Judge Pohl next takes up defense motion AE029 regarding classification of court proceedings. The defense says it wants to know how to treat the unclassified transcript. Judge Pohl says that as he understands it, there is an unofficial and unclassified transcript on the Office of Military Commissions website that is available to the general public. Do you believe that you have a limitation on this unofficial transcript? The defense says it does. Judge Pohl then clarifies with Mattivi that the unofficial transcript on the web site is unclassified and that the defense is free to use it in any way. The official transcript that follows, Mattivi argues, is presumptively classified until it can be reviewed. The reason for the distinction is that the sources are different. One comes from the scrubbed audio broadcast to the press and thus has already been cleaned of classified information. The other comes from the recordings taken in the courtroom where there may have been classified information presented. Even if the audio feed is cut to the press, there is potentially classified information, he says, so it has to be treated as classified until we’re sure there is no classified information in there.Judge Pohl says–after a bit more back-and-forth and after securing the defense’s agreement that this government interpretation presents no problem–that the issue appears to have been resolved. The defense agrees that their concerns have been addressed.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and a member of the Hoover Institution's Task Force on National Security and Law. For speaking information and for a larger collection of his work, see his Full bio »
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