Judge delays ruling on press access to Guantanamo trials

A military judge avoided ruling on whether members of the news media and the public will have access to the testimony about the prison treatment of Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing in 2000 which killed 17 Americans. Instead, at Wednesday's pretrial hearing in Guantánamo Bay, Cuba, the judge ordered the prison camp to unshackle al-Nashiri when he met with his lawyers, making the accused terrorist's testimony unnecessary.

Al-Nashiri's lawyers filed a motion to allow al-Nashiri to meet with them unrestrained on March 9. The defense planned to put the accused terror suspect on the stand to testify about his treatment at the military base, alleging that al-Nashiri was retraumatized by being shackled which affects his ability to communicate with his lawyers. Prosecutors asked that the courtroom be closed for al-Nashiri’s testimony, noting that he could reveal classified information.

David A. Schulz — a media lawyer representing 10 news organizations, including The New York Times, NPR, Fox News, The Washington Post and Reuters — argued that the courtroom should be open to al-Nashiri’s testimony, since some information about the CIA’s treatment of al-Nashiri is already public record. Much of the information about al-Nashiri’s treatment in prison was released in redacted form in 2009.

Schulz said in an interview that though Judge Col. James L. Pohl did not provide a ruling regarding public access to military court, he was able to establish the public’s right of access to proceedings.

“The basic issue was to establish the principle that the military proceedings are public and the public have a right of access to the proceedings,” Schulz said.

The military justice system has its own laws, procedures and rules, separate from the civilian court system. However, the public's First Amendment right of access to court proceedings exists equally in both civilian and military justice proceedings, according to the Digital Journalist's Legal Guide by The Reporters Committee for Freedom of the Press.

“The venue that the government decides to prosecute a trial does not determine the scope of the rights of the public,” said Schulz, who is the first media lawyer to argue for right of access for the public at a military tribunal.

At Wednesday's hearing, Schulz recommended the court use less restrictive methods, such as the existing delay to the feed in public and media viewing rooms, to edit any classified information, The New York Times reported.

The court already uses a 40-second delay to prevent classified information revealed in court that could harm national security. There are public and media viewing rooms at military bases in Maryland and Virginia, and persons attending trials in Guantanamo sit in viewing rooms outside of the court.

Schulz said in an interview he expects the issue of right of access will come up again, should another detainee want to testify.

“The CIA maintains the information they [defendants] know relating to how they were treated is considered to be classified information,” he said. “That runs square into the public right of access. You can’t have a public trial and take the testimony of the defendant in secret.”

The agency has publicly acknowledged waterboarding al-Nashiri and two others, as well as threatening al-Nashiri with a handgun and power drill as part of his interrogation.

Al-Nashiri was captured in 2002, and was transferred to Guantánamo in 2006 after being held in CIA “black site” prisons for four years. He is also accused in an attempted attack against the USS The Sullivans in 2000.

Al-Nashiri’s trial, which is scheduled to start in November, is the first fully contested trial and the first death penalty case since the Obama administration overhauled the Guantánamo tribunals in 2009.

Related Reporters Committee resources:

· Dig.J.Leg.Gd.: Military justice access

· News: Pentagon releases new Guantanamo court regulation

· NM&L: Reform comes slowly to Guantanamo Bay

· News: Pentagon launches new Guantanamo commission website