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Army Col. James L. Pohl, the judge: “I’m not ruling on
whether they [redacted]. I’m not ruling on whether
[redacted]. I’m not ruling on whether [redacted]. I’m simply
saying the information is discoverable and I will address
the form at a later date.”

VERBATIM | WHY SECRET SESSION?

Pohl, Aug. 19: “I make a specific finding that that closure is
necessary to protect information, the disclosure of which
could reasonably be expected to damage national security,
including intelligence or law enforcement sources,
methods or activities. It will be a relatively short session.”

Prosecutor Joanna Baltes, classification expert: “The
United States Government has said it's classified. We
provided the commission with a declaration explaining the
harm to national security and why something was
classified. That is not something that needs to be shared
to defense counsel, and absent authority to the contrary
we would decline to do so.”CROSENBERG@MIAMIHERALD.COM
During a secret hearing at Guantánamo, the military judge in the 9/11
death-penalty case ruled against a secret government request to
withhold information from defense lawyers for accused Sept. 11
mastermind Khalid Sheik Mohammed and his four alleged co-conspirators, according to a partially redacted transcript released
Tuesday.

The hearing, held Aug. 19 at the U.S. Navy base in Cuba, was the first
closed pre-trial hearing of the Sept. 11 capital case. The subject matter
was so secret that the judge cleared the court of the public and the five
men who, if convicted, could be executed for conspiring to carry out the
worst attack on U.S. soil, including 2,976 counts of murder.

And, while the 31-page transcript of the 29-minute hearing is so riddled
with redactions that it is unclear what the Pentagon prosecution team
was trying to shield from the defense attorneys, it shows the judge
denying the request.

“I’m ruling it is discoverable,” Army Col. James L. Pohl said in response
to a secret prosecution motion that argues something “is not
discoverable.”

At issue in the hearing was a pretrial motion labeled AE52 by the
prosecution that sought a secret ruling from the judge. It was called a
“government consolidated notice regarding ex parte, in camera filing and
motion for finding” on the Pentagon’s war court website whose motto is
“fairness, transparency, justice.”

A government protective order in the case blocks from public view the
details of the CIA’s secret prison network where the five alleged plotters
were held for years and, they and their lawyers say, were tortured. A
censor in the court can cut off the audio to the public if he or the judge
fears national security secrets will be spilled.

But the judge ruled that in this instance the risk was so great that he
closed the Aug. 19 hearing entirely. On Tuesday, the Pentagon released
the partial transcript after U.S. intelligence agencies redacted secret
information from it.

Prosecutor Joanna Baltes, a Justice Department classification expert,
tried to pin Pohl down on what he would allow the defense lawyers to
see.

“I’m not ruling on whether they [redacted],” the judge says in the public
portion of the transcript. “I’m not ruling on whether [redacted]. I’m not
ruling on whether [redacted]. I’m simply saying the information is
discoverable and I will address the form at a later date.”

Discovery, in a legal setting, is evidence that the prosecution is obliged to
show the accused before a trial.

At the Pentagon, chief prosecutor Army Brig. Gen. Mark Martins declined
to answer a question on whether the ruling constituted a setback, or
whether his office was considering challenging the judge’s ruling at a
special military commissions appeals panel.

In his place, Army Lt. Col. Todd Breasseale, a Pentagon spokesman,
refused to elaborate on what went on in the secret session.

“All rulings are of some consequence to the path forward,” Breasseale
said, adding that the Pentagon prosecutor “remains committed to
seeking accountability under law and will continue to do so.”

Retired Air Force Col. Morris Davis, who was chief prosecutor when the 9/11 accused were brought to Guantánamo in 2006, questioned what
needed to be kept secret in the case a decade after Mohammed’s
capture. Declassified CIA documents have already disclosed that agents
waterboarded him 183 times.

“Whatever need there was for secrecy you’d think a decade would have
cured,” he said Tuesday. After reading the partially redacted transcript, he
said there was “so much blacked out” that it was hard to discern the
significance of the lost prosecution motion.

Disclosure of the ruling itself is “beneficial,” Davis said, because it
challenges “the perception that the government can do whatever the hell
it wants. To the extent that the judge said, ‘ au contraire,’ there’s some
value in it.”

In this case, because of the national security court being run by the
Obama administration, some discovery will be shown to the accused
Sept. 11 plotters’ attorneys, who have security clearances, but not the
men being put on trial.

Human Rights Watch counterterrorism counsel Andrea Prasow, who has
followed the proceedings from the start, called the substance disclosed
Tuesday “breathtaking.”

“The over-classification is of course troubling,” she said. “But what I find
more concerning is that the government believed all along that the
defense had no right to the information.

“The defendants are on trial for their lives, and while they sit in their cells,
forbidden from entering the courtroom, the prosecution tries to hide
evidence from their lawyers. If you want to know what is wrong with the
military commissions, read this transcript.”