Change you can believe in? Secrecy still veils Guantanamo hearings

Miami HeraldMay 17, 2010 

GUANTANAMO BAY NAVY BASE, Cuba -- The first full military commission hearings here since Barack Obama became president and pledged to deliver transparency were no more open than the court process had been under President George W. Bush, critics say.

The hearings on Canadian Omar Khadr's claim of abuse opened with a new rule book and closed with the Pentagon banishing four veteran reporters. One of the witnesses was subpoened in secret, six testified under pseudonyms and security officers closed the court to screen a video that's available on YouTube.

"That's what's so heartbreaking. Obama actually promised transparency,'' said Human Rights Watch observer Stacy Sullivan, a veteran war court observer who passed a note to the judge asking for release of updated case pleadings.

"I was down there for four days, but I never had access to any of the motions being argued. We only had access to motions that were filed in November and December 2008, when the rules on coercion were different.''

Most of the motions were posted on a Pentagon website days into the hearing -- as was the 281-page rule book, or Manual for Military Commissions, by which lawyers framed their cases and provided guidance to the judge on evidence.

Secretary of Defense Robert Gates signed it on the eve of the hearing, but it didn't reach lawyers or the media on the remote Navy base until gavel time, forcing a delay.

"There's a comic opera quality to it,'' said the American Civil Liberty Union's Denny LeBoeuf, a persistent war court critic.

"Sign the rules at 7:30 p.m. the night before? That's just not how lawyer's act, that's just not how judges act.''

War court staff defend the process, which permits five independent observers -- from Amnesty International to the Institute of Military Justice and airlifts up to 60 reporters along with the court security officer who inspects an artist's sketches together on the same flight.

Legal advisor Michael Chapman wrote reporters who petitioned for access to an air conditioned press conference room that the Pentagon provides an "unprecedented level of transparency'' that "demonstrates our commitment to human rights and justice.''

To be sure, the eight-day Khadr hearing produced revelations for a military judge deciding which of the Canadian's confessions at age 15 and 16 may be used at his summertime trial.

An Army interrogator denied threatening the boy with rape but admitted to spinning a horror tale of an Afghan kid who was raped and killed in a U.S. prison to get Khadr to spill al Qaeda's secrets.

A Navy interrogator said she plied him with M&Ms, Fig Newtons and puzzle books to get him to repeat his confession two months later and 8,000 miles away.

A medic said he saw the teen, still recovering from gunshot wounds in his chest and shrapnel in his eyes, shackled inside a cage as punishment, sobbing beneath the hood over his head.

Obama era reforms not only forbid tortured confessions but also those derived through ``cruel, inhuman and degrading treatment.'

Now the standard is voluntariness, and a captive's age and education can be a consideration.

The judge, Army Col. Patrick Parrish, recessed the hearings until July to let a Pentagon-hired forensic psychiatrist examine the Canadian. Khadr's court-approved mental health experts argue that the 23-year-old developed post traumatic stress disorder after his capture in a U.S. military raid and airstrike.

He was 15, and shot twice through the back and lost an eye to shrapnel in a July 2002 firefight in Afghanistan that claimed the lives of two Afghan interrogators and U.S. Special Forces Sgt. 1st Class Christopher Speer.

Speer, 28, of New Mexico, died days later at a U.S. hospital in Germany of shrapnel injuries, according to the prosecution, from a grenade that Khadr threw.

In prosecuting the case, the Pentagon has engaged in a balancing act, protecting the names of some witnesses who might be mobilized overseas again or whose families might fear for their safety if their identities are revealed, said the chief war crimes prosecutor, Navy Capt. John F. Murphy.

Murphy also argued that lawyers sometimes need to trade anonymity for a witness' willingness to testify at trial.

Once the hearing had ended, Murphy also disclosed that one of the 16 witnesses was ordered to testify in a secret subpoena that shielded the person's identity -- pseudonym or otherwise.

In defending media access to the trial, Chapman noted "U.S. government transportation to Cuba, country clearances, lodging'' as well as a media center equipped with closed-circuit feed of the proceedings for those who don't want to watch in court.

In fact, they do provide the tents where media are housed for free, and $400 round-trip seats on military charter flights to Guantánamo, their sole means of transport allowed under the entry documents called country clearances, as well as $100 a week Internet lines.

In responding to a media complaint last month that defense lawyers were barred from the Pentagon's air-conditioned press conference room when prosecutors were not there to provide a counterpoint press conference, the war court's legal advisor, Michael Chapman, wrote one reporter: "We believe that this unprecedented level of transparency demonstrates our commitment to human rights and justice.''

TV reporters complained that their lenses fogged up in the humid, open-air abandoned hangar where interviews were authorized. Instead, military escorts were using the air conditioned press conference room to screen news video footage and decide which must be deleted for "operational security reasons.''

The military requires news groups to destroy imagery that might tip off al Qaeda or other enemies to how they safeguard operations. Most faces are out, as are portions of the shoreline and monitoring posts.

Sometimes that means the courthouse can't be photographed. Other times censors have destroyed photos with visible barbed wire or florescent orange traffic barriers.

The military transported 35 journalists for the two-week hearing, many of them from broadcast outlets, which are not allowed to record in the courtroom. The media entourage dwindled to 14, four of whom were banned from returning because they allegedly violated Pentagon ground rules protecting the identities of some people who testify in the proceeding.

Also secret at the Khadr hearing was a screening of a grainy 2003 video in which an at-times weeping Khadr was being questioned by a Canadian intelligence agent at Guantánamo.

It was still classified at Guantánamo -- as are all tapes of interrogation -- even though a Canadian court released it in June 2008. So reporters excused from the proceedings used their Internet lines to watch it on YouTube.

Reporters weren't the only ones excluded. Canadian attorney Nate Whitling didn't have the court-approved clearances to watch it either -- even though he provided the version viewed in secret session by burning it onto a DVD at the trailer park where lawyers live below the hilltop tribunal building.

"As I understand it, there's been amendments to the act under Obama that are more restrictive in terms of the types of confessions that could be admitted as evidence,'' Whitling said in an interview later from Canada.

"But in terms of transparency, I see no difference between Obama and Bush at this particular point.''

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