Transparency a goal not yet reached by Pentagon's new war court website

Miami HeraldOctober 5, 2011 

MIAMI — On the Pentagon's new military commission website, a clerk has scrawled “secret” in place of a convict’s photo in the court record, documents handed out to reporters a year ago are excluded, and unclassified court documents are missing.

The website was unveiled last month to rehabilitate the reputation of the Guantanamo war court. So far it's a hodgepodge of secrecy _ and still a work in progress, according to Defense Department officials, while clerks, lawyers and the intelligence community haggle behind the scenes over what the public can see.

It’s been more than a year in the making and the Pentagon has yet to reveal its cost. Every screen bears the slogan “fairness, transparency, justice.”

But a review of the content has found that it pointedly leaves out some of the key controversies that have bedeviled the war crimes trials, from allegations of torture to a comparison of the Seminole Indian tribe to al Qaida.

Moreover, the clerk of the court still has not developed a standard for what should be made public in a hybrid court that borrows from both the military and civilian justice systems.

A case in point: Most photographs of detainees and children already shown in open court are shielded from the public. But dig around and you can find the passport pictures of Osama bin Laden’s kids and alleged 9/11 mastermind Khalid Sheik Mohammed.

Obama appointees at the Defense Department committed to create the new website more than a year ago after attorneys and executives for McClatchy and other news organizations protested secrecy and ad-hoc rule making at the military trials.

Reporters working under crude conditions at Guantanamo’s Camp Justice had complained for years that clerks and judges unfamiliar with the federal system were inconsistently releasing documents. But the urgency of improving transparency increased after the Pentagon briefly banned four reporters from covering war crimes trials in the summer of 2010 in a dispute over ground rules. As part of talks that led to new ground rules, senior Pentagon officials also agreed to add the website.

But whether the website will accomplish media hopes of timely transparency is anything but certain.

A new, still undisclosed regulation gives the war court clerk three weeks to consult intelligence agencies on what to make public, according to Pentagon sources familiar with the secret rule-making. Under that timeline, motions filed days ahead of hearings might still be argued at the court without the public seeing their contents.

The Pentagon’s former Bush-era detention czar, Naval Reserve Cmdr. Cully Stimson, a military judge, called the new website “not perfect” and far from complete.

But he labeled it “long overdue” and a “monumental improvement over the status quo” in a blog posting on the conservative Heritage Foundation's website.

“Time will tell whether it can provide real-time documents for pending cases,” he added.

Confessed war criminal Omar Khadr, now 25, could go home to a Canadian lockup later this month to serve out at most seven more years of an eight-year sentence. Notes from the diplomatic agreement are available on the war court website.

But still under suitability review a year after they were presented in court are a photo used by prosecutors that showed Khadr as a child in traditional garb at mine-making class in Afghanistan — and a Danish psychologist’s article called “Muslim Inbreeding: Impacts on intelligence, sanity, health and society.”

The military handed out both to reporters a year ago at the base.

Pentagon spokesmen say legal authorities have managed to post 85 percent of the military commission documents intended for the website so far.

But a review shows that some of those documents are partially blacked out. Others are withheld entirely and replaced by a page bearing the slogan “Fairness Transparency Justice.” It explains that “the document you are trying to access has been deemed CLASSIFIED or has been SEALED by the court” — it doesn’t specify which or why — and then uses a third term for censorship, calling some documents “protected information ... not approved for public release.”

Others clearly reflect Freedom of Information Act scrutiny with specific coding for the redactions.

Click a link to the court record in the trial of Bin Laden’s driver and you get a piece of paper with a hand scrawl, unsigned, undated, that declares a “pic” of the driver and another Guantanamo captive, both since freed, SECRET.

Website creators have shied away from some commission controversies:

_ The snapshot in the military history section skips right over Gen. Andrew Jackson’s 1818 tribunal that the commission appeals court considers good precedent _ but drew a Pentagon apology because prosecutors used it to equate the Seminole Indians then to al Qaida. Court filings on the analogy are omitted from the electronic case record.

_ The Legal Resources guide to significant U.S. Supreme Court Opinions excludes Boumediene v. Bush, the 2008 case that granted Guantanamo captives civilian court review of their detention. Defense lawyers have invoked it often; prosecutors dismiss it as frequently, arguing that the U.S. Constitution does not apply at the Navy base in southeast Cuba, a claim the Supreme Court rejected.

The Pentagon launched the website Sept. 28, the day a senior lawyer approved the death-penalty prosecution of a Saudi-born captive accused in the October 2000 bombing of the USS Cole off Yemen. Absent is the alleged bomber’s July 15 filing that calls the case too tainted by CIA torture and delay to go forward as a capital case.

The Pentagon purposefully omitted the document describing torture, a Pentagon spokesman said, because it was considered “internal correspondence.”

Meantime, the site serves as a promotional tool for the trial system that Congress revamped twice after the Supreme Court ruled it unconstitutional in 2006.

For critics who argue the cases belong in the federal courts, there’s a chart comparing commissions to traditional U.S. military and civilian systems. It also has a secret password-protected portal for victims and family members to get additional information as well as forms they can fill out for travel reimbursement.

And there’s a guide to accommodations: Military jurors and families of al Qaida victims get hotels. Some staff and reporters get tents “kept cold to prevent insect infestation,” extra blankets available on request. Everyone gets a warning: The Navy base commander can search you and your belongings at any time.

There’s also a glossary, still under construction.

“Hostilities” are “any conflict subject to the laws of war.” A “tribunal” is “a court or other adjudicatory body.” “National Security” is “the national defense and foreign relations of the United States.”

“Torture” is trickier.

It’s defined as “an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion or any reason based on discrimination of any kind.”

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