Judge Pohl’s 9/11 Trial Order on the Convention Against Torture and the Accused’s “Observations and Experiences”

On Monday, Thomas reported that Judge Pohl, in the 9/11 military commissions case (United States v. Mohammed et al.), had reportedly “issued several orders lifting the classifying of the ‘observations and experiences’ of defendants formerly held by the CIA.”

One of those orders has now been made available.  As far as I can understand, Judge Pohl issues three basic holdings in it:

1.  Judge Pohl held that even if the defendants were tortured in violation of the Convention Against Torture, the Senate declared that treaty “non-self-executing” upon ratification, which means that asserted violations of the Convention cannot be invoked in U.S. courts, including (as here) as a defense against criminal trial.  This holding is not surprising, or groundbreaking.

2.  The Judge also clarified that defense counsel must remain silent about the nature of the defendants’ treatment during CIA custody not because of the Court’s “Amended Protective Order No. 1” (which appears, on this reading, to be an order governing the Court’s own administration of the trial, if I understand Judge Pohl correctly), but instead by virtue of statutes, executive orders, and/or service regulations that might bind the counsel, or by counsel’s signed agreements with the government.

3. Finally, Judge Pohl “struck” paragraph 2g(5) of his Protective Order — which refers to “observations and experiences” of the accused with respect to their capture and treatment at the hands of the U.S. government — not because counsel and the judge are now free to publicly disclose such “observations and experiences,” but because that subsection is superfluous to other provisions of the Order and the statutes, executive orders, service regulations and agreements mentioned above–that is, it does not impose any restrictions on information that could otherwise be freely conveyed.  The basis for this third holding is said to be contained in the Judge’s ruling on Monday on Motion 013CCC, which is not yet public.

If I’m reading this correctly — and perhaps I’m not; I’d welcome any corrections or clarifications — there’s nothing especially notable about this order from Judge Pohl.

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).