Washington Post 
Thursday, Jan 8, 2008
The military judge overseeing proceedings against five of the men accused of planning the Sept. 11, 2001, attacks signed an order designed to protect classified information that is so broad it could prevent public scrutiny of the most important trial at Guantanamo Bay, Cuba, according to lawyers and human rights groups.
The protective order, which was signed on Dec. 18 by Judge Stephen R. Henley, an Army colonel, not only protects documents and information that have been classified by intelligence agencies, it also presumptively classifies any information “referring” to a host of agencies, including the CIA, the FBI and the State Department. The order also allows the court in certain circumstances to classify information already in the public domain and presumptively classifies “any statements made by the accused.”
Three of the accused, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, are defending themselves and, under the order, anything they say during the course of the trial could be shielded from the public.
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“These rules turn the presumption of openness on its head, making what is perhaps the most important trial in American history presumptively closed to the public and the press,” said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. “If these rules applied in all cases, there would be no such thing as an open trial in America.”
Late Monday, the judge appeared to have second thoughts about the breadth of the order. In an e-mail to both the prosecution and the defense, he invited counsel to file briefs on whether the protective order expands “the definition of ‘classified information’ and the scope of protective orders generally beyond that provided for in the [Military Commissions Act] and other applicable legal authority?”
If so, the judge said, he wants to know what “modifications” should be made to the order.
Prosecutors defended the wording of the order. It “is standard language used in numerous other counterterrorism, counter-espionage or habeas detainee cases in federal court throughout the past nine years,” said Col. Lawrence Morris, chief prosecutor for the Pentagon’s Office of Military Commissions. “In fact, numerous cases have applied far more restrictive language in their protective orders that we did not implement here.”