[Infowarrior] - DoD: transcript of *public* Guantanamo hearing 'top secret'

[Richard Forno]

Alice-in-Wonderland?  More like classification-by-convenience.  -- rick


DoD: Transcript of public Guantanamo hearing 'top secret'
By JOSH GERSTEIN |
1/16/12 6:06 PM EST

http://www.politico.com/blogs/under-the-radar/2012/01/dod-transcript-of-public-guantanamo-hearing-top-secret-110978.html

Military officials have determined that official transcripts of military commissions held for key terrorism suspects at Guantanamo Bay must be treated as "top secret," even when members of the public, the press and victims' families have witnessed the entire proceeding, according to a recent legal filing.

The military's stance on the issue has drawn a protest from defense lawyers, who contend the government is taking an Alice-in-Wonderland approach to classification, where information is simultaneously classified and unclassified.

"The government is treating the entire proceeding as classified, while at the same time treating it as unclassified. It either is or is not classified, the government cannot have it both ways," defense lawyers for alleged U.S.S. Cole bombing conspirator Abd Al-Rahim Al Nashiri wrote in a motion seeking "a consistent, coherent policy concerning classification of court proceedings."

The motion, posted here, was filed on Dec. 28 and recently released on the military commissions' website after a delay to permit, naturally, classification review.

The dispute stems from a Nov. 9 hearing for Al-Nashiri, held at Guantanamo. Reporters and observers from non-governmental organizations watched the session from a sealed-off compartment near the back of the coutroom; they could see the proceedings through glass but heard audio on a 30-second delay. Other observers watched a similarly delayed closed-circuit audio and video feed sent to viewing sites at Ft. Meade, Md. and Norfolk, Va.

The delay allows a "security officer" in the courtroom to cut off the feed if classified information is mentioned. However, no use of that feature was made during the Nov. 9 session. Nevertheless, the Office of Military Commissions told defense lawyers the official transcript must be considered not only "top secret," but "top secret/secure compartmented information" part of a highly-restricted "special access program" or "SAP"—all this for a transcript believed to be identical to one posted on the commissions' public website within a day or two after the hearing.

When defense attorneys protested this arrangement, they received this e-mail reply from an official at the military commissions (the author's name was deleted from the copy made public):

< - >

Unfortunately for all HVD [high-value detainee] cases regardless if the 'button' was pushed, the audio and transcript are to be treated as SAP until the agencies have reviewed and approved the downgrading it. Recognizing the hardship in which is places [sic] on your office as well as all the teams on these cases we have attempted to find a way around it and have the audio treated as the appropriate level it was during court. That is not going to be an option. The agencies have stood firm on their decision that all HVD audio and transcripts will remain at the SAP level until they have reviewed the entire authenticated transcript.

< - >

With that being said, it must be reviewed in an approved SCIF [sensitive compartmented information facility] for SAP.

The government's formal response to the defense motion was filed last week but has not yet been made public.

The defense lawyers say that holding the hearing in public and then deeming the transcript classified suggests that "classification is a malleable concept waived by the prosecution at its whim when it wants pseudo-transparency."

The defense motion indicates that the unofficial transcript was removed from the military commissions' public website at www.mc.mil, but, as of this writing, the document still appears to be there. It is different in one respect from virtually all other types of documents posted on the site: it bears no marking as classified or unclassified, perhaps to make it less awkward to declare some of the information classified after it has been disclosed.

One tricky aspect of the current arrangement: the military commissions, which use the slogan "fairness, transparency, justice," have publicly pledged to make unofficial transcripts available within a day or two of open hearings. However, every word uttered by a high-value  detainee is considered presumptively classified at a level more stringent than "top secret." As defense lawyers pointed out in their motion, Al-Nashiri spoke on a few occasions at the November hearing, but no effort was made to cut the audio feed of his comments (which seemed benign).

The military judge overseeing Al-Nashiri's case, Army Col. James Pohl, is expected to take up the transcript issue during another hearing set to open on Tuesday at Guantanamo.


---
Just because i'm near the punchbowl doesn't mean I'm also drinking from it.