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Mystery, Paranoia, Confusion: You Won't Believe What's Happening at Guantanamo

A mystery is unfolding that highlights the peculiarities of the military commission system.

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When the button is pushed, a red light that looks like a hockey light goes off. That has now happened three times including the most recent instance, and each time the judge ruled the censoring inappropriate, so the hidden testimony was put on the public record.

So who was that outside entity? The open secret among everyone on base is it was the CIA, though no one can confirm that on the record because the information is classified. That's just one of many instances where “classified” doesn't mean secret as much as it means controlled.

Whoever secretly pushed the button is known as an Original Classification Authority, or OCA. OCA is not a position, rank, or job title. It's a term to describe someone, usually fairly high-level though not always, who “owns” the information that's classified, and is able to declassify it. There are also OCAs in the DoD, FBI, NSA, and other government agencies, and we don't know if any of them also had access to the kill switch.

Whether or not the judge knew an outside someone – or several someones – had the power to cut the media feed prior to it actually happening is unclear. Once the feed came back on, he certainly seemed surprised, and furious, about what had happened. “[N]ote for the record, that the 40-second delay was initiated, not by me,” Judge Pohl said when the feed came back. “I'm curious as to why.” He continued, “if some external body is turning the commission off under their own view of what things ought to be … we are going to have a little meeting about who turns that light on or off.”

But it's also possible that he wasn't totally aware of or familiar with his own rules for shutting court to ensure classified information doesn't “spill” accidentally.

What's certain, however, is that the defense was not aware that an outside entity could shut down the court. “I would like to know who has the permission to turn that light on and off, who is listening to this,” defense attorney Nevin said once the feed returned.

Many at the prosecution table, however, seemed non-plussed. Prosecutor Joanna Baltes actually offered to explain to the judge what had happened in his chambers, away from the public. James Connell, defense attorney for Ammar al-Baluchi, said that the OCA's cutting of the feed on Monday, "demonstrates a level of involvement by the OCA on the prosecution side that we had never previously seen.”

Judge Pohl issued a ruling at the end of the week demanding the government disconnect any system that allows an outside body to trigger the hockey light and cut the media feed, but as lawyers like to say: you can't unring a bell. The damage caused by an independent entity that is widely recognized to be the CIA temporarily shutting court – to the apparent surprise of everyone but the prosecution – will be difficult, if not impossible, to repair. Making matters worse for the government, defense attorney Cheryl Bormann characterized the discussion that triggered the closing as “innocuous.”

The location of the OCA could be important as well. A reporter for the Miami Herald asked defense attorney David Nevin if there could be constitutional implications if the OCA killed the feed from US soil. Nevin said there almost certainly would be, though he reiterated that the government has provided no information about who the OCA is or where they were.

Whether or not the Constitution applies at Guantanamo Bay remains an unresolved matter. Judge Pohl denied a defense motion to presume the applicability of the Constitution, saying instead he would review the matter on a case by case basis, as the prosecution argued was appropriate.

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