The 9/11 trial judge has ruled that government censors can retroactively seal public war court testimony, saying state secrets sometimes slip through Camp Justice's special national security screening system.
In doing so, Army Col. James L. Pohl, the judge, rejected a challenge brought last year by 17 news organizations to a Pentagon transcript of an Oct. 30, 2015, hearing that blacked out swaths of open-court testimony.
"Given the scope of classified information involved in this case, occasional unintentional disclosure of classified information during commission proceedings is inevitable. Spillage, however, does not equal declassification," Pohl wrote in a 12-page ruling. It was dated Oct. 3 but recently made public on the Pentagon war court website.
At issue was five hours of uncontested open-court testimony by a Colorado National Guard soldier about restrictions on using female guards in the 9/11 case. Reporters, Sept. 11 families and other members of the public heard a soldier called "Staff Sgt. Jinx" testify on a 40-second audio delay designed to let the judge or a court security officer mute the sound if anyone spilled national security secrets.
No one ever pushed the button. But when the Pentagon released a 379-page transcript weeks later, about 18 percent of what was said was covered up by black redactions. After media organizations filed a legal motion challenging after-the-fact censorship, the security personnel re-scrubbed it and restored all but 6 percent of the 45,000-word transcript.
The revised transcript's blacked-out information was "limited to specific manning and operational information," Pohl ruled, deferring to "the Government's greater expertise in assessing what may or may not cause harm to the national security."
First Amendment attorney Dave Schulz argued in court in February that, even if classified, the information was already in the public domain in part because reporters wrote about it and tweeted some of the since-redacted testimony. "There can't be a procedure that says the government can rewrite history or conceal things from the public after the fact in this case," Schulz said.
In his ruling, Pohl disagreed. "The fact that classified information was inadvertently released and publicly reported ... does not necessarily make that information fair game for unbridled further public disclosure."
The judge ruled that he could decide the issue without addressing Schulz's First Amendment claim, and defense attorneys' claims that the alleged 9/11 plotters had a Sixth Amendment public trial right too. Pohl has been postponing decisions on what portions of the Constitution apply at Guantanamo.
Pohl also sidestepped Schulz's argument that unofficial transcripts created by court reporters at each day's end and posted on the war court website constitute "a judicial record."
The testimony that day involved some policies and practices in Camp 7, Guantanamo's most clandestine prison, where the Pentagon holds former CIA captives -- six of them awaiting death-penalty trials as alleged architects of al-Qaida's Sept. 11 and USS Cole terror attacks.
Lawyers for the alleged 9/11 mastermind Khalid Sheik Mohammed and four other men accused of plotting the Sept. 11, 2001, attacks sought and got Pohl to prohibit female guards from touching the men for 18 months while he decided the issue. The alleged terrorists argued that they hadn't been touched by female guards in earlier years at Guantanamo, and got an acknowledgment that their refusal to be touched by women other than close relatives was a heartfelt religious sentiment.
Still, Pohl eventually ruled for the Pentagon, saying it can staff Camp 7 as it seems fit.
In a sealed affidavit, prison camps commander Navy Rear Adm. Peter Clarke explained to the judge why some of that information should not be published in a Pentagon transcript, according to a prosecution filing that defended retroactive censorship.
The prison commander argued, according to prosecutors, that the transcript "could be mined by those with intentions hostile to the United States and JTF-GTMO" -- the acronym for the around 2,000-member staff of troop and civilians working at the prison that today holds 61 captives.