Guantánamo Inc.? Oops

Miami HeraldOctober 12, 2011 

Guantánamo Inc? Not so fast.

In the Pentagon’s zeal to rebrand its beleaguered war court in southeast Cuba, the lawyers who pioneered a nearly $500,000 new website went too far. They declared it copyrighted.

The Defense Department launched the site two weeks ago with a senior Pentagon official’s approval of the death penalty prosecution of a Guantánamo captive who allegedly orchestrated Al Qaeda’s 2000 suicide bombing of a US Navy destroyer off Yemen.

Just below pictures of Lady Liberty and Abe Lincoln on the homepage [], the webmaster declared it copyrighted as of 2011, meaning its was protecting its contents by law.

But the label disappeared overnight Wednesday after a Yale Law School teacher, Eugene R. Fidell, wrote the webmaster that the government cannot copyright its own publications.

It’s banned by an 1895 statute, he said.

In an interview, Fidell said an exemption for “U.S. Government works outside the United States” clearly did not apply to the site, which is managed at the Pentagon’s Office of Military Commissions headquarters in Washington D.C.

Fidell, founding president of the National Institute of Military Justice, invoked the 2008 Supreme Court decision Boumediene v. Bush that lets Guantanamo captives challenge their military detention in civilian courts.

“If habeas applies, can the Copyright Act be far behind?” he said.

The Pentagon Office of Public Affairs describes the site it started 18 months ago with a $487,369 development contract as a work in progress. The Office of Military Commissions is still posting portions of the historical material, and has so far sealed up as secret 5 percent of the site’s documents — and deleted portions of many more.

The site is intended as a wide-ranging resource.

It’s packed with information for people who travel to the island to observe the trials, a comparison of today’s military commissions to traditional U.S. courts and links to legal precedents.

But it also skips some key controversies that have beleaguered the remote detention center’s military commissions in Cuba since President George W. Bush created the court in 2001. Some of it intentionally.

The Pentagon said in a statement that the curators decided to omit the Boumediene decision from the website’s “Significant U.S. Supreme Court Opinions,” because “Lakhdar Boumediene was never charged in a military commission.”

A federal court ordered Boumediene set free in 2009. He is now living in France but military defense lawyers invoke the opinion often to argue that Guantánamo captives have U.S. Constitutional rights; prosecutors argue they do not.

The site does, however, link to two other U.S. Supreme Court opinions named for now free Guantánamo detainees who were never charged at a commission — Rasul v. Bush and Hamdi v. Rumsfeld, named for Shafiq Rasul and Yaser Hamdi now living in Britain and Saudi Arabia respectively.

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