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A 9/11 Judge Revises And Redacts The Record

3 members of the U.S. Army run in front of the Honor Bound sign at Guantanamo's Camp Delta
Guantanamo Bay, Cuba, 2010. Photo by Navy Mass Communication Specialist 3rd Class Joshua Nistas,
courtesy the U.S. Army.

The Congressional Record is the official transcription of debates that occur on the floor of Congress. The Record lets you read whatever your elected representatives say there – and a lot of things they don’t say, too.

The ability to “revise and extend” remarks made on the floor is a prized privilege, especially in the House of Representatives. Nowadays, the nature of these official but never-actually-uttered pronouncements is clearly disclosed in the printed record, indicated by a bullet or an alternate typeface. Even if this indication were absent, omnipresent TV cameras record the actual debates for internet posterity, allowing a dedicated observer to compare the transcript to the original recording.

But for many years, the Congressional Record transcripts were, to a large extent, a work of fiction – and everyone who might possibly have cared knew this. Not only were many of the reported remarks never actually spoken, but sometimes things that were said vanished into thin air when they later proved to be regrettable to the author. (We can only wonder how badly the current presidential candidates wish they had such power to edit their past comments.)

We are not accustomed to such a lack of transparency in the judicial branch of our government. Of course it is common for court records, or even entire court files, to be sealed and kept from public view. And there are certain courts – the United States Foreign Intelligence Surveillance Court, as well as many juvenile and family courts – that are off-limits to the public altogether. Sometimes a presiding judge will clear a courtroom in order to hear confidential testimony or to protect the identity of a witness; more often such matters will be heard in the judge’s private chambers. But notwithstanding all these limitations, when something happens in open court, it is generally treated as a public record.

But not at Guantanamo Bay, where Army Col. James L. Pohl is presiding over pretrial proceedings in the case against alleged 9/11 mastermind Khalid Sheikh Mohammed and four co-defendants.

The Guantanamo military commissions are tribunals created by President George W. Bush, and altered – in what was meant to be a reform – by President Obama. In the case of Mohammed and his co-defendants, the current proceeding has stretched on for more than four years, with a year-and-a-half break after a five-minute phone call by one of the defendants triggered a struggle between his legal team and the FBI. While the investigation did not result in any charges, the lead attorney had to dismiss five members of his team when he discovered they were passing information to the FBI behind his back.

Now that the hearings have resumed, members of the public hoping for a glimpse of what would normally be a matter of public record continue to wait largely in vain. Pohl recently rejected a challenge from news organizations that objected to after-the-fact redactions in the Pentagon’s transcript of open-court testimony. Reporters and other spectators must already listen to testimony on a 40-second audio delay, which allows a court security officer to kill the feed before any classified information gets through. However, in this particular five-hour stretch of testimony, that button remained unpushed.

Someone apparently second-guessed that decision at some point in the weeks between the hearing and the transcript’s release. According to the Miami Herald, about 18 percent of the transcript was covered by black redactions, effectively censoring the material after journalists and other observers had already heard and reported on it. After 17 media organizations jointly filed a legal challenge, the security personnel scaled their censorship back to only 6 percent of what had once been 100 percent available.

Pohl, in shooting down the news organizations’ protests, said that the occasional slip in classified information was inevitable in such a sensitive case. “The fact that classified information was inadvertently released and publically reported … does not necessarily make that information fair game for unbridled further public disclosure,” he wrote in his ruling. In other words, just because something had been publicly tweeted out to anyone with an internet connection doesn’t mean it isn’t still – somehow – a secret.

Pohl’s ruling backed up the Guantanamo prison commander’s assertion that the transcript “could be mined by those with intentions hostile to the United States and JTF-GTMO.” (This latter acronym is used to describe the mixed military and civilian staff working at the prison.) That is to say, information disclosed in the transcript about the treatment of prisoners before or after their confinement in Cuba, for example, could be used to whip up anti-U.S. feeling abroad or political sentiment at home about how we are going about protecting the nation and obtaining justice for 9/11 victims. As if this wasn’t happening with or without the benefit of the court transcripts.

The military tribunal’s credibility as a vehicle for justice has been compromised from the beginning and has only become more tenuous as the months and years pass without an actual trial. Defendants have had conversations with their lawyers monitored, and some attorneys have turned out to be feeding information to the FBI. Microphones were hidden in defense conference rooms in devices made to look like smoke detectors.

Even Pohl’s own autonomy was compromised; it turned out that, apparently unbeknownst to him, his courtroom’s audio feed was also subject to interception and cutoff by an “original classification authority,” in addition to the court security officer. Prosecutors knew this all along, but neither the judge nor the defense apparently did until the audio feed was shut down during a pretrial hearing. Perhaps surprisingly, given his recent stance on after-the-fact redaction, Pohl was reportedly furious about the interference by an unspecified officer or agency. We do not officially know what agency was involved, but the shutdown occurred during a discussion of CIA “black sites” overseas. You draw your own conclusion and I’ll draw mine.

Early in the Obama administration, the Justice Department wanted to put Mohammed and his co-defendants on trial in Manhattan, not far from where the World Trade Center towers came crashing down on that horrible day. This would have been the right venue – not just symbolically, but as a practical matter. The defendants would have received fair and largely public trials by an independent judiciary, and would have been judged by a jury of citizens from the region where the great majority of 9/11 casualties occurred. Neither the military chain of command nor the intelligence agencies would have exercised undue influence over the proceedings, though of course their concerns would have been recognized.

But fear and politics overruled good sense and faith in our judicial system. The result is this near-farce of an interminable proceeding, occurring far from our shores and out of sight, before a military judge whose headquarters was also attacked that day. In this forum, even what occurs in open court is subject to revision and curtailment, keeping the truth about what happened on and after 9/11 – or whatever version of it might eventually emerge – hidden from our view, although these proceedings are conducted in our name.

Even Congress eventually got the message that the public record ought to be both accurate and public. But the word hasn’t filtered down to Gitmo.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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