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.)
If that meeting does occur, it may include some other agenda items, as news organizations use this episode to raise outstanding grievances about control of the press at Gitmo. For the AP, that’s largely about treatment of its photographers and videographers. According to Tomlin, their recordings are subject to review before they leave the island to determine whether they contain images of protected sites—and material that’s deemed to cross the line is deleted. The AP doesn’t object to “reasonable and rational conditions,” Tomlin said, but staffers have complained that the decisions seem to vary arbitrarily between reviewers, and there is no opportunity to preserve the images pending an appeal. The wire service has raised these objections before, to no avail; it’s now hoping that putting them on the agenda for a collective discussion will lead to changes.
Attorneys for other outlets raised additional concerns. Both David McCraw, assistant general counsel for The New York Times, and Jason Conti, associate general counsel for Dow Jones, mentioned an ongoing effort to gain routine access to motion papers and other court documents as the commission’s proceedings are underway. Public access to the docket is taken for granted in civilian courts, but not in courts-martial, said McCraw—and, so far, military practice has prevailed at Gitmo. They and other news organizations have pressed this case before, but it hasn’t been resolved.
The records issue points to the common thread in all these disputes: a struggle over
whether the logic of civilian courts, in which there’s a presumption toward access and a right to appeal, or military environments, in which local commanders wield authority, should prevail at Guantanamo.
“What we have is two different world views,” Schulz said Tuesday. “The military is used to having complete and total control of what happens on military bases.” That’s an expectation that’s fostered by the physical circumstances at Guantanamo—reporters depend on the Defense Department for transportation to and from the base—but that is inconsistent with the statutory and constitutional guarantees of a free press at the commissions.
That’s why, in addition to resolving specific issues, the news organizations are hoping to establish due process provisions for future disputes, such as a requirement for factual findings by a military judge before any action—like disciplining a reporter, or trashing photos—is taken. (After the four reporters were barred, many press observers noted that it was the Pentagon’s public affairs shop—not the presiding military judge—that imposed the ban; the appeals went to higher-ranking public-affairs officials.)
Given the history of unresolved complaints, you might think there’s little reason to expect change. But the lawyers, at least, are hopeful that by presenting a united front, and by taking their grievances to the Pentagon’s attorneys rather than the brass, they’ll do well this time around. “We’re optimistic that the lawyers at the Department of Defense understand our concerns,” Schulz said. Come August, we should know whether that optimism was well-placed.Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.