Ten months after Gordon’s letter came a more serious headache. At the beginning of May, Rosenberg was at Guantánamo to cover a pretrial hearing in the case of Omar Khadr, the Canadian accused of killing a U.S. soldier. Khadr was only fifteen years old at the time of the attack; he had been brought to the region by his family, which had extensive ties with several terrorist organizations, including al-Qaeda.
At the May hearing, Khadr’s attorneys and the government were arguing about whether Khadr’s statements to interrogators would be admissible at trial. His lawyers claim that Khadr was mistreated so badly at Afghanistan’s Bagram Air Field, and later at Guantánamo, that his confessions, even those he gave to well-behaved interrogators, should be thrown out under the doctrine of “the fruit of the poisonous tree,” a legal metaphor used to describe evidence that has been obtained illegally.
In an article on May 5, 2010, Rosenberg mentioned Joshua Claus, a former U.S. military interrogator who is likely to appear at Khadr’s trial—assuming there is not a plea deal. Claus had questioned Khadr at the Bagram detention facility shortly after his capture, and Khadr’s lawyers say that Claus terrified their client by giving him some lurid cop-show patter to the effect that he would wind up gang-raped in prison if he didn’t cooperate. (In an unrelated case, Claus pleaded guilty in 2005 to mistreating two Bagram detainees who died in custody. He spent five months in prison for that crime.)
The identities of several of the interrogators in the Khadr case, including Claus, had been placed under a protective order by the military-commission judge. During the May hearing, Claus was referred to only as “Interrogator #1.” But after Khadr’s lawyer mentioned in court that Interrogator #1 had been convicted of abusing prisoners at Bagram, the reporters at the base started Googling and realized that it was likely Claus. That made sense, because in early 2008, Claus had contacted the Toronto Star’s Michelle Shepherd to give an on-the-record interview about his role in interrogating Khadr.
It was an obvious decision, Rosenberg thought, to use Claus’s name, given that he had effectively outed himself in that 2008 interview. Three of her colleagues—Shepherd, Steven Edwards of Canwest News Service, and Paul Koring of The Globe and Mail—also mentioned Claus by name in articles on May 5 and 6.
But the Pentagon was not amused. On the afternoon of May 6, Major Bradsher walked into the media hangar to inform the four reporters that they had been permanently banned from covering military-commission proceedings. The conversation happened in public, and there was no immediate chance to appeal. The four reporters left the island the next morning.
They did not go quietly. Their editors immediately filed letters of protest. But the broader fight erupted over the next several weeks, when David Schulz, a prominent First Amendment attorney, placed calls to the legal-affairs staffs at The Associated Press, Reuters, The New York Times, The Washington Post, and Dow Jones. Schulz sent a letter to the Pentagon in the name of all of those organizations, arguing that restrictions on printing public information constituted illegal and unconstitutional prior restraint. On August 2, representatives from those organizations were invited to the Pentagon for an off-the-record meeting.
Bryan Whitman, the principal deputy assistant secretary of defense for public affairs, says that Claus may have given an interview to the Star in 2008, but it was only because of things said inside the Guantánamo hearing room that reporters were able to identify him as “Interrogator #1.” If a military court judge says that witnesses’ identities are protected, then reporters should respect that, Whitman says. “The vast majority of reporters down there followed the rules,” Whitman says. “They didn’t publish the name. Four reporters decided not to.”
Be that as it may, the Pentagon announced in early August that it was acceptable for news organizations to use Claus’s name. And in September, it issued a new set of ground rules, including a provision that makes clear that reporters may publish information that they legitimately obtained outside of their work at Guantánamo.
The Beat Goes On
There have been nights when Rosenberg has been the only person sleeping in the media tent city, which can hold as many as fifty-four people. (Less rarely, she has been there with only one or two other reporters: Michael Melia, of The Associated Press, and Jane Sutton.)
Many reporters complain about the tents, but Rosenberg says they have advantages over the old arrangement, where reporters were housed on the leeward side of the island, far from the courtrooms.