Schwartz writes: "Three declassified documents clearly identify CIA as the
OCA for torture-related information at the Guantánamo military commission
proceedings."
Guantanamo trials court. (photo: Joe Raedle/Getty Images)
Documents Confirm CIA Censorship of Guantanamo Trials
By Mattathias Schwartz, The Intercept
15 August 16
On January 2013, during the military trial of five men accused of plotting
the 9/11 attacks, a defense lawyer was discussing a motion relating to the
CIAs black-site program, when a mysterious entity cut the audio feed to the
gallery. A red light began to glow and spin. Someone had triggered the
courtrooms censorship system.
The system was believed to be under the control of the judge, Col. James
Pohl. In this case, it wasnt.
The 40-second delay was initiated, not by me, Pohl said. He was referring
to the delayed audio feed, which normally broadcasts to the press and other
observers seated in the gallery. The gallery is cut off from the courtroom
by three layers of soundproof Plexiglas. Im curious as to why
if some
external body is turning the commission off under their own view of what
things ought to be, with no reasonable explanation, then we are going to
have a little meeting about who turns that light on or off.
Later, Pohl said the censorship was the work of an OCA, short for
Original Classification Authority. In the future, he said, no external
body would be permitted to unilaterally censor what was happening in his
courtroom.
Many have speculated that Pohls OCA is in fact the CIA. That speculation
is now confirmed with the release of three new documents by The Intercept.
The documents show the evolution of secret rules governing what is and is
not allowed to be discussed before the military court at Guantánamo.
All three of the declassified documents are marked Secret, and were
distributed to defense attorneys and Pentagon-employed courtroom-security
officers. The documents clearly identify CIA as the OCA for torture-related
information at the Guantánamo military commission proceedings.
Dean Boyd, who heads the CIAs public affairs office, referred questions
about the January 2013 censorship incident to the Pentagon. Lt. Col. Valerie
Henderson, a Pentagon spokesperson, declined to comment. I dont have
anything to offer you beyond what is written in [the court] transcript, she
said.
This page from a 2008 CIA guidance document designates as Top Secret the
treatment of detainees, their conditions of confinement, and certain
false allegations of torture which were later shown to have merit.
Another CIA spokesperson confirmed the dates of the guidance, which are not
given in two of the three documents.
The first guidance document is from spring of 2008.
The second document is from late spring or early summer of 2009.
The third document is from September 2011.
The Intercept obtained the documents through an ongoing Freedom of
Information Act lawsuit against the CIA and other federal agencies. Yale Law
Schools Media Freedom and Information Access Clinic is providing legal
representation for the request.
The term OCA is a placeholder that can refer to multiple agencies, but
with respect to the rendition and torture program, Guantánamo observers have
assumed for some time that it means the CIA. A defense lawyer asserted the
connection in open court, and it has previously been hinted at in several
other documents. At the end of January 2013, Judge Pohl issued a ruling
declaring that there would be no more outside censorship of the tribunals.
It is the judge that controls the courtroom, he said.
The courtrooms internal censorship system, including the Plexiglas and
audio delay, continues to this day. But assuming Judge Pohls order is
enforced, the CIA no longer has the power to decide when to cut the
courtroom audio, as it did in January 2013.
The Department of the Defense runs the courtroom, but CIA owns a lot of the
information, said attorney James Connell III, who is representing Ammar
al-Baluchi before the tribunal. Baluchi, whose torture at multiple overseas
black sites was depicted in the film Zero Dark Thirty, is one of five men
who stand accused of plotting the 9/11 attacks and now face the death
penalty.
What appears to be a 2015 version of a similar CIA guidance document was
released by OpenTheGovernment.org last year. Unlike the older guidance
documents released by The Intercept today, the sections addressing the CIAs
black-site and rendition programs are completely redacted.
The CIA calls its classification rules guidelines
to be applied
throughout the legal process. They are intended to provide the
Pentagon-employed court-security officers with general direction about when
national security information may be at issue,
triggering the need for
protection.
Much of what the CIA sought to keep out of open court effectively
constrained the detainees ability to give an account of their own torture
at the hands of the CIA and officials from other countries where they were
held.
At first, these prohibitions were broad, but they grew narrower over time.
The oldest guidance document, from 2008, prohibits talking about conditions
of confinement of detainees, and treatment of detainees although general
allegations of torture are unclassified. By this time, the CIA had released
three of the names of detainees subjected to waterboarding. Though the CIA
continues to insist those three were the only ones waterboarded, the claim
is tenuous at best. According to the 2008 guidance, no other detainee could
talk about waterboarding. Anyone who did, wrote the CIA, was lying, and even
the existence of those lies was secret.
Allegations of waterboarding by any detainees other than the three
are
false allegations and are TS//SCI, the guidance states.
In other words, even the alleged lies of other detainees who claimed to have
been waterboarded were designated Top Secret and Sensitive Compartmentalized
Information, a higher-level classification than Top Secret alone. And yet
many of these allegations, which the CIAs guidance kept out of the
tribunals for years, were later shown to have merit.
In effect, the government was making the chilling and breathtaking
assertion that it owned and controlled detainees memories of torture,
whether true or false, said Ashley Gorski, a staff attorney with the ACLU,
who reviewed the newly released guidance documents.
We stand by the document, Dean Boyd, director of the CIAs public affairs
office, wrote in an email.
The 2008 guidance identifies CIAs own Original Classification Authority
as having the power to declassify statements by detainees. Other officials
and agencies likely have some say as well. The 2011 and 2009 guidance say
that the president and director of National Intelligence can also declassify
information related to the torture program; the 2008 guidance suggests that
the power was delegated even further.
Seventy-six men are still held at Guantánamo. Sixteen are forever
prisoners who have not been charged by the court but are considered too
dangerous to be candidates for release. President Obamas self-imposed
deadline to close the prison is more than six years past due.
Initially, the purpose of Guantánamo was to extract useful intelligence from
high-level detainees to aid the war on terror. The orders to subject
detainees to torture or what the George W. Bush administration
euphemistically called enhanced interrogation came from the White House.
It fell to the CIA to carry them out. The agencys initial
intelligence-driven mission got muddled up by other motives revenge
against al Qaeda, the avoidance of political fallout, control over the flow
of information to Congress and the public, and later, by the problem of what
to do with the detainees themselves.
Todays legal environment is more open to detainees giving accounts of their
own torture, according to Joseph Margulies, an attorney who represents Abu
Zubaydah, one of the three men that the CIA admits having waterboarded.
It is our position that the United States government has confirmed that Abu
Zubaydahs first-person account of his treatment is not classified,
Margulies said. Therefore he ought to be allowed to disclose it. As
evidence of the shift, he pointed to the release of the Senate torture
report summary, accounts of torture taken down by lawyers representing Majid
Khan, and filings in Salim v. Mitchell, a lawsuit brought against two
psychologists who designed the torture program as contractors for the CIA.
Connell, the attorney representing Ammar al-Baluchi, said that he welcomed
the shift towards openness at Guantánamo but that the rules were still too
restrictive. The most important information for accountability is who did
what and where they did it. Until that information is declassified, there
will never be accountability for the CIAs torture program.
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Guantanamo trials court. (photo: Joe Raedle/Getty Images)
https://theintercept.com/2016/08/15/documents-confirm-cia-censorship-of-guan
tanamo-trials/https://theintercept.com/2016/08/15/documents-confirm-cia-cens
orship-of-guantanamo-trials/
Documents Confirm CIA Censorship of Guantanamo Trials
By Mattathias Schwartz, The Intercept
15 August 16
n January 2013, during the military trial of five men accused of plotting
the 9/11 attacks, a defense lawyer was discussing a motion relating to the
CIAs black-site program, when a mysterious entity cut the audio feed to the
gallery. A red light began to glow and spin. Someone had triggered the
courtrooms censorship system.
The system was believed to be under the control of the judge, Col. James
Pohl. In this case, it wasnt.
The 40-second delay was initiated, not by me, Pohl said. He was referring
to the delayed audio feed, which normally broadcasts to the press and other
observers seated in the gallery. The gallery is cut off from the courtroom
by three layers of soundproof Plexiglas. Im curious as to why
if some
external body is turning the commission off under their own view of what
things ought to be, with no reasonable explanation, then we are going to
have a little meeting about who turns that light on or off.
Later, Pohl said the censorship was the work of an OCA, short for
Original Classification Authority. In the future, he said, no external
body would be permitted to unilaterally censor what was happening in his
courtroom.
Many have speculated that Pohls OCA is in fact the CIA. That speculation
is now confirmed with the release of three new documents by The Intercept.
The documents show the evolution of secret rules governing what is and is
not allowed to be discussed before the military court at Guantánamo.
All three of the declassified documents are marked Secret, and were
distributed to defense attorneys and Pentagon-employed courtroom-security
officers. The documents clearly identify CIA as the OCA for torture-related
information at the Guantánamo military commission proceedings.
Dean Boyd, who heads the CIAs public affairs office, referred questions
about the January 2013 censorship incident to the Pentagon. Lt. Col. Valerie
Henderson, a Pentagon spokesperson, declined to comment. I dont have
anything to offer you beyond what is written in [the court] transcript, she
said.
This page from a 2008 CIA guidance document designates as Top Secret the
treatment of detainees, their conditions of confinement, and certain
false allegations of torture which were later shown to have merit.
Another CIA spokesperson confirmed the dates of the guidance, which are not
given in two of the three documents.
The first guidance document is from spring of 2008.
The second document is from late spring or early summer of 2009.
The third document is from September 2011.
The Intercept obtained the documents through an ongoing Freedom of
Information Act lawsuit against the CIA and other federal agencies. Yale Law
Schools Media Freedom and Information Access Clinic is providing legal
representation for the request.
The term OCA is a placeholder that can refer to multiple agencies, but
with respect to the rendition and torture program, Guantánamo observers have
assumed for some time that it means the CIA. A defense lawyer asserted the
connection in open court, and it has previously been hinted at in several
other documents. At the end of January 2013, Judge Pohl issued a ruling
declaring that there would be no more outside censorship of the tribunals.
It is the judge that controls the courtroom, he said.
The courtrooms internal censorship system, including the Plexiglas and
audio delay, continues to this day. But assuming Judge Pohls order is
enforced, the CIA no longer has the power to decide when to cut the
courtroom audio, as it did in January 2013.
The Department of the Defense runs the courtroom, but CIA owns a lot of the
information, said attorney James Connell III, who is representing Ammar
al-Baluchi before the tribunal. Baluchi, whose torture at multiple overseas
black sites was depicted in the film Zero Dark Thirty, is one of five men
who stand accused of plotting the 9/11 attacks and now face the death
penalty.
What appears to be a 2015 version of a similar CIA guidance document was
released by OpenTheGovernment.org last year. Unlike the older guidance
documents released by The Intercept today, the sections addressing the CIAs
black-site and rendition programs are completely redacted.
The CIA calls its classification rules guidelines
to be applied
throughout the legal process. They are intended to provide the
Pentagon-employed court-security officers with general direction about when
national security information may be at issue,
triggering the need for
protection.
Much of what the CIA sought to keep out of open court effectively
constrained the detainees ability to give an account of their own torture
at the hands of the CIA and officials from other countries where they were
held.
At first, these prohibitions were broad, but they grew narrower over time.
The oldest guidance document, from 2008, prohibits talking about conditions
of confinement of detainees, and treatment of detainees although general
allegations of torture are unclassified. By this time, the CIA had released
three of the names of detainees subjected to waterboarding. Though the CIA
continues to insist those three were the only ones waterboarded, the claim
is tenuous at best. According to the 2008 guidance, no other detainee could
talk about waterboarding. Anyone who did, wrote the CIA, was lying, and even
the existence of those lies was secret.
Allegations of waterboarding by any detainees other than the three
are
false allegations and are TS//SCI, the guidance states.
In other words, even the alleged lies of other detainees who claimed to have
been waterboarded were designated Top Secret and Sensitive Compartmentalized
Information, a higher-level classification than Top Secret alone. And yet
many of these allegations, which the CIAs guidance kept out of the
tribunals for years, were later shown to have merit.
In effect, the government was making the chilling and breathtaking
assertion that it owned and controlled detainees memories of torture,
whether true or false, said Ashley Gorski, a staff attorney with the ACLU,
who reviewed the newly released guidance documents.
We stand by the document, Dean Boyd, director of the CIAs public affairs
office, wrote in an email.
The 2008 guidance identifies CIAs own Original Classification Authority
as having the power to declassify statements by detainees. Other officials
and agencies likely have some say as well. The 2011 and 2009 guidance say
that the president and director of National Intelligence can also declassify
information related to the torture program; the 2008 guidance suggests that
the power was delegated even further.
Seventy-six men are still held at Guantánamo. Sixteen are forever
prisoners who have not been charged by the court but are considered too
dangerous to be candidates for release. President Obamas self-imposed
deadline to close the prison is more than six years past due.
Initially, the purpose of Guantánamo was to extract useful intelligence from
high-level detainees to aid the war on terror. The orders to subject
detainees to torture or what the George W. Bush administration
euphemistically called enhanced interrogation came from the White House.
It fell to the CIA to carry them out. The agencys initial
intelligence-driven mission got muddled up by other motives revenge
against al Qaeda, the avoidance of political fallout, control over the flow
of information to Congress and the public, and later, by the problem of what
to do with the detainees themselves.
Todays legal environment is more open to detainees giving accounts of their
own torture, according to Joseph Margulies, an attorney who represents Abu
Zubaydah, one of the three men that the CIA admits having waterboarded.
It is our position that the United States government has confirmed that Abu
Zubaydahs first-person account of his treatment is not classified,
Margulies said. Therefore he ought to be allowed to disclose it. As
evidence of the shift, he pointed to the release of the Senate torture
report summary, accounts of torture taken down by lawyers representing Majid
Khan, and filings in Salim v. Mitchell, a lawsuit brought against two
psychologists who designed the torture program as contractors for the CIA.
Connell, the attorney representing Ammar al-Baluchi, said that he welcomed
the shift towards openness at Guantánamo but that the rules were still too
restrictive. The most important information for accountability is who did
what and where they did it. Until that information is declassified, there
will never be accountability for the CIAs torture program.
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