In the federal and state courts of Connecticut, virtually all proceedings are conducted in public. We take this for granted, and it certainly contributes to public confidence in the administration of justice. A recent order of the military judge presiding over the Military Commission trial of Khalid Shaikh Mohammad is disturbing because it raises questions as to whether that separate system of justice is applying the proper standards in keeping matters out of the public eye (beyond the fact that the trials are conducted at Guantanamo Bay, Cuba).
The Office of Military Commissions, whose watchwords are "Fairness, Transparency, Justice," provides the administrative support for the Guantanamo commissions. On or about December 12, 2012, there appeared on its website a December 6 protective order "to protect against disclosure of national security information" The order provides in part that the following information may not be presented:
(a) Information that would reveal or tend to reveal details surrounding the capture of an accused other than the location and date.
(b) Information that would reveal or tend to reveal the foreign countries in which: Khalid Shaikh Mohammad and [other so-called "high-value detainees"] were detained from the time of their capture [in 2002-2003 through] 6 September 2006.
(c) The names, identities, and physical descriptions of any persons involved with the capture, transfer, detention, or interrogation of an accused or specific dates regarding the same, from on or around the aforementioned capture dates through 6 September 2006.
(d) The enhanced interrogation techniques that were applied to an 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.
(e) Descriptions of the conditions of confinement of any of the accused from on or around the aforementioned capture dates through 6 September 2006.
While we do not believe the doors should be thrown wide open in a trial such as this, aspects of the protected information appear are at best questionable. Passing over use of the euphemistic term "enhanced interrogation techniques" — meaning torture and cruel, inhuman and degrading treatment — it is difficult to see why at least some categories of the protected information are off-limits for presentation by the defense. If KSM and other so-called high-value detainees wish to make a public point about where and how they were mistreated, they ought to be allowed to do so.
Who did the mistreating may be in a different category if there is a well-founded fear that those individuals would be placed in personal danger if their identities were made known.
But military law has long required the use of a scalpel rather than a meat-cleaver when deciding on closures in the court-martial context, and the same ought to hold true for military commissions.
The United States is scarcely alone in facing these issues. The British Judge Advocate General, a judicial officer, recently permitted the prosecution of five Royal Marines to go forward without disclosing their names. Not long ago, the Canadian military justice system faced a similar situation.
Our commitment to open proceedings and named parties (John Doe cases aside) is deep and longstanding. It ought not to be relaxed until there has been a thorough examination of the competing considerations, informed by our legal and constitutional traditions. The KSM protective order will be reviewed by the Court of Military Commission Review and perhaps the U.S. Court of Appeals for the District of Columbia Circuit. Given the appalling delays that have already plagued these trials, we hope that review is both thoughtful and expeditious.•