Limits Persist on Access to Guantanamo Proceedings, Records

The expulsion of four reporters from the U.S. military detention center at Guantanamo Bay, Cuba, along with two court rulings related to detainees and the hearings being conducted there--all of which occurred in the summer of 2010--highlighted the strained relationship between the Pentagon and U.S. media over coverage of the controversial base.

Pentagon Bans Four Reporters from Guantanamo

On May 6, the Pentagon banned four reporters from covering military hearings at the Guantanamo Bay base. The reporters, Carol Rosenberg of The Miami Herald, Michelle Shephard of the Toronto Star, Paul Koring of the Toronto Globe and Mail, and Steven Edwards of Canwest Newspapers, were accused of having violated the Pentagon’s ground rules for covering Guantanamo by publishing the name of a witness in the hearing of Canadian detainee Omar Khadr. The reporters had been instructed to identify the witness, former Army Sgt. Joshua Claus, as “Interrogator No. 1.”

The ground rules, which all reporters are required to sign in order to be allowed to cover proceedings at Guantanamo Bay, stipulate that interviews must be approved in advance, military personnel must escort journalists everywhere they go on the base, and that, among other things, journalists are not allowed to chew gum or communicate with Cuban or Haitan migrant workers on the base. In a commentary on the McClatchy website, Rosenberg contended that the rules change daily and “without rhyme or reason.” A version of the ground rules is available via the Columbia Journalism Review website at http://www.cjrarchive.org/img/posts/Gitmo_Ground_Rules.pdf.

The banned reporters argued that the name of the interrogator in the Khadr case had been public knowledge for years and that no rules were broken. Claus was publicly identified as Khadr’s interrogator in a hearing at Guantanamo in 2008, and gave an on-the-record interview soon afterward to Shephard for the Toronto Star, according to a story posted online May 6 by McClatchy Newspapers’ Washington bureau.

Media organizations and transparency advocates criticized the journalists’ expulsion. “That reporters are being punished for disclosing information that has been publicly available for years is nothing short of absurd—any gag order that covers this kind of information is not just overbroad but nonsensical,” said Jameel Jaffer, the deputy legal director for the American Civil Liberties Union, in the May 6 McClatchy story. “Plainly, no legitimate government interest is served by suppressing information that is already well known.”

Joel Simon, the executive director of the Committee to Protect Journalists, said the expulsion of the journalists represented “a long history of lack of access for journalists covering military tribunals and other events at Guantanamo Bay,” adding that banning the four reporters was a “very drastic step,” according to the May 6 McClatchy story.

The Pentagon responded by defending the ban, emphasizing that the reporters had violated the written ground rules they had agreed to follow. In a letter to David Schulz, an attorney representing Rosenberg, Bryan G. Whitman, a principal deputy assistant secretary of defense for public affairs, said that although the Department of Defense was “correct” to ban the reporters, the department would “consider lifting the coverage ban on these reporters if they individually request reinstatement,” according to a June 15 story in The Miami Herald.

On July 3, a coalition of media organizations including McClatchy Newspapers, The Associated Press, Dow Jones & Co., The New York Times, Reuters, and The Washington Post sent a letter to Pentagon General Counsel Jeh Johnson challenging the expulsion of the journalists as unconstitutional and urging that the reporters be reinstated. In the letter, the organizations argued that the Pentagon’s application of the ground rules in barring the reporters is “plainly illegal” because it prevents publication of information that is already publicly available, according to a June 3 story in The Miami Herald. The letter emphasized the urgency of lifting the ban immediately, noting that the hearing the reporters were covering was slated to resume on July 12, and that the reporters needed time to return and revise the 13-page agreement they are required to sign before being allowed to report on Guantanamo proceedings.

On July 9, the Pentagon reinstated two reporters, Rosenberg and Shephard, after they acknowledged in writing that they had broken military rules and pledged to abide by the Pentagon’s ground rules, according to a July 9 story in The New York Times. The Times reported on July 20 that Steven Edwards was also reinstated after he wrote a letter indicating that he understood why he had been banned. Paul Koring refused to write the letter and remains unable to return to the base, according to the July 20 story in the Times.

Schulz told the Times on July 9 that he intended to continue fighting for looser restrictions on journalists covering Guantanamo hearings, noting that the reinstatement of the reporters was conditional and left many issues unresolved. “Reporters are operating under these unconstitutional and illegal guidelines,” Schulz said. “And the only reason Carol is able to go back is she agreed she would abide by the guidelines as they’re currently constructed.”

The July 20 story in The New York Times said the episode raised broader questions about the constitutionality of requiring reporters to agree to ground rules in their coverage of the detention camp at Guantanamo Bay and the Obama administration’s record on transparency and openness in regard to military proceedings. Lawyers for media companies quoted in the Times story argued that many of the rules to which reporters are required to agree are unnecessary and impede news organizations’ ability to report on Guantanamo. “I really think there’s a failure to believe that access is important,” said Andrea Prasow, a senior counsel for Human Rights Watch and former defense lawyer for Guantanamo detainees, in the July 20 Times story. “I can go down there because I have been cleared by the Defense Department to get on a government plane and attend the hearings. But the rest of the world can’t do that. These trials aren’t public. And so it’s that much more important that the government be as open as possible.”

For background on reporters previously barred from covering Guantanamo Bay detention facilities, see “Pentagon Bars Reporters from Attending Guantanamo Hearings” in the Spring 2007 Silha Bulletin, and “Reporters Forced to Leave Guantanamo Bay” in the Summer 2006 Silha Bulletin.

Court Orders Release of Guantanamo Detainee Photos

In a ruling on a Freedom of Information Act (FOIA) suit filed by International Counsel Bureau and law firm Pillsbury Winthrop Shaw Pittman LLP, a federal judge on July 12, 2010, ordered the release of 47 photographs of four Kuwaiti Guantanamo detainees, leaving open the possibility that the government may also be required to disclose up to 500 hours of video of them. International Counsel Bureau v. Dept. of Defense, Civil Action No. 08-1063 (JDB), 2010 U.S. Dist. LEXIS 69488 (D.D.C. July 12, 2010)

In the ruling, D.C. District Judge John Bates rejected the Defense Department’s arguments that the photographs of the detainees should be withheld under FOIA Exemption 6, which covers “the disclosure of [records] which would constitute a clearly unwarranted invasion of personal privacy.” Bates noted that the Pentagon argued that releasing the photos might violate the detainees’ privacy because it could lead to reprisals, but wrote that in order to assess a claim under Exemption 6, the focus “must be solely upon what the requested information reveals, not upon what it might lead to.” However, Bates ruled that the government could withhold portions of videotapes showing “forced cell extractions” of the four detainees, Fawzi Al Odah, Khalid Al-Mutairi, Fouad Al Rabiah and Fayiz Al Kandari, under FOIA Exemption 1, which prevents disclosure of records that would harm national security. Bates wrote that the Pentagon was correct that these portions of the videotapes, “if released, would permit individuals ‘to develop counter-tactics,’ thus ‘placing military members at risk.’”

In a July 12 post on Politico.com, Ronald Schechter, the lawyer who brought the suit, said two of the four detainees included in the FOIA request have been released. He said the suit was filed on behalf of the detainees’ family members, who had not seen them in years.

For more on the release of photographs of detainees in U.S. military custody, see “Supreme Court Vacates and Remands Detainee Photo Case After Congressional Action” in the Fall 2009 issue of the Silha Bulletin and “Detainee Abuse Photos Ordered Released” in the Fall 2008 Bulletin.

Military Judge Seals Guantanamo Plea Agreement

On August 10, 2010, a U.S. military judge sealed the plea agreement in the first conviction at Guantanamo Bay since President Barack Obama took office. The details of the agreement included the maximum sentence possible for Guantanamo detainee Ibrahim Al-Qosi, a former cook for al-Qaida who pleaded guilty in July to conspiracy and material support for terrorism, according to an August 10 post on the website of the Reporters Committee for Freedom of the Press.

Navy Capt. David Iglesias, a spokesman for the military commission’s prosecutors, declined to comment in detail on why Judge Nancy J. Paul, an Air Force lieutenant colonel, sealed the agreement, according to an August 10 story in The Washington Post. Iglesias said that the plea raised “security issues” and that sealing it was beneficial to both the government and al-Qosi. Iglesias said al-Qosi’s sentence would be made public after military officials review the record of the trial, a process that could take several weeks.

According to an August 10 story by The Associated Press, the sealing of the sentence is a first for the military tribunal system, which Obama pledged to make more transparent during his first week in office.

For more on Obama’s early pledges of transparency, see “Obama Promises More Government Openness; Skeptics Demand Immediate Results” in the Winter 2009 issue of the Silha Bulletin and “Obama’s Policies Promote Openness; Some Secrecy Persists” in the Spring 2009 Bulletin.

- Ruth DeFoster
Silha Research Assistant

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