Reform comes slowly to Guantanamo Bay

When the arraignment of Abd al-Rahim al-Nashiri, the Saudi-born detainee accused of masterminding the deadly USS Cole bombing in 2000, goes forward at Guantanamo Bay in November, the alleged terrorist will not be the only one facing judgment.

A series of new media access reforms introduced for the military commissions will be on trial with him.

The upcoming Nashiri proceedings will be the first test of a number of Pentagon transparency measures — largely responses to ramped up requests from reporters after marked difficulties covering the last round of trials in 2010 — and will mark the first full military commission trial conducted under President Barack Obama, who has repeatedly pledged to open up the controversial war courts.

And journalists, thus far, have welcomed the reforms.

A planned closed-circuit broadcast of the offshore proceedings will allow dozens more reporters to cover the trials stateside. A sleek new website will aim to provide up-to-date information about military commission developments. And a yet-to-be-announced policy will regulate the process of reviewing, redacting, classifying and posting the court documents as well as provide reporters with a mechanism to challenge sealed trial filings and secret hearings.

“What we are hoping to see, and starting to see, is a departmental recognition that there are standards governing what they have to do, not just a military prerogative to conduct the proceedings however they want,” said David Schulz, an attorney who has been negotiating with the Pentagon on behalf of news organizations that cover the proceedings.

But many are waiting to see if the proposals will begin to change the culture of secrecy that has infamously shrouded Guantanamo Bay in the past.

Addressing a contentious past

Tensions between the press and authorities charged with running the Guantanamo Bay military commissions soared last year when officials made a controversial and since-rescinded decision to permanently ban four reporters from the naval base for publishing the name of an interrogator who testified at the trial of Omar Khadr, who has since been convicted on a number of terrorism-related charges. Officials had deemed his name to be “protected information” despite the fact that the identity of the military interrogator was already publicly known.

The move provoked outrage from journalists for whom the bans represented the culmination of a series of frustrations over what they saw as an unnecessary degree of secrecy that prevented meaningful coverage of the trials.

“Guantanamo was an anomaly in terms of press access … not only for any military installation, but for any court,” Nancy Youssef, the president of the Pentagon Press Association, told The Reporters Committee for Freedom of the Press last year.

Photos with a sliver of a concrete bunker or a piece of fencing could be deleted for containing “sensitive information.” Filings discussed in court that were not circulated left reporters lost in the proceedings. Already public information, such as the name that got the four reporters expelled, could be deemed “protected” or “classified.” And expenses, quotas and living conditions limited the number of journalists who would travel to cover the trials.

“Guantanamo was so off the mark that we were just trying to get it back within reason,” Youssef said.

Triggered by the obstructions to access, the Pentagon Press Association and other news organizations began pushing for change.

And the Pentagon seemed to listen.

By the fall of 2010, the department unveiled a new set of ground rules that eased restrictions and better defined rules for reporting on the base. The orders had a mixed trial run during the coverage at the base last fall, with some journalists voicing concerns that officials were ignoring or misinterpreting the new standards. But for many, the move signaled that leaders in the Pentagon were ready to take steps in the direction of change.

More recently, with continued calls for reforms and an expected spike in interest over the Nashiri case and the yet-to-be-scheduled trials of several 9/11 plotters, the Pentagon has been especially receptive to media requests for better access, said Pentagon spokesperson Bryan Whitman.

“The department has made every good faith effort to carry out the guidance given to us to make the proceedings as transparent as practicable, and we think we are addressing [press concerns] in a significant way on the eve of these important trials,” Whitman said. “We have been committed to that from day one and have had to make improvements along the way. That is the stage we are at now.”

Opening up

In part because of the recent lull at the Guantanamo courts, which have seen little activity since Obama green-lighted a resumption of the military commissions in March 2011 after failing to move the trials to federal courts ashore, the newest reforms have come quietly.

In early October the Pentagon launched www.mc.mil, a new website designed to provide up-to-date information about the military commission, without much fanfare. The new Web portal streamlines information for reporters, guiding visitors through the background and history of the commissions, news updates, and information about the media operations at the Camp Justice trial facilities.

Arguably the most significant feature of the website, and one specifically designed to address reporter grievances, is a tool that allows users to download copies of the court filings from each of the military commission’s cases against suspected terrorists. On the day the website launched, officials inaugurated the feature by posting the referred charges against Nashiri, who faces the death penalty if convicted for his role in the naval ship bombing.

“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,” Schulz said.

Schulz said he counted the Pentagon’s latest commitments to contemporaneous access as a significant step forward. But now, he said, there is still a question of whether the military commissions can keep the filings up-to-date.

“If the filings in the cases still take weeks to clear, and the cases are very hard to follow without them, you will still have reporters watching the proceedings not knowing what each of the sides are arguing about,” he said, “and it becomes a meaningless exercise.”

The progress, thus far, has received mixed reviews. Carol Rosenberg, a reporter who has covered the Guantanamo Bay detention centers and trials since the facility opened in 2002 and was one of the four reporters temporarily banned from the military commissions, wrote in her review of the website for The Miami Herald that the $500,000 project is still, in its current form, a “hodgepodge of secrecy.”

Pointing to examples of now-secret documents that were once handed out to reporters, inconsistencies in the explanations of why officials redacted, classified or sealed certain court filings, and missing information, she wrote, “Whether the website will accomplish media hopes of timely transparency is anything but certain.”

At least some of the lingering concerns reporters have on this front will be addressed in another round of reforms the Pentagon will likely announce before the Nashiri hearings.

Soon reporters are expected to be able to challenge sealed, classified and protected case material and the closing of hearings before a judge, according to a senior defense official. The new mechanism will move the offshore military commissions legally closer to their stateside civilian court counterparts.

Press advocates have been trying to steer the courts in this direction as they continue to make the case that the First Amendment rights to access criminal and military trials should also apply to Guantanamo, a place specifically chosen to hold and prosecute accused terrorists outside of U.S. legal jurisdiction.

Other changes, according to defense officials and media attorneys, include a policy to make motion papers available to the public as quickly as they can be reviewed for national security information and revised and standardized regulations for classifying, redacting and posting documents.

It would still be possible, a senior defense official said, that in emergency last-minute filing situations certain documents may not go through classification procedures in time for their relevant hearings, but that under normal circumstances their goal is to make sure such problems would not happen.

“There are challenges here unique to military commissions,” said Pentagon spokesperson Whitman. “One, that we are still engaged in a military conflict and two, that in the process there are any number of classified documents used in a case. We have to balance transparency and what we can change with security issues, but we think we have gone a long way … to facilitate the media covering the trials with anything they would like to have if they were covering a regular court case.”

Live from Guantanamo Bay

One of the most anticipated reforms for the next round of trials will have little effect on the journalists reporting from Guantanamo — some reporters will not have to go to the offshore naval base at all.

Officials are preparing a closed-circuit broadcast of the trials for journalists at a viewing site in Fort Meade, Md., with space for up to 100 journalists who want to save the time, expenses and hardships of covering the high-profile trials at the base itself.

In the past, reporters wishing to cover the trials at Guantanamo Bay had to vie for one of 60 spots and pay the expenses of a Pentagon-chartered flight to the media tent city set up on the remote island.

But with the new plan, journalists selected to view the trial at Fort Meade will see the same video feed most reporters on the base watch in a soundproof area adjacent to the courtroom: the trial, with a 40-second delay so that a censor can mute sensitive national security information as it progresses.

Press representatives had specifically requested the video feed, according to Pentagon officials, which they modeled after similar plans for a Norfolk, Va., viewing site for families of the victims of the USS Cole bombing.

Pentagon spokesperson Whitman said that they selected the Washington-area location at Fort Meade so they could best accommodate media organizations, which generally send their national or defense journalists already covering news from the nation’s capital to cover the trials.

“There was a real concern because they chose to conduct these proceedings at an island off the coast of the U.S., which in itself puts a limitation on a reporter’s ability to access the trial,” said Schulz, one of the attorneys who pushed for the viewing stations on behalf of the press. “So it is very significant that they will make the feed available in the U.S., and it is a recognition of the public’s need to follow the proceedings even when they are conducted at a remote, hard-to-access location.”

The broadcast of the trial could be beamed to journalists at Fort Meade as early as the Nashiri arraignment currently scheduled for Nov. 9, Whitman said.

Reporters who still want the Guantanamo Bay dateline will have the option to go to Gitmo, but Whitman added that the Pentagon agreed to the new system so that they could better accommodate the increased media interest in viewing the increasingly higher-profile trials.

Although reporters welcomed the plan to stream the proceedings stateside, the reform stirs up old concerns.

For one, reporters who have covered the trial said that they want an explanation as to when and why military censors press a white noise button during the trials, a mechanism that causes the feed to fall silent in order to prevent revealing certain national security information.

“We can appreciate the concern,” said Whitman, “and we are looking at opportunities to provide more of an explanation. But by the nature of being classified, it always limits what you can say about it.”

But the new initiatives don’t mean much will change for journalists who choose to report from Guantanamo Bay.

Many of the issues journalists had — from the expenses of the Pentagon-chartered flights to the spartan living conditions of the media tent city and the severe restrictions placed on their movements and communications on the island — will likely still be a price reporters pay for the more contextualized reporting of an on-location dateline.

“It is an austere environment down there and there are certain constraints for everyone involved in the military commissions process,” said Whitman, who said that other than the rewritten ground rules, he did not expect conditions would be different for reporters who choose to cover the next round of trials on-site.

Rosenberg, who has made the journey to Guantanamo Bay dozens of times as a reporter, called the remote feeds a “remedy and relief valve” for news organizations that do not have the resources to put their reporters on the ground. But, she added, she thinks that culture of secrecy may still extend across the Atlantic.

“I hope,” she wrote in an email, “that the military down there won’t see that as another excuse to avoid answering questions of substance or shield command staff from reporters’ interviews and inquiries.”

As for the transparency slogans, Rosenberg wrote, she said she is still waiting for officials to again give more than superficial, highly scripted answers to interview requests and to account for the details of how they spend “huge multi-million dollar buckets” of federal money operating their facilities.

Like Rosenberg, other reporters are waiting to see how the Pentagon’s broader effort to reform unfolds in a place where secrecy seemed endemic.

“The [Pentagon] has been responsive, and they have been interested in listening to our concerns,” said attorney Schulz.

“Not that they have given us everything we asked for, and not that they are acting entirely out of altruistic motives, there are Constitutional requirements for what they can do, but they have certainly been receptive. They have recognized the importance of the press in informing the public and recognized that transparency is critical to the success and legitimacy of these trials. Now, it falls to the question of implementation.”