Pentagon releases new Guantanamo court regulation

In an effort to address calls for transparency as the trials of accused terrorists again start to move forward at Guantanamo Bay, the Department of Defense has released an updated version of its military commission regulation with new commitments to speed up and open up the way court filings are made available to the public.

Reporters have been pushing for the reforms -- which include timetables for posting court documents and a new process for reporters to file written objections to “protected” information shielded form public view -- as part of a series of requests for greater and easier accessibility to important information about the Guantanamo-based trials. The changes are especially relevant as the war court resumes and begins to try higher-profile detainees.

Journalists covering trials at Guantanamo Bay in years past had voiced concern that long review processes and otherwise heightened secrecy meant that they sometimes did not have access to the filings discussed in the proceedings they were covering, often leaving them lost.

“Before, it could be impossible to know if there were filings in the cases or when hearings were scheduled. Only weeks or months after the fact, and sometimes after the proceeding had been closed, would the public find out if there were filings or hearings in some of the cases,” David Schulz, an attorney who has been negotiating with the Pentagon on behalf of news organizations that cover the proceedings, told the Reporters Committee last month.

The new Department of Defense regulations make some effort to address these concerns, many of which revolve around providing contemporaneous access to court documents on its newly-launched military commissions website that allows visitors to download documents from each of the military commission’s cases against accused terrorists.

For example, the Pentagon has committed to posting filings and decisions that do not require classification security review within one business day, posting filings that do require a security review within 15 business days (except in “exceptional circumstances”) and posting unofficial transcripts of the proceedings “as soon as practicable after the conclusion of a hearing each day.”

Another regulation, specifically requested by media parties, is the creation of a new process whereby reporters can file written objections to any “protective order,” or information that while not considered classified, is subject to a court order to prevent the public dissemination of the information.

Under the regulation, military judges now have the power to rule on any dispute raised by the parties or the public regarding filings, rulings, orders or transcripts over whether the document was appropriately designated as “protected.” For journalists, this means submitting a request in writing that identifies the reasons why the information should not be kept from the public.

The new guidelines for challenging protected information do not appear to give the media a right to appeal a ruling on their request. However, a later chapter of the regulation does more clearly allow the prosecution to take an interlocutory appeal — or an appeal that is heard before a proceeding is resolved — on any order or ruling of a military judge that relates to the closure of proceedings to the public or the protection of classified or protected information.

The new reforms, when implemented, will move the offshore military commissions procedurally closer to their stateside civilian counterparts.

Press advocates, such as Schulz, have been trying to make the case that First Amendment rights of access to criminal and military trials should also apply to Guantanamo, a place specifically chosen to hold and prosecute terrorists outside of U.S. legal jurisdiction, but the reforms released this month did not afford the journalists the same level of access as a stateside trial.

Deputy Secretary of Defense Ashton Carter, writing in the foreword to the new “Regulation for Trial by Military Commission,” said that the civilian and military trials (wherein service members are tried) differ from the Guantanamo military commissions for significant reasons.

“To the extent that the guidance here differs from that which applies in the courts-martial, that difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need, consistent with the Military Commissions Act of 2009,” he wrote.

Carter signed off on the new regulation on Nov. 6, just days before the much-anticipated arraignment of Abd al Rahim al Nashiri, the Saudi-born detainee accused of masterminding the deadly USS Cole bombing in 2000. The trial will likely be the first full military commission trial under President Barack Obama and the first capital case heard by the offshore court.

The Nashiri case will likely be the first critical test for the administration’s continued pledges to increase transparency in the controversial offshore commissions after a rocky past with reporters. Since the trials began under the Bush administration and continued under Obama, news organizations have taken issue with what they say is an unnecessary degree of secrecy that made reporting on the proceedings incredibly difficult.

The new regulation follows other media access reforms ushered in by the Pentagon in recent months, including the new military commissions website and a viewing location at Fort Meade that allows the press and public to watch a closed-circuit broadcast of the Guantanamo proceedings.