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Chapter 10 - The Obama Administration
The Constitution Project
counsel for Abu Zubaydah, said that “I don’t really mind the logistical obstacles”
to public disclosure of detainee statements, but for former CIA detainees, it had
become impossible to get “even the most trivial stuff declassified.”
145
Margulies said
the current restrictions were “preposterous … just ridiculous,” and that it was more
difficult for counsel to get approval to disclose detainees’ statements then it had
been under the Bush administration.
146
In January 2005, for example, Margulies
had gotten permission to publicly file a declaration recounting his client Mamdouh
Habib’s allegations of rendition to torture in Egypt. This had ultimately resulted
in Habib’s release from Guantánamo, but Margulies said “my declaration of what
happened to Habib never would have been cleared now.”
147
Without jeopardizing
his security clearance, though, he could not give specific examples of information
that he was forbidden to disclose today.
148
The attorneys representing the September 11 defendants before military
commissions have argued that the “presumptive classification” regime has interfered
with their relationship with their clients, and made a full factual investigation of the
case “virtually impossible.”
149
In response, the government slightly modified its proposed protective order so that only certain
categories of information from the defendants would be presumptively classified — but this still
included all statements from the detainees about their capture (other than the date and location),
the countries where they were held, the people who detained and interrogated them, and
[t]he enhanced interrogation techniques that were applied to the Accused from
on or around the aforementioned capture dates through 6 September 2006,
including descriptions of the techniques as applied, the duration, frequency,
sequencing, and limitations of those techniques; and … [d]escriptions
of the conditions of confinement of the Accused from on or around the
aforementioned capture dates through 6 September 2006.
150
Defense counsel are also explicitly prohibited from revealing their clients’ “observations and
experiences” about their treatment in CIA custody. The ACLU has called this last restriction
a chillingly Orwellian claim: because a defendant was “detained and
interrogated in the CIA program” of secret detention, torture, and abuse, he
was “exposed to classified sources, methods, and activities” and must be gagged
lest he reveal his knowledge of what the government did to him.
151
At a military commission hearing on October 17, 2012, Lieutenant Commander Kevin
Bogucki, military defense counsel for Ramzi bin al Shibh argued that
to characterize our clients as having been participants in the CIA program
would be like characterizing an assassination victim as a participant in the
assassination program. It is ridiculous to suggest that somehow they’ve been
afforded access to classified information and that therefore their memories need
to be treated as classified information.
152
At the same hearing, defense counsel argued that classifying their clients’ memories made it
“To characterize
our clients as
having been
participants in
the CIA program
would be like
characterizing
an assassination
victim as a
participant in the
assassination
program.”
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