Kept at Bay, in Guantanamo

Journalists remain in the dark over access to military tribunals

From the Fall 2003 issue of The News Media & The Law, page 10.

By James McLaughlin

Nearly two years have passed since President Bush issued the order to create military tribunals to try suspected international terrorists. But even as the ranks of alleged terrorists held by the U.S. military in Guantanamo Bay, Cuba, have swelled to a reported 660, as of late October, the government has yet to submit its first case to be tried under military regulations.

On July 3, 2003, the Pentagon announced it had designated six “enemy combatants” detained at Camp Delta, the Guantanamo military prison, as subject to Bush’s order on tribunals. But there still has been no word on when the first tribunals will be held. Deputy Defense Secretary Paul Wolfowitz has yet to approve the filing of specific charges in any case, and the Pentagon has been mum on when that task will be completed.

Still, the prospect of the first American military tribunals since shortly after World War II has generated considerable debate about their fairness and legitimacy. One of the chief concerns is whether the proceedings will be sufficiently open to inspire public confidence in their fairness.

“Transparency is a critical part of the fairness of the system,” says Eugene Fidell, president of the National Institute for Military Justice, and a private practice lawyer in Washington, D.C. “Americans don’t like secret courts.”

Because the tribunals will likely take place in Cuba, the general public will have virtually no chance to attend the proceedings, leaving the media as the only independent monitor. As a result, journalists say, robust media access is even more important than usual.

“The public has to have enough information to make its own judgment about the fairness of the proceedings,” says Richard Serrano, a national affairs correspondent for the Los Angeles Times.

So far, however, the government has revealed little about its plans for media access to the tribunals. The Defense Department regulations implementing the November 2001 order give military officials broad discretion to shut out reporters.

Most notably, the Pentagon’s Military Commission Order No. 1 allows the presiding officer of a military tribunal — consisting of three to seven members — to close a proceeding for any one of numerous reasons, all of which are left to the officer’s discretion. The reasons include protecting classified information, ensuring the physical safety of participants, preventing disclosure of intelligence sources or methods, and, most vaguely, protecting “other national security interests.”

The order does not establish any procedures for the media or others to challenge a closure decision, unlike in court martial hearings. The Pentagon’s spokesman for military commissions did not return a call or e-mail message seeking comment.

Such broad discretion over judicial secrecy could be a cause for concern, says Darryll Jones, a University of Pittsburgh law professor who has been named a “Qualified Civilian Defense Counsel,” the Pentagon’s designation for civilian attorneys who may appear before the tribunals.

“There is certainly a risk of abuse,” Jones says. “There can be legitimate reasons for closing tribunal proceedings, but the government also has to respect basic civil liberties.”

Even if a proceeding is not entirely closed, there are other ways the government can limit media access — used by some federal courts — such as prohibiting cameras, delaying or barring the release of documents and transcripts, or showing the proceedings only by closed-circuit television.

Although the Pentagon has not said if it intends to rely on closed-circuit TV — the government would control what is shown — it has already barred the press from photographing or videotaping the proceedings. Military commission rules also say that open proceedings “may,” but do not necessarily have to, include public release of transcripts, and only “at the appropriate time.”

Despite such authority to keep the media at bay, some predict the government will have little choice but to make the proceedings as open as possible.

“The military is very sensitive to the notion that if they’re secretive about the tribunals, it’s easier to label them kangaroo courts,” Jones says. “They need the proceedings to be judged by the international community as ultimately fair.”

If the public is kept too much in the dark, he added, there could be political fallout in the U.S. and overseas.

Zealous defense counsel can also serve as a check on excessive secrecy.

Such was the case of Senior Airman Ahmad al-Halabi, one of two U.S. translators in Guantanamo accused of spying. Halabi was detained on July 23, 2003, and his arrest was initially kept secret. But when Air Force prosecutors took the unusual step Sept. 15 of trying to close al-Halabi’s Article 32 hearing (the military equivalent of a probable cause hearing) his military defense lawyers sharply protested. Within 24 hours, the Air Force Court of Criminal Appeals had vacated the secrecy order, forcing the Air Force to acknowledge the arrest to the national media.

Until the military tribunals actually get underway, the question of media access will remain largely hypothetical. But as the U.S. prepares to hold its first military tribunals in more than a half century, it remains an issue of great importance to the media and the public.

“One of the questions that will have to be addressed is whether the institution of military commissions meets contemporary (judicial) standards, both domestically and internationally,” Fidell says. “Resolving the tension between openness and practical concerns of national security will have a powerful impact on the answer to that question.”