October 19, 2012
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Battles Over Government Secrecy Dominate 9/11 Hearings
Posted: 10/17/2012 1:49 pm
The definition and use of classified information, and the public's right to hear it, is proving to be one of the most important issues arising in pre-trial hearings in this historic September 11th terrorism prosecution. With only two of the defendants actually in the courtroom on Wednesday (the others elected not to come), lawyers from the government, defense, ACLU and 14 media organizations over the last two days have argued vehemently over whether the government is properly classifying information -- particularly the memories and experiences of the defendants, who were subjected to the CIA's classified "enhanced interrogation" program. Even if it is deemed classified, argue the ACLU and news organizations, it still has to meet a strict First Amendment standard for the court to lawfully prevent the public from hearing it.
The First Amendment only allows the closing of a courtroom, argued ACLU lawyer Hina Shamsi and media lawyer David Schulz, if it will "cause grave harm to national security."
"The government fails utterly to explain how it has a legitimate interest, let alone a compelling one, in suppressing information about a CIA coercive interrogation and detention program that was illegal and has been banned by the president," the ACLU says in its brief to the court.
The issue is important, both for the public's right to know what its government did and for the legitimacy of this historic trial. As Schulz told the court yesterday: "Nothing is likely to shape the public perception of the fairness of these proceedings more significantly than the way the court handles this request for a protective order."
The current proposed order, he said, "covers things that quite clearly can't credibly constitute a threat to our national security."