Top Secret Thoughts?

I was last at Guantanamo Bay in 2009. President Obama had issued an Executive Order to halt the military commissions, and I was on an early morning ferry to board a flight and leave Guantanamo for what, I hoped, would be the last time. As the boat cruised across the bay and the sun began to rise over Cuba, the driver cranked up the volume on an old tape of Patsy Cline wistfully singing “Someday.”

In retrospect, it was oddly prophetic. As the song goes, “Tho’ you don’t want me now, I’ll get along somehow.” Sure enough, Obama revived the tribunal after passing the Military Commissions Act of 2009. General Mark Martins is an architect of the 2009 law and the new chief prosecutor for Obama’s rebranded military commissions. He has publicly pitched the trial of Khalid Sheikh Mohammed and the other alleged 9/11 conspirators as a model of transparency and fairness, encouraging the media and observers like the Brennan Center to come and bear witness. But over the past four days of hearings, the view from the soundproof gallery was quite different.

Let’s talk about fairness first. The prosecution fought tooth and nail to prevent Mustafa al-Hawsawi from having a second lawyer who specializes in capital defense, arguing that one was sufficient — in the biggest and most complex terrorism trial in United Sates history. They also sought to disqualify a skilled military defense lawyer from participating in his case, citing a possible conflict of interest that the defendants waived. A charitable interpretation of these events might be that the government is motivated by the desire to have a trial that will withstand appeal. A less charitable one might be that the government wants a veneer of fairness rather than the real thing.

Turning to transparency, Wednesday morning began with the ACLU arguing eloquently against the government’s proposal to close the courtroom whenever classified information is discussed. Under long standing principles of constitutional law, neither the judiciary nor the First Amendment must reflexively give way to the executive branch whenever the executive claims that classified information should not be discussed in open court. Rather, the separation of powers and the constitution require the trial judge to make an independent determination that such a discussion would actually harm national security. When the “classified information” at issue is the defendants’ personal experiences in CIA’s infamous program of torture, rendition, and interrogation — which has been repeatedly plastered on the front page of national newspapers — it becomes difficult to see how that harm would occur.

The prosecution took an extreme interpretation of what can be classified and thus blocked much from public view, asserting that the defendants’ own memories and experiences of their torture are classified. In order for something to be classified information, however, it must be produced, owned, or controlled by the United States government. In this case, the defendants did not produce the CIA’s torture and rendition program, and ownership of people has been illegal in this country since 1865. This left the prosecution to argue that the defendants cannot speak openly of their torture because the government “controls” them by virtue of their imprisonment in Guantanamo and their inability to communicate with the outside world.

The argument quickly veered into the land of metaphysics as defense lawyers tried to obtain some clarity on what a detainee can say about his treatment at the hands of the CIA. Can the government really “control” an individual’s thoughts, memories, or feelings? Can we draw a neat line between one’s thoughts and the information that led to them? Does it matter that the detainees received this “classified information” involuntarily? When the New York Times printed classified details of the torture and rendition program above the fold, did the front page become a classified document? Are Times readers prohibited from publicly discussing what they read?

Of course not. Unlike government employees who hold a security clearance, the detainees who were subject to the CIA’s program did not agree to participate in the program or promise to keep secret the details of the classified “enhanced interrogation techniques” that were used on them. To say that they “participated” in this program or “received classified information” from the CIA is a perversion of the law and of the English language. They were tortured, plain and simple. But if the government were to take its own argument seriously, then the CIA agents responsible for disclosing this “classified information” to uncleared detainees should be susceptible to criminal prosecution — not for torture, but for the improper disclosure of classified information.

From President Bush to President Obama, we have gone from the surreal to the metaphysical — but we are still nowhere near transparency and fairness. You don’t need a security clearance to know that the CIA operated black sites in Poland and Romania where it secretly tortured detainees using waterboarding, sleep deprivation, and atrocious forms of psychological abuse; you just need to open the newspaper. If the prosecution is intent on opposing legitimate requests for defense resources, demanding closure of the courtroom at the hint of classified information, and imposing gag orders to prevent the disclosure of facts well known to the public, then it strains credibility to present these proceedings as either fair or transparent.