The apparent end of the “gag orders” for GTMO detainees

Back in February, I explained that the protective orders in two Military Commissions cases had been amended to now permit the defendants and their counsel to speak publicly about their treatment and conditions of confinement in U.S. custody–undoing a longstanding restriction that had been deeply problematic on both policy and legal grounds, and that had contributed substantially to the widespread discrediting of the Commissions process.

At the end of one of my posts, I wrote that I assumed “similar changes will be effected to the speech restrictions imposed upon other Guantánamo detainees, too–those not being tried by Commissions.  Certainly there is no obvious reason why they should not be.”

It now appears that this is, indeed, the case:  I am informed that attorneys for Majid Khan—a GTMO detainee who has been in U.S. custody for over twelve years and who has pled guilty in Commission proceedings—recently asked the government’s “habeas privilege team” to review the status of their notes of interviews with Khan about his own treatment in U.S. custody (along with some other materials), and that the government cleared all or most of those materials for public dissemination.

The notes in question are not yet publicly available, but apparently they were provided to Reuters, which yesterday reported Khan’s allegations that CIA interrogators “poured ice water on his genitals, twice videotaped him naked and repeatedly touched his ‘private parts’ – none of which was described in the Senate report [on the CIA program].”  Reuters also reports Khan as having said that interrogators “threatened to beat him with a hammer, baseball bats, sticks and leather belts.”

Together with the government’s earlier decision to allow GTMO detainee Mohamedou Ould Slahi to publish his diary, which extensively describes Slahi’s account of his treatment at GTMO and at other locations under U.S. custody, the Khan example appears to demonstrate that the GTMO detainees are now generally free to describe their treatment under U.S. custody.  (There are likely to be discrete carve-outs, with respect to, e.g., the identities of some nations in which detainees were held, and perhaps some details relating to GTMO itself.  But those ought to be the exceptions rather than the rule.)

As I noted earlier, this is a very welcome and important development. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).