Josh Gerstein at reports that:

Military officials have determined that official transcripts of military commissions held for key terrorism suspects at Guantanamo Bay must be treated as “top secret,” even when members of the public, the press and victims’ families have witnessed the entire proceeding, according to a recent legal filing.

The post includes a link to a “Defense motion for a consistent, coherent policy concerning classification of court proceedings.”

10 Responses to “A classification controversy at the Commissions?”

  1. Ama Goste says:

    What are they smoking?  Have these officials read any of the transcripts?  There’s nothing secret, much less top-secret about what occurs in open court at the commissions.

  2. anoninsider says:

    Believe me when I say this is just one of many frustrations felt by those charged with trying cases.  The irony now is the biggest obstacles to getting anything done are inside the Govt. itself.

  3. Ama Goste says:

    Having had inside sources since the beginning on these commissions, I must say that has always been the biggest obstacle.

  4. Zachary Spilman says:

    Over at Lawfare Blog, Benjamin Wittes and Ritika Singh are quasi-liveblogging the military commission hearing for Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri (“Al Nashiri”).

    Ritika and I are at Fort Meade, sitting in a small theater in front of a large screen–on which we have a video feed from the Al-Nashiri military commission hearing shortly to get under way from Guantanamo Bay. We posted a preview of the motions under discussion last night.

    Because the Defense Department has been good enough to allow us computers and internet access in the screening room (thereby putting the D.C. Circuit’s information policies to shame), we are going to try something new today–something that may or may not work. We are going to try to quasi-liveblog this hearing–providing as detailed a post on each of the issues the court is going to hear in as close to real time as we can.

    I’m now thoroughly confused.


  5. Zachary Spilman says:

    From Lawfare Blog’s quasi-livebloging:

    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 securing the defense’s concession that interpreted this way, there is no problem–that the issue appears to have been resolved. The defense agrees.

  6. Dew_Process says:

    There is no such thing as “potentially classified” material.  It is either classified or not.  Once its released to the public, [open sourced] unless one totally disregards the classification guidelines, it’s not classified.  Furthermore, if the transcripts are of sessions open to the public, the government simply has waived any right to seek ex post facto classification.

    The problem here appears to be that the defense does not have a “classification expert” assisting them.

  7. Atticus says:


    Try telling that to some of the intel agencies who say the 9/11 report is classified.  And just because someone in the G puts classified material out does not change its classification.  That’s a common misconception.

  8. Dew_Process says:

       I’ve been dealing with classification challenges for 20+ years.  I agree that if someone unauthorized posts something classified, that the fact of putting it in the public domain does not per se remove the classification.  But, when the government via an authorized agent posts a transcript from an open session, it’s simply idiotic to argue that it is (or even may be) “classified.”  If there was a bona fide national security interest, then it would have occurred in a closed session.

  9. Charles Gittins says:

    Confidential, Secret and Top Secret are the classifications that the G asserts and are supported by regulatory authority.  Unfortunately most to the classified information actually classified is in another, unreported, classification – – –   “Classified-Embarrassing.”  Classified because it makes the G generally, or some in the G specifically look stupid.   Fortunately for the G inb military commissions, they have a very G oriented judge.

  10. Just Sayin' says:

    agree with Charlie.  this smacks less of national security and more of “We don’t want the public to hear our idiotic reasoning why we should be able to read attorney client mail and other such antics”