It was day one on Tuesday in another set of pretrial hearings at Guantanamo Bay for five men accused in the 9/11 attacks and it took no time for things to veer toward the absurd. The issue was: does a rule barring the parties in the case from talking about the defendant’s torture while in secret CIA custody violate the Convention Against Torture?
The treaty – ratified by the United States in 1994 – not only prohibits torture and other ill-treatment but also requires governments to provide an avenue of redress for victims of torture. But because the torture the defendants experienced during years in secret CIA custody has been deemed classified and, by a military commission rule, both the defendants and their attorneys are forbidden from disclosing it, it’s impossible for them to seek redress.
The government argued that it needs the don’t-reveal rule because if the defendants talked about their treatment, they would reveal vital “sources and methods” of intelligence gathering. Never mind that the US now rejects these “sources and methods” – on his second full day in office, President Obama revoked authority for the use of so-called “enhanced interrogation techniques” – or that prior to 9/11 the US had never tried to classify the actual experiences of torture victims.
It was not the first time this issue has come up. Torture, and the US government’s classifying of it, pervades every aspect of this case, bogging down the proceedings and placing obstacles in the way of the defense’s ability to investigate and litigate issues. This was at least the eighth set of pretrial hearings in the case that began in April of last year, and still a trial is likely years away.
The prosecution would like the focus to be on the defendants’ alleged actions, not their treatment. The case is “not about torture,” said prosecutor Clay Trivett. “It’s about the summary execution of 2,976 people.” That’s all true. The focus should be on the horrendous crimes that took place on that terrible day. But so long as the government goes to such great lengths to hide torture while continuing to prosecute the defendants in a system they claim is “fair, transparent and just,” that will not be the case.
There is of course a solution to this problem: declassify what happened to these men, and many others, in CIA custody. A 6,000-page Senate Intelligence Committee report has documented the abuse but it remains in a vault, available to only government officials and their staff with the highest levels of security clearances. The government should declassify this report with limited redactions, acknowledge wrongdoing and the shame that comes with it, and provide redress as appropriate. Until then, torture will continue to be a big focus, and obstacle, to the fairness and swiftness of these proceedings.