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Military courts continue to stymie public access

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AP Photo by LM Otero Reporters are escorted to the courthouse for the court-martial of Maj. Nidal Malik Hasan, who…

AP Photo by LM Otero

Reporters are escorted to the courthouse for the court-martial of Maj. Nidal Malik Hasan, who is charged with murder and attempted murder for the 2009 attack that left 13 people dead at Fort Hood, Texas.

Carol Rosenberg, a Miami Herald reporter and veteran at covering Guantanamo, said reporters often will not have timely access to basic court documents that provide background and important context about what the lawyers are discussing in court. And then there is the ever-present possibility that officials can cut off the court’s audio feed to the viewing room used by reporters at any moment, a process necessary to protect classified information but that often occurs without further explanation, according to Rosenberg.

Moreover, reporters will often be excluded from certain proceedings and will never learn basic information about what occurred, as with one recent example where the name of the hearing itself was considered so secret that the court schedule merely said “classified.”

With those obstacles, coupled with delays in obtaining court transcripts, reporters often don’t fully understand what is occurring, making reporting on the proceedings — and public understanding of what’s occurring at Guantanamo — incredibly difficult, Rosenberg said.

“You would be hearing court arguments about filings that you’re not allowed to see,” she said. “There are a lot of people with their finger on the (audio delay) button or their hand on the redacting pen.”

AP Photo by Bill Gorman

Reporters covering the military commissions at Guantanamo Bay, Cuba, say they struggle to gain access to court documents that in civilian courts are presumed open.

Despite government providing some access to the military commission based in Guantanamo Bay, Cuba — granted only after lengthy legal battles led by reporters and media organizations that resulted in the military creating media access rules for the base — basic transparency for the court remains elusive.

At the same time, access to basic military court-martial proceedings against U.S. military personnel, including that of recently convicted Army Pfc. Bradley Manning, remains similarly opaque after the military’s highest court, the U.S. Court of Appeals for the Armed Forces, in April denied a group of journalists a right of access to court filings in his court-martial.

In that case, the court determined that military courts lacked jurisdiction to entertain challenges brought by journalists or the public seeking to open up court-martial records and proceedings. The consequence of the decision means that journalists would have to file a separate challenge in civilian federal courts or try to obtain the documents under the federal Freedom of Information Act.

But reporters and media attorneys say that FOIA is an imperfect tool to use when trying to access court-martial records because the inherent delay built into the process makes getting timely access to records nearly impossible.

And because the Judge Advocate Generals (JAG) possess the court records, rather than a centralized clerk’s office, officials often process such requests with an eye toward using FOIAs exemptions rather than seeing whether the documents must be disclosed under recognized common law or First Amendment rights of access to court records.

“In the Manning case, someone was redacting things like the name of the judge” under FOIA, said Eugene R. Fidell, who teaches military justice at Yale Law School and has also represented a number of media organizations seeking access to military court records. “This is not a serious way to conduct public business in this day and age.”

The obstacles to accessing and covering military court proceedings — be it basic hearings of military personnel or the ongoing trials against those detained in Guantanamo — remain high even after concerted efforts by the media to make them more transparent. The only way to ensure greater access, reporters and media lawyers said, is for journalist to continue to push for more openness and for media organizations to either bring legal challenges seeking access to the proceedings or call on Congress to restructure military courts to allow for better access.

“The Pentagon has figured out how to create a certain degree of illusory transparency,” Rosenberg said. “You do need reporters banging on the door and showing the judge that we disapprove of closure.”

Guantanamo courts still difficult to cover

Rosenberg, who has been covering Guantanamo for more than a decade, said that because the government can cut off access to the commission’s proceedings in so many different ways, she is constantly assessing whether to challenge secrecy and closures.

Reporters have been pushing for years for greater access to Guantanamo, particularly the commission’s trials of accused terrorists, resulting in the Pentagon creating access rules that allow reporters to challenge decisions to close proceedings.

One of the biggest developments was the creation of an online docketing system where reporters and the public can access Guantanamo commission records, said David Schulz, a media lawyer who has led efforts to gain greater access to Guantanamo.

But even with the increased access, problems persist, Rosenberg said. The biggest problem with the docket is that a document will only be posted publicly after various U.S. intelligence and defense agencies are given 15 business days to review the files and redact anything they believe would harm national security.

That makes gaining timely access to information difficult, especially as reporters are preparing to cover a particular hearing or proceeding, Rosenberg said.

“These are fundamental, constitutional issues and for reporters to do their best they need to read in and then get background,” she said.

And even when reporters can get access to documents or view proceedings, officials still take steps that appear to contradict the transparency media organizations have fought for, Rosenberg said.

For example, Rosenberg recently reported that in documents posted on the docket, officials redacted the name of a retired Navy Captain who acts as a victim’s advocate for the survivors and family members of victims of terrorist attacks and also sometimes appears as a witness at the proceedings.

The irony is that the woman, ret. Capt. Karen Loftus, was profiled in The New York Post and also regularly introduces herself to the media when she is escorting victims of al-Qaida attacks around Guantanamo.

“There are these bizarre redactions that are at odds with this notion of transparency,” Rosenberg said.

Covering the proceedings live also creates additional hurdles, Rosenberg said, as in addition to cutting off the audio feed from the courtroom, officials can also close the proceedings entirely.

Schulz said that any court closure is supposed to be narrowly tailored to prevent a particular harm and still afford the greatest public access to the proceedings as possible.

But in practice, Rosenberg said, that’s not always the case as the court can go in and out of public session on a whim, which can make it difficult to challenge the secrecy.

Although the commission will provide a transcript of the closed proceedings, it is often redacted and is not given to the public until at least five days after the proceeding, Rosenberg said.

“All of these things in combination make it a court like no other,” she said.

Rosenberg recently did have some success obtaining documents detailing the list of 46 Guantanamo prisoners who are being held without trial because officials believe that they are too dangerous to be released but cannot be prosecuted.

With the help of students from Yale University’s Media Freedom and Information Access Clinic, Rosenberg filed a federal FOIA lawsuit after officials failed to produce documents in response to her request. Officials turned the list over to shortly before they were scheduled to update a judge on the status of the request.

“Frequently, the only way to be taken seriously is to file suit,” Rosenberg said. “These students held their feet to the fire and it was brilliant.”

Journalists hindered in access to courts-martial

Although reporters were able to successfully assert some of their access rights to the military commissions in Guantanamo, the U.S. Court of Appeals for the Armed Forces this spring dealt a blow to efforts to create similar access to court-martial proceedings.

The divided court ruled in April that it only had the power to review matters relating to the “findings and sentence” of a particular court-martial. This meant that the court did not have the jurisdiction to entertain a challenge brought by media organizations seeking access to the Manning court-martial proceedings.

In ruling that it could not even consider a challenge brought by journalists or the public to open up court-martial proceedings, the appellate court said that the only way the public could vindicate its rights of access would be to file a separate lawsuit in a traditional federal court.

The military court’s ruling creates a bizarre situation where journalists will have to ask a federal judge to enforce a right of access into the courtroom of a military judge, said Gary D. Solis, an adjunct law professor at Georgetown and George Washington universities and retired U.S. Marine Corps JAG. In essence, the civilian judge would be telling the military judge how to conduct its own trial as it relates to providing public access.

The ruling also had practical consequences for reporters covering the Bradley Manning court-martial, as they had to rely on FOIA to gain access to court records, which made contemporaneous reporting about the trial difficult, Solis said.

“You are in brave new world without a road map,” Solis said of trying to cover the trial without timely access to records. “You have to try and ascertain what’s going on as it’s going on and you don’t have access to any of the usual guideposts and legal landmarks.”

Early on in the coverage of the Manning trial, there was no central website that contained the court documents. Eventually, the military uploaded the files to an online FOIA reading room.

When the records of the Manning trial were finally released under FOIA, there were curious redactions similar in many ways to those made in the Guantanamo military commission, Solis said. That included redacting the name of the presiding judge, U.S. Army Col. Denise Lind, despite the fact that media and public present in the courtroom could see her name placard.

Solis said that what is needed is a concerted effort by members of the news media to bring lawsuits in federal courts demanding access or to change the law so that they can have access to courts-martial just as they do to civilian courts.

“Nobody has been willing to make this a significant issue,” Solis said. “Nobody is fighting for the public’s interest in achieving a modicum of transparency.”

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of media access in the Manning case and called on Congress to revisit the issue and increase transparency in military courts in the wake of the military court’s ruling.

Reporters Committee Executive Director Bruce Brown said in a statement at the time that “it is time that Congress mandates that military courts themselves handle their own records, and create a process to allow timely access, just like every civilian court in the country has always done.”

FOIA not the answer to accessing court-martial records

Both Solis and Fidell agreed that no matter how journalists attempt to pursue access to military court-martial proceedings, using FOIA to obtain documents is unworkable.

“FOIA is not an effective means for getting current information or near current information on any court-martial because the initial delay is sufficient in and of itself to defeat your goal,” Solis said.

The main problem in obtaining court-martial records is that the delayed response built into the FOIA process — where agencies have 20 days to respond to requests for information — means that by the time a reporter gets records, the case has already been resolved, Solis said.

“By that time, the sentence has been announced and the accused has been led away to the brig,” he said.

Solis said that he has filed multiple FOIA requests for documents related to courts-martial that have long since concluded and has been forced to wait weeks before obtaining the records.

Additionally, because the requests for court-martial records are processed under FOIA, officials approach the records with an eye toward redacting information under one of the statute’s exemptions, Fidell said. That creates a situation where evidence, testimony, or comments made by the lawyers or judge in an open court can be subsequently redacted.

“The idea that any piece of information that is expounded in a courtroom can thereafter be redacted is goofy,” Fidell said.

And an Air Force policy announced late last year instructs officials processing FOIA requests to consider whether the Privacy Act, which protects personally identifying information contained within a system of records, would prohibit release of court-martial records.

According to the policy, certain court-martial records would not be released under FOIA unless the individual who is identified in the records consents.

Jennifer McDermott, a staff writer who covers the military for The Day in New London, Conn., said that she has been relatively successful in obtaining records in the few courts-martial she has covered at the nearby naval base.

McDermott, however, does not rely on FOIA to obtain court-martial documents. Instead, she uses her relationships with officials working in Public Affairs Offices of military bases to obtain records on particular proceedings she is interested in covering.

“What I’ve tried to do mostly is in-person interviews and hoping that people will give me what I need at the time,” she said. “You kind of take it on yourself to look at the court docket, see what’s coming up and then ask questions about it.”

Although Solis said he was encouraged to hear that some reporters are able to more easily access military court records based on their relationships with military officials, it highlights a larger problem because it means that there is no uniform policy for ensuring that every member of the press or public can obtain the same records in a timely fashion.

Fidell said that the problem of obtaining timely access to court-martial records originates with the military’s inability to recognize that such proceedings should be treated like civilian trials and not like a government record subject to FOIA.

“That’s a category error,” Fidell said. “These are court records.”

But by inhibiting timely access to records of courts-martial, officials are doing more than making it more difficult for journalists to cover military justice, Fidell said.

“The military justice system is very important to national defense and public confidence in the system is very important,” he said. “I can’t think of a better way to thwart public confidence than by not exerting yourself in the direction of transparency.”