Reporters complain they can't get Guantanamo court records

McClatchy NewspapersJuly 29, 2010 

WASHINGTON — Reporters covering trials of accused terrorists at Guantanamo on Monday will have their first-ever face-to-face chance to air their complaints about the U.S government's restrictive rules, which journalists say make it nearly impossible for the public to follow the proceedings.

Long-simmering tensions that began during the Bush administration boiled over in May when Pentagon officials barred four reporters from future coverage for naming a witness whose identity military commission prosecutors wanted kept secret, even though it had been publicly known for several years.

Former Army Sgt. Joshua Claus, who interrogated Canadian Omar Khadr in Afghanistan, had been court-martialed and convicted for detainee abuse. That was a critical fact in the May hearing, where Khadr's attorneys were arguing that he'd been coerced into making incriminating statements when he, then just 15 and badly wounded, was interrogated, first at Bagram Air Base in Afghanistan, and later at Guantanamo.

The Pentagon's public affairs department made the decision to ban the journalists without any kind of a hearing and without even notifying the journalists that their banning was being contemplated.

Challenged on the ban's legality, the Pentagon eventually relented on three of the four reporters, but not before a long list of complaints burst into the open. They included charges that ever-changing rules cut off reporters' access to defense lawyers, prohibited photographs of even the most banal scenes and let official minders monitor reporters' Internet transmissions, phone calls and even trips to the bathroom.

The dispute also brought to light a practice that reporters complain hampers their coverage of what takes place in the courts — the routine denial of essential and unclassified court records.

Reporters and a leading First Amendment lawyer said the practice raises a fundamental question: whether the military-run trials — known as military commissions — are open to the public as Congress required them to be under the 2007 and 2009 Military Commissions acts.

The Pentagon's Office of Military Commissions, for example, doesn't make public the court's unclassified docket, which lists all motions and submissions made by government prosecutors or the officially appointed government defense. The motions themselves often aren't released until months after they've been argued in court.

Australian David Hicks was due to stand trial in March 2007 but instead was sent home in a deal in which he pleaded guilty. Before that deal became public, the defense filed a motion of misconduct against the chief prosecutor that wasn't revealed for at least six months, according to New York lawyer David Schulz, who's representing McClatchy and five other major U.S. news organizations in their battle with the Pentagon.

"There had been a whole series of motions in the case . . . that might have had some bearing on the willingness to make this plea deal. All of that should have been open, should have been known at that time," Schulz recently told an audience at the National Press Club in Washington.

Carol Rosenberg, a Miami Herald reporter who covered the Hicks case and has been covering events at the detention camps for eight years, said she had no knowledge of the declassified motion until Schulz revealed it at the July 20 panel discussion.

This motion may not have made a difference. It was filed by Marine Maj. Matthew Mori asking for the disqualification of Chief Prosecutor Morris Davis. Mori had made a lecture tour of Australia, speaking at rallies on behalf of Hicks and denouncing the Guantanamo commissions, and Davis had been quoted in an Australian daily as saying that Mori could be court-martialed for showing contempt for U.S. officials.

According to Davis, the plea bargain was negotiated between Mori and Susan Crawford, a one-time aide to then Vice President Dick Cheney, a week before the defense motion was ever heard.

Crawford was the Convening Authority for the commissions, the top official. The prosecution, which wasn't consulted on the plea bargain, was "livid" and "shocked" by the deal, Davis said. He noted that Cheney had met then Australian Prime Minister John Howard a short time earlier in Australia. Davis himself resigned his post seven months later, charging Bush administration officials with trying to apply political pressure.

The lack of routine access to motions galls working reporters, who say it renders much of the proceedings incomprehensible.

"How can you cover a proceeding when motions are filed and you have no idea what's been filed?" Schulz said.

Schulz has been trying to get the Pentagon to modify the way such court documents are handled for three years. The effort sounds like a tale by Franz Kafka.

In 2007, Schulz asked for an expedited procedure to make motions publicly available. Neither he nor the reporters could make their request directly, so Michael Berrigan, who at the time was the No. 2 military defense lawyer at Guantanamo, sent it to two judges.

"There's no procedure. It's a closed system," Berrigan told the press club gathering. "The way things are filed is by e-mail, electronically, and the press and outside law firms have no ability to do that."

One judge ruled that the media had no standing to submit a request, but the second agreed to review it. "We didn't find out till months later," Schulz said, "because it was said in one of those closed conferences, and the parties weren't allowed to tell us what the judge had done."

It made no difference, because nothing happened.

After the Obama administration took office, Schulz said he raised the issue with the Pentagon in three letters in 2009. A top Pentagon aide responded in January and suggested a meeting, but despite repeated requests, a date was never set.

The issue is certain to be raised on Monday, when the Pentagon holds an off-the-record "roundtable" on the Guantanamo coverage rules, which have assumed renewed importance as the Obama administration considers military commission trials for perhaps as many as 20 detainees. Khadr's trial in the death of a U.S. soldier is set to begin on Aug. 9.

Also on the agenda will be journalists' demands that the Pentagon agree that no rule will restrict reporters from writing and broadcasting information that's already publicly known or that they learned outside protected military commission testimony. The journalists also want the Pentagon to agree that the decision to ban a reporter must be made by a judge, something Schulz argues the Military Commissions Act requires.

Hosting the meeting will be Jeh Johnson, the Pentagon's general counsel, and Doug Wilson, the assistant secretary of defense for public affairs. Also in attendance will by Michael Chapman, the legal adviser to the Pentagon's Office of Military Commissions.

On the journalists' side will be Schulz and attorneys and journalists from McClatchy, The Wall Street Journal, The Washington Post, The New York Times, The Associated Press and Reuters. Two of the reporters banned in May, The Miami Herald's Rosenberg and Michelle Shephard of the Toronto Star, have said they will attend.

Schulz said he couldn't predict the meeting's outcome. He called the restrictions at Guantanamo "a fundamentally illegal system," however, and said that a lawsuit could be the result if no progress is made.

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