Gitmo Hearings Behind Closed Doors

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The inaugural Periodic Review Board ("PRB") hearing of Guantanamo Bay detainee Mahmud al Mujahid, 33, scheduled for today excludes the press and will be conducted beyond closed doors, the Jurist.org Web site reports.

President Barack Obama established the PRB via an executive order in 2011 whose aim is to review the status of certain detainees at Guantanamo Bay to gauge whether continued incarceration is warranted in the interest of national security. The Dept. of Defense has indicated 71 detainees are in line for a PRB hearing to determine whether transfer or release may be allowed.

The decision to bar the press and public from the proceedings is a tone-deaf one for an administration that could only benefit from the transparency to which it often pays lip service.  The framers of the U.S. Constitution recognized in the Sixth Amendment the importance of public trials. At the very least, it should be incumbent on government attorneys to meet the burden of proving that the Constitution does not apply to the PRB hearings.

Gitmo Interrogation Pix & Videos Exempt From FOIA Request, NY Fed Judge Rules

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In Center for Constitutional Rights v. Department of Defense et al. (Case No. 1:12-cv-00135), United States District Court for the Southern District of New York Judge Naomi Reice Buchwald last week ruled that photographs and videos concerning interrogations at Guantanamo Bay of alleged "20th hijacker" terrorist Mohammed al-Qahtani  were exempt from having to be produced under a Freedom of Information Act ("FOIA") request by the Center for Constitutional Rights ("CCR") advocacy group.

Judge Buchwald supported the CIA, which had neither confirmed nor denied the existence of photos and videos of the questioning of al-Qahtani over a three-year period from 2002 to 2005 that CCR sought in its FOIA request. Under the Act's [5 U.S.C. sec. 552] Exemption 1, the so-called national security exemption, Judge Buchwald found the release of such material could incite an anti-American reaction and be used as a recruiting tool by America's enemies and to foment violence.

The court concluded the government had satisfied its burden of proof that it was "logical or plausible" that such an adverse occurrence could be triggered by the release of the materials requested by CCR.

Tip of the hat to the Reporter's Committee for Freedom of the Press (www.rcfp.org) for staying on top of this case.

New Fall TV Season Won't Include Airing Guantanamo Bay Tribunal

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Citing military commission rules that prohibit radio or tv broadcasting of proceedings, military judge Col. James Pohl said he lacks authority to grant permission to news organizations to air a war crime tribunal at Guantanamo Bay naval base, the Associated Press reported this week.

In his ruling, Col. Pohl said attendance at the proceedings by the press and members of the public satisfy the constitutional requirements of a public trial. According to the AP, attorneys for Saudi defendant Abd al-Rahim al-Nashiri, accused of plotting the 2000 attack on the U.S.S. Cole in Yemen in which 17 American sailors were killed, sought live feeds of his trial to highlight what they allege are the legal drawbacks of military commissions.

Pohl's ruling applies only to the Cole prosecution.

DOJ: Gitmo, Know Less...

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The U.S. Court of Appeals for the Federal Circuit is weighing a request from the Department of Justice to redact the transcript of an oral argument involving a Guantanamo Bay hearing that occurred in open court.

According to the Blog of LegalTimes (http://legaltimes.typepad.com), oral arguments in Kiyemba v. Obama occurred April 22, though only the first half of the arguments was open to the public.  Initially, the appellate court granted the DOJ request to seal the hearing transcript in its entirety, but the government has since asked the court to seal only portions of the transcript of the public arguments.

The appellate court has yet to address its rationale for sealing the transcript.

4 Journos Scratched Off Gitmo Guest List

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The Pentagon has revoked the press credentials of four journalists covering the Gitmo military commission hearings after their articles named a witness whose identity had been protected by the presiding judge.

The judge presiding over the pretrial proceedings of  23-year-old Canadian detainee Omar Khadr, accused of killing a U.S. soldier in Afghanistan, ordered that a witness be referred to only as "Interrogator No. 1," although the individual in question gave an on-the-record interview to one of the barred reporters in 2008 and was identified by name in 2005 during court-martial proceedings against him.  Likewise, the presiding judge closed the courtroom during the airing of a video interrogation of Khadr by Canadian authorities, even though the video was widely disseminated on YouTube after its public release was ordered by the Canadian Supreme Court.

The four journalists precluded from further reporting on Guantanamo Bay military commission hearings include The Toronto Star's Michelle Shepard, The Globe & Mail reporter Paul Koring, The Miami Herald's Carol Rosenberg and Steven Edwards of the CanWest news service.  The Pentagon order bars only the named reporters, but permits their news organizations to send other journalists to cover the detention proceedings. Reporters are allowed to cover court proceedings at Gitmo, but are not permitted to interview participants at any time. The four journalists are expected to appeal their ban.

A judge must be empowered to uphold courtroom decorum and able to suppress sensitive information vital to national security, notwithstanding the First Amendment. However, imposing a gag order on information that already is widely circulated in the public domain is more surreal, than sensible.  The Pentagon would do well to review the Supreme Court decision in New York Times v. U.S., 403 U.S. 713 (1971) (the "Pentagon Papers" case), to brush-up on the high standard  set for prior restraint, and U.S. v. Progressive, 407 F. Supp. 990 (1979), in which a gag order against a magazine publishing an article about making an H-Bomb was rendered moot by other publications' publishing different "recipes" for making the bomb.

Guantanamo Bay and The Bill of Rights get along like Charlie Sheen and the Mrs., so it was only a matter of time before the First Amendment felt the sting of Gitmo.