, one of the five defendants accused in the Sept. 11, 2001, attacks, was arguing against the government's motion to impose a secrecy order over his client's words when the censor cut the audiovisual feed to journalists, legal observers and relatives of victims following the hearing at the U.S. Naval Station here, most of them outside the courtroom.

A 40-second delay allows censors to interrupt the feed before spectators hear it.

The battle over the disclosure of interrogation tactics came as one of the detainees waterboarded by the Central Intelligence Agency, accused Sept. 11 mastermind Khalid Sheikh Mohammed, unleashed a five-minute rant against the U.S. war on terror.

The audiovisual feed was restored after about two minutes. The military judge, Col. James Pohl, ruled that the censor had overreacted, mistaking Cmdr. Bogucki's "generic discussion" for reference to a specific technique used by the U.S. He directed Cmdr. Bogucki to repeat his remarks for spectators.

The censor also once cut the feed at the defendants' May arraignment, preventing observers from hearing a defense attorney utter the word "torture." The military judge later ruled that word wasn't classified, and it was added to the public record.

The government's proposed secrecy order would cover a broad range of information regarding the capture and detention of the defendants, including "without limitation observations and experiences of the Accused with respect to....the enhanced interrogation techniques that were applied" to them.

During the George W. Bush administration, so-called high-value detainees were subjected to brutal interrogation methods including waterboarding. The government has said that Central Intelligence Agency operatives waterboarded Mr. Mohammed 183 times.

Prosecutor Joanna Baltes, a Justice Department lawyer on loan to the Pentagon, told Col. Pohl that the Military Commissions Act required him to issue a secrecy order at the government's request, though he was free to set its parameters. Congress enacted protections for classified information "to make sure that the government could prosecute individuals without compromising national security," she said.

At military commission proceedings this week, defense attorneys argued the government's authority to classify information can't extend to the experiences and memories of private individuals on whom such abuse was involuntarily inflicted.

The government has described the defendants as "participants" in the CIA's program of renditions, detentions and interrogations. It says the five lack authorization to disclose classified information they thereby were provided.

"Your honor, if I beat you, I'm not 'providing you information.' If I chain you to the ceiling, I'm not 'providing you information.' I'm doing something to you," Cmdr. Bogucki said after he was directed to repeat his argument for the public. "Your memory [of a personal experience] cannot be classifiable."

Moreover, he continued, "to classify our clients as participants in the [CIA] program would be" like classifying the victim of an assassination "as a participant in an assassination program."

As Cmdr. Bogucki argued, Mr. Mohammed raised his hand, indicating a wish to speak. Col. Pohl and attorneys then discussed whether the judge was required to conduct an additional hearing before Mr. Mohammed spoke, lest he disclose classified information.

After a break, Mr. Mohammed began a five-minute rant apparently provoked by a prosecutor's earlier reference to the 2,976 people killed in the Sept. 11. attacks.

"When the government feels sad for the death or killing of 3,000 people who were killed on Sept. 11, we also should feel sorry that the American government that is represented by [chief prosecutor Brig.] Gen. [Mark] Martins and others have killed thousands of people," he said through an interpreter—whom he corrected, speaking in English: "Millions," Mr. Mohammed said, not thousands.

Mr. Mohammed wore a camouflage hunting vest over traditional dress, which his attorney said reflected his role as a guerrilla who fought the Communist government that ruled Afghanistan in the 1980s and '90s. Tuesday, Col. Pohl ruled the defendants were free to dress much as they pleased while in court. Mr. Mohammed initially decided to skip the session, but changed his mind and entered the courtroom about an hour after proceedings began. One other defendant attended, Ali Abdul Aziz Ali, while three others chose to remain in their cells.

Mr. Mohammed complained that the government used an elastic definition of national security.

"Many can kill people under the name of national security and to torture people under the name of national security and to detain children under the name of national security, underage children," Mr. Mohammed said. As The Wall Street Journal reported days after Mr. Mohammed's capture in 2003, U.S. agents took custody of his school-age children, and could use threats to them as an interrogation method.

"I don't want to be long but I can say that the president can take someone and throw him in the sea in the name of national security," Mr. Mohammed said, possibly referring to the disposal of Osama bin Laden's corpse. "He can also legislate the assassinations, under the name of national security, of American citizens," he said, apparently referring to the Obama administration's targeted assassination program that last year killed U.S.-born al Qaeda leader Anwar al-Awlaki.

"Your blood is not made of gold and ours is made out of water. We are all human beings," Mr. Mohammed concluded.

Col. Pohl let the defendant finish but clearly was displeased with the remarks.

"This is a one-time occurrence," he said. "No matter how heartfelt, I'm not going to entertain personal comments by any accused about the way things are going."

Earlier, lawyers representing 14 news organizations, including Dow Jones & Company, publisher of The Wall Street Journal, and the American Civil Liberties Union also appeared before Col. Pohl, arguing that constitutional guarantees of press freedom and public access to court proceedings limit the government's power to keep evidence secret.

Col. Pohl said he would issue an order on trial secrecy rules later Wednesday and Thursday to address complaints by defense lawyers that mold and rodent droppings had contaminated their office space.

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