Arguing that a Pentagon order banning four journalists from covering military commissions at Guantanamo Bay was illegal and unconstitutional, TheMiami Herald and two Canadian news outlets appealed on Wednesday.
While covering a hearing last week to determine the admissibility of confessions made by Canadian detainee Omar Khadr, four journalists from The Herald, which is owned by McClatchy, the Toronto Star, the Globe and Mail and Can-West Newspapers of Canada printed the name of a witness who had been identified at the hearing as "Interrogator No. 1.'' The witness, Joshua Claus, had been convicted by a U.S. military jury of detainee abuse in 2005 and sentenced to five months in prison. His role as Khadr's interrogator had been known since 2008, when it was first revealed by a judge at Guantanamo. He later gave an on-the-record interview to the Toronto Star.
The Pentagon, however, said the reporters had violated ground rules for being permitted to cover military tribunals by revealing Interrogator No. 1's name in dispatches preceding his testimony and said they would not be permitted to cover future military commission hearings.
The four reporters include Miami Herald correspondent Carol Rosenberg, who has covered the Guantanamo detention facility since it opened in 2002.
Appealing for the newspapers, attorney David A. Schulz wrote, "The order is mistaken, the remedy is too severe, and the expulsion should be rescinded.''
In a letter to Bryan Whitman, deputy assistant secretary of defense for media operations, Schulz said the law that created the military commissions says only a judge can make such decisions and only then if disclosure of information would damage national security or threaten an individual's security. He said banning the reporters also violated requirements that military trials of all types be open to press coverage and infringed on the reporters' First Amendment rights.
Additionally, Schulz said the reporters did not violate the ground rules because they did not learn Claus's name at Guantanamo. He noted that no military purpose is served by banning someone for publishing information that's easily available on the Internet and that in any case Claus had surrendered his right to anonymity when he contacted the Toronto Star in 2008 and asked to be interviewed.
"Our position remains unchanged: We did not violate any of the court rules for being at Guantanamo,'' said Miami Herald Managing Editor AmindaMarques Gonzalez. "I feel confident that once they review the facts that they are going to come to the same conclusion and reverse the order.''
Whitman declined to comment.
"This is a matter between the management of the news organizations'' and the Pentagon, Whitman said. "While we are in discussions on that, I don'tthink it's appropriate to get into any details.''
In its order, the Pentagon said the papers could continue covering the commissions, but with other reporters. Schulz said that was not acceptable.
He noted that Rosenberg has covered nearly every commission hearing, that the Toronto Star's Michelle Shephard has published a book about the case in question, and that Steven Edwards of the CanWest News Service has written more than 200 articles on the Khadr case alone.
Barring them, Schulz said, interferes with the papers' ability to use their foremost experts on Guantanamo.
"Carol is one of the longest-running, most knowledgeable reporters on Gitmo anywhere in the country,'' Marques Gonzalez said. "Why would we want tolose such a valuable asset who has years and years of knowledge?''
The appeal was filed on the same day that five human rights groups — Human Rights First, the American Civil Liberties Union, Amnesty International, Human Rights Watch, and the National Institute of Military Justice &mdash wrote Col. David Lapan, the press director for the Defense Department, urging him to reconsider the ban. The groups said the ban was "counter to the Obama administration’s stated commitment to transparency in government."
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