The latest dispute over press access to the military tribunals at Guantanamo Bay has been mostly settled, for the moment. Of the four journalists who were barred in May from future proceedings by the Pentagon’s public affairs office after they published the name of a former military interrogator who appeared as a protected witness at preliminary hearings in the case of the Canadian Omar Khadr, three have been reinstated. And one of them, the Miami Herald’s Carol Rosenberg, has been at Gitmo this week, reporting and tweeting about the latest pre-trial developments in the increasingly strange Khadr case.
But there are many outstanding questions that have yet to be answered about press freedom to access, collect, and publish information about the military commissions, including how future disputes will be resolved. And a consortium of some of the country’s largest and most significant news organizations—which were not directly affected by the recent ban—have joined McClatchy in pushing for a resolution of those issues in the coming weeks, so that when journalists return to Gitmo in August to cover the next stage of Khadr’s trial, they can do with confidence that they’ll be allowed to report freely.
The most obvious outstanding issue is the one that precipitated the ban of the four reporters: whether the injunction preventing reporters from printing “protected information” applies to knowledge not obtained at Gitmo itself. Rosenberg and three Canadian reporters—Paul Koring of The Globe & Mail, the Toronto Star’s Michele Shephard, and Canwest’s Steven Edwards—were banned after writing stories that identified Joshua Claus, a former Army sergeant who was Khadr’s lead interrogator at Bagram Air Base, and who testified at a hearing that he used implied threats of prison rape to intimidate Khadr. Claus’s identity was protected at the hearing, but the reporters were able to identify him based on their prior knowledge—for example, an on-the-record interview he granted Shephard in 2008.
The reporters and their advocates have argued that the interpretation of the Gitmo ground rules that led to the ban was contrary to both logic and the law. As applied by the Pentagon’s public affairs office, the rules “directly restrain a reporter from publishing information lawfully obtained outside of the Military Commissions and hence constitute a ‘classic example’ of a prior restraint,” David Schulz, the lead attorney handling the case for the media organizations, wrote in a letter to Jeh Johnson, the Pentagon’s general counsel. Such an approach “does not further any legitimate military purpose. It simply stifles those journalists on the scene who are best-positioned to illuminate the proceedings of the Military Commissions for the general public, and puts them at a competitive disadvantage to those rewriting from afar. This is a patently unconstitutional restraint.”
That letter was sent July 1 on behalf of the Herald, The Associated Press, Dow Jones, Reuters, The New York Times, and The Washington Post. Since then, Rosenberg, Shephard, and Edwards have been cleared to return, but the issue hasn’t been settled. Before she could go back to Gitmo, Schulz said, Rosenberg had to agree that she understood the Pentagon’s interpretation of the ground rules, and she would abide by it even as media outlets seek to have the rules revised. (The fourth banned reporter, Paul Koring, has apparently refused similar conditions, according to Wired’s Spencer Ackerman, who’s been providing the best coverage of this episode.)
But the news organizations continue to push for rule changes that will make clear that reporters are free to publish information gleaned from non-protected sources. “We felt vulnerable to exactly the same sort of thing later in our reporting,” said Dave Tomlin, the AP’s associate general counsel, in explaining why the wire service signed on to the letter.
Schulz said Johnson has indicated he’s open to discussions, and the attorney hopes a meeting will be convened by the end of July. That would be before jury selection in the Khadr case, currently slated for Aug. 10, begins. (Johnson did not respond to a request for comment.)