That’s the report from James Connell III, a lawyer for 9/11 defendant Ammar al Baluchi. Connell’s statement provides, in full:
9/11 prosecution retreats from presumptive classification
September 25, 2012
Today, the prosecution in the 9/11 military commission filed a document (AE013L) retreating from its argument for “presumptive classification” of all detainee statements, regardless of their topic. Defense attorneys have vigorously opposed the practice of presumptive classification, and the military judge is scheduled to hear a Defense Motion to End Presumptive Classification at the October 15 hearing.
“Presumptive classification violates American national security regulations, but it has prevailed for years at Guantanamo Bay,” said James Connell, attorney for accused logistical conspirator Ammar al Baluchi. “Hopefully, this change of position will mark the beginning of the end of presumptive classification.”
Presumptive classification is still the rule in the case of Rahim al Nashiri, an accused conspirator in the bombing of the USS COLE. Today, the government also filed a pleading (AE112) defending presumptive classification against a similar defense challenge. One difference between the two cases is that the military judge entered a protective order in the Nashiri case in December which included presumptive classification, but has not yet entered a protective order in the 9/11 case.
Now what is a “retreat,” exactly? The Government’s response is not yet public, so we do not know. But betting money is on this: the “retreat” marks an abandonment of the old approach, whereby all statements of the accused must be treated as presumptively classified, pending a classification review. Instead, look for certain categories of statements to be treated as classified, under a differently structured protective order. At least one such category no doubt will encompass statements made during, or relating to, the defendants’ apprehension and interrogation abroad. (The court took this approach in Ghailani’s federal prosecution, for example.)
The question is what all this means— assuming that, indeed, the “retreat” looks something like the above. A lessened burden on defense counsel, for one thing. ”Presumptively classified” material, like the genuine article, can only be discussed in secure places or over secure connections, and then only with persons with the requisite security clearance and a need to know. And up to now, that regime needlessly had been imposed upon even the most innocuous of detainee remarks, and thus made defense lawyers’ jobs much harder. Harder still with respect to important statements that bore no relationship to national security, but nevertheless had to be discussed with uncleared personnel in order, say, to develop the defense’s theory of the case or to understand the facts more fully.
But what it almost certainly won’t mean is an enhancement in the defendants’ shared ability to speak openly, during court proceedings, about their past mistreatment—though, to be sure, the accused have asked Judge James Pohl to respect their right not to attend commission sessions when they choose.