Banned Gitmo Reporters Appeal

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McClatchy provides details of the appeal the outlets for four reporters banned from Gitmo for publishing the name of Joshua Claus have made to the Pentagon.

Arguing that a Pentagon order banning four journalists from covering military commissions at Guantánamo Bay was illegal and unconstitutional, The Miami Herald and two Canadian news outlets appealed on Wednesday.

[snip]

In a letter to Bryan Whitman, deputy assistant secretary of defense for media operations, [David A.] Schulz [who represents the Canadian papers involved] said the law that created the military commissions leaves such decisions up to a judge.

Further, the reporters did not obtain the name of the witness at the hearing, and it serves no military purpose to ban someone from publishing information that’s already public, Schulz argued.

“Our position remains unchanged: We did not violate any of the court rules for being at Guantánamo,” said Miami Herald Managing Editor Aminda Marques Gonzalez. “I feel confident that once they review the facts that they are going to come to the same conclusion and reverse the order.”

Though I do hope the Canadians are pressuring the Administration about expelling the most knowledgeable Canadian journalists on the Omar Khadr case.

What’s It Take for Holder to Be Allowed to Do a Sunday Show? Kill Miranda!

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The White House press made a bit of a todo over the fact that Eric Holder was finally allowed to go on a Sunday show today (he’s appearing on both ABC and NBC). Given all the somewhat bizarre claims from people like Rahm that Holder botches his public statements, it sort of makes you wonder what he’d have to agree to before he’d be allowed out without a minder.

The answer?

Kill Miranda!

Even in his appearance on ABC, Holder makes a case that Miranda has not impeded any investigation to date:

The system has proven to be effective. …. people have been given Miranda warnings, people have continued to talk, as was the case [with Faisal Shahzad], as was the case with Abdulmutallab in Detroit.

And Holder has made even more passionate defenses of Miranda in the past, notably in Congressional testimony (see some quotes from such testimony here). Nevertheless, Holder effectively uses his Sunday show debut to say, “If it ain’t broke, but fearmongers like Joe Lieberman and Lindsey Graham want to attack it nevertheless, then hell! Let’s break it!”

But gosh. It sure is nice to see the last defender of rule of law allowed to appear on the Sunday shows!

Joshua Claus: The Rape Threat and the Dead Detainees

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Jim White catalogued some of the hesitancy among the traditional media (and, frankly, the blogosphere) to highlight the precise piece of news that DOD banned four reporters from Gitmo over: the name of the witness dubbed Interrogator #1 who testified at the Omar Khadr hearing the other day, Joshua Claus. Kudos to HuffPo and CNN for refusing to accept DOD’s censorship by printing Claus’ name.

Joshua Claus, Joshua Claus, Joshua Claus.

Froomkin aptly describes DOD’s ridiculous demand that reporters not report on a name that is in the public domain as a demand for amnesia:

Jack Newfield, the legendary investigative reporter, once wrote that if government officials had their way, journalists would be “stenographers with amnesia.”

The “amnesia” part, at least, was generally considered a bit of an exaggeration.

But now, the Pentagon has banned four reporters from covering the military commissions at Guantanamo Bay, Cuba, because they refused to forget something that had already been reported to the world.

But DOD claims it is doing something different: making sure that Joshua Claus, whose role in the Dilawar killing has been documented, is not connected to this week’s hearing.

Pentagon officials said it didn’t matter that Claus’ name was already widely known.

“If his name was out there, it was not related to this hearing. Identifying him with Interrogator No. 1 was the problem,” Lapan said.

Which really ought to encourage those of us who would like to confound DOD”s attempt at censorship to focus on what new information can now be connected to Joshua Claus: specifically, that the same guy involved in the killing of the Afghan taxi driver Dilawar also implicitly threatened Omar Khadr with rape.

Both Steven Edwards and Michelle Shepherd (who are both among the journalists banned on Thursday) previously reported that Claus conducted most of Khadr’s interrogations at Bagram. Both raised the question whether Khadr was subjected to the same kind of abuse Claus used on other detainees, most of all Dilawar, who died after abuse in US custody. But in his on-the-record interview with Shepherd, Claus insisted that Khadr wasn’t subject to any of that same kind of abuse.

In the first interview he has given since leaving the army, Joshua Claus told the Toronto Star that he feels he has been unfairly portrayed concerning his work as an interrogator at the U.S. base in Bagram, Afghanistan.

“They’re trying to imply I’m beating or torturing everybody I ever talked to,” Claus said by telephone yesterday. “I really don’t care what people think of me. I know what I did and I know what I didn’t do.”

[snip]

Claus was 21 at the time, and the assignment was his first deployment. But he said yesterday it was unfair to compare his interrogation of Khadr to that of Dilawar or the other detainees.

“Omar was pretty much my first big case,” Claus said, noting that they’d talk for six to eight hours a day. “With Omar I spent a lot of time trying to understand who he was and what I could say to him or do for him, whether it be to bring him extra food or get a letter out to his family … I needed to talk to him and get him to trust me.”

He said he was trying to find a “symbiotic relationship” with Khadr, who was 15 at the time of his capture.

Claus wants us (or at least wanted us) to believe a “symbiotic relationship” existed between him and Khadr. And that’s, frankly, how DOD would like it to remain, with Claus’ denials that Khadr was subject to any of the same abusive treatment that Claus used on others.

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DOD Kicks Out Gitmo Reporters for Reporting Publicly Available Information

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Spencer just tweeted:

Pentagon BANS Michelle Shephard, Paul Koring, Steven Edwards & @carolrosenberg from #GTMO for reporting Interrogator #1’s name #solidarity

And Al Arabiya’s Muna Shikaki tweeted:

Office of Sec of Defense issues statement barring reporters @carolrosenberg, and 3 canadian reporters from covering future trials in gtmo.

What appears to have happened is that DOD has banned Miami Herald’s Carol Rosenberg, Toronto Star’s Michelle Shepherd, Globe and Mail’s Paul Koring, and Canwest’s Steven Edwards from future trials because they used the name of Joshua Klaus–Omar Khadr’s first interrogator–in their reports this week.

Yet, as skdadl explained today, Klaus’ name is widely known in Canada.

Interrogator #1’s name is well known in Canada, and in fact it’s in Wikipedia.

[snip]

Joshua Claus is the guy. Omar apparently calls him “the skinny blond.” Interesting, given that one of the other interrogators we’ve heard from, a great hulking guy who has “Monster” tattooed on his chest (or somewhere — need to look that up), turns out to be a sensitive fellow (now has PTSD) whose testimony should work to help Omar. (I do have sources for all this stuff, but I’m a bit cross-eyed at the moment.)

Basically, the government is banning journalists for using a name they’ve used in reports in the past, a name that is publicly known.

Is this an attempt to prevent the public from making the connection between two Afghans who died in 2002–Dilawar and Habibullah–and Khadr’s treatment? And/or just an attempt to intimidate the press so the people who know the most about the Gitmo show trials (and particularly Khadr) don’t bring that knowledge to bear on their reporting?

Update: Spencer has more here. He also included the text of the letter sent to the reporters:

Cc: Whitman, Bryan Mr OSD PA
Subject: Ground rule violations

Lady and gentlemen:  I am writing to inform you that reporters from your news organizations violated established and agreed-upon ground rules governing reporting on Military Commissions proceedings at Guantanamo Bay, Cuba.

The Media Policy and Ground Rules for Naval Station Guantanamo Bay, Cuba were provided to each member of the media at Andrews Air Force Base before departure to Guantanamo Bay, Cuba on April 26, 2010.  Paragraph 2a delineates the following restriction:  “To not publish, release, discuss or share information identified by commission’s personnel as being Protected Information or otherwise protected from disclosure by these ground rules.” Paragraph 2.g. of the ground rules states “The identities of all commission personnel, to include the Presiding Officer, commission members, prosecutors, defense counsels, and witnesses, will not be reported or otherwise disclosed in any way without prior release approval of OSD(PA).”

Specifically, your reporters published the name of a witness whose identity was protected in court.  The attached Word document is a collection of four news articles written AFTER the Military Judge clearly stated on May 5 that media covering Military Commissions are expected to comply with the protection orders.  All four (4) articles mention “Interrogator #1″ by his real name.

In accordance with paragraph 2 of the same policy, failure to comply with these ground rules or the Presiding Officer’s instructions could result in permanent expulsion from the courtroom area and may result in the removal of the parent news organization from further participation and could subject the (NMR) to criminal prosecution.

As a result of these violations, these individual reporters are barred from returning to cover future Military Commissions proceedings.  Your news organizations may continue to cover the proceedings with other reporters. However, future violations of the ground rules and/or military judge’s protection orders will result in your news organization losing the ability to send reporters to Guantanamo Bay.

If you desire more information, please contact me via e-mail or phone.  If you wish to appeal this decision, you may contact the Deputy Assistant Secretary of Defense for Media Operations, Mr. Bryan Whitman, at 703-697-6647 or [email protected].

Regards,

Col. Dave Lapan, USMC
Director, Defense Press Operations

So DOD is basically saying that once a reporter agrees to go to Gitmo, they lose the ability to report on stuff they have already reported on.

Khadr: “You’re Trying to Humiliate Me”

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If you’ve been following Spencer and Carol Rosenberg, you know that the news from Omar Khadr’s hearing has been dominated by Khadr’s two refusals to come to the hearing room, yesterday because he didn’t want to wear the blackout goggles they use while transporting detainees at Gitmo, today because he didn’t want to undergo a waistband search before being transported to the hearing room.

I certainly can’t say whether Khadr really doesn’t want to undergo these procedures–which the government says are routine–or whether he wants to call the world press’ attention to these procedures (anyway, how do you separate the two?). But in any case, he has succeeded, to some extent, in doing the latter (Spencer tweeted that Gitmo authorities actually explained “which digit gets inserted” in a waistband search).

Both times, the authorities dutifully reported Khadr’s comments about humiliation. Yesterday, he said, “You’re trying to humiliate me,” and today he said, “I want to come to court but I want to come respectfully.”

Here’s how the Toronto Globe and Mail (which in some ways would be the key audience for such a story) reported the repeated refusals:

For the second day in a row, Omar Khadr refused to appear Friday for pre-trial hearing on murder and terrorism charges, claiming he was being subjected to unnecessary and humiliating searches by military guards.

[snip]

“I want to come to court but I want to come respectfully,” Mr. Khadr said, according to U.S. Marine Capt Laura Bruzzese, who testified at the opening of today’s session.

Military Judge Col Patrick Parrish said the hearing would proceed without Mr. Khadr.

“He objects to having his waistband searched” but that is a reasonable security measure, the judge said, adding that Mr. Khadr’s objections – unlike those of a day earlier — were unrelated to his eye problems.

[snip]

But Mr. Khadr’s condition and his care eclipsed Thursday’s hearing. The military judge, Col. Parrish, refused defence requests that a doctor on the defence team be allowed to testify as to the seriousness of Mr. Khadr’s eye problems. Mr. Khadr failed to appear for the morning session after he refused to wear the sensory-depriving, blacked-out, ski goggles and earmuffs detainees are required to wear for transport from the prison camps to the courtroom.

Col. Parrish then cancelled it and warned Mr. Khadr’s lawyers that unless they persuaded him to attend, he would order him trussed up and brought to the court, at least long enough for him to be told of his right to absent himself. That right was apparently omitted from Mr. Khadr’s arraignment.

Col. Parrish rejected defence requests to examine whether Mr. Khadr should be forced to wear the goggles, even while in the back of the armoured vehicle used to transfer prisoners from the camps to the court. The judge said he “wasn’t going to second guess the decisions made by security” personnel.

I’m curious what you all make of this. To Americans, certainly, such procedures aren’t going to seem out of order–we see US-based prisoners subjected to bureaucratized dehumanization on teevee all the time. That’s not as true of the rest of the world. Yet, it seems to detract from the issues specific to Khadr that piss off the rest of the world even more, that the US is trying someone who for actions allegedly committed as a teenager.

The Right to Counsel at Gitmo

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Best as I understand it, the shiny new military commission manual says the following about right to counsel:

  • Defendants will generally get military lawyers
  • Defendants can use civilian attorneys, but the government isn’t going to pay those attorneys
  • If a defendant is charged with a capital crime, they can have someone who specializes in death penalty cases in addition to their other lawyer and the government might even spring for a civilian lawyer
  • The government can prevent specific military lawyers from defending defendants by simply not detailing those lawyers to the Office of Military Commission as defense counsel (in the past, the government has basically forced detainees to change defense counsel by reassigning the lawyers; though see the update that seems to limit this to good cause reasons)
  • It appears that the manual does not prohibit a detainee from defending himself in a capital case (which is what KSM wanted to do)

All of which seems to make it more likely KSM will end up in a military commission, so he can plead guilty and become a martyr. Though they have required that defendants who represent themselves maintain a particular decorum, suggesting that if KSM uses self-representation as a soapbox, they will force him to accept a lawyer.

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Breaking! Torture Is Illegal! Except when Consistent with the Interests of Justice!

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Thanks to BoxTurtle for linking to the manual for military commissions rushed out last night in time for the Omar Khadr hearing.

There are a number of interesting details in it, but since Khadr’s hearing today pertains to torture–whether statements he made after allegedly being tortured will be admissible–I thought I’d start with what the manual says about torture. And, ironically, there’s a big section on torture … in the section describing potential charges under military commissions. Here’s how the manual describes the crime of torture:

(11) TORTURE.
a. Text. “Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

The details for the most part track the analysis done by OLC on torture, including the language on intent:

(3) The accused intended to inflict such severe physical or mental pain or suffering;

But there’s also this, which appears to be a potential loophole:

(6) The conduct took place in the context of and was associated with hostilities.

Now, given that torture is laid out all nice and tidy like that in the military commission manual, you’d think that the discussion of whether evidence collected through the use of torture is admissible might also include some comment about what happens to the people who did the torture if evidence is deemed inadmissible because it was collected using torture. But it doesn’t.

Here’s what the manual says about statements collected using torture.

(1) Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.

Which would seem to say no evidence collected using torture will be admissible in these military commissions, unless it’s to try to someone for torture.

Except there’s this loophole:

(5) Derivative Evidence.

(A) Evidence Derived from Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. Evidence derived from a statement that would be excluded under section (a)(1) of this rule may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection, unless the military judge determines by a preponderance of the evidence that—

(i) the evidence would have been obtained even if the statement had not been made; or

(ii) use of such evidence would otherwise be consistent with the interests of justice. [my emphasis]

That is, to exclude evidence collected using torture, the defendant has to make a timely motion to suppress that evidence. Fair enough.

But the military commission can still use the evidence if it decides the evidence would have been obtained anyway (this seems to be a giant wall of protection for evidence collected using a clean team, meaning that evidence that matches tortured confessions but was collected using other means can still be used even if the evidence also came out in a tortured confession).

Or, more troubling, if the military judge decides that using evidence collected using torture “would otherwise be consistent with the interests of justice.”

Here’s what the manual has to say about “interests of justice:”

The intention of Mil. Comm. R. Evid. 304(a)(5) is that the “interests of justice” standard generally will restrict the admission of evidence derived from statements obtained by torture or cruel, inhuman, or degrading treatment (other than where the evidence would have been obtained even if the statement had not been made). The admission of evidence derived from a statement that was made incident to lawful conduct during military or intelligence operations and that would not be excluded under section (a)(1) of this rule generally should be regarded as consistent with the interests of justice for purposes of section (a)(5)(B) of this rule.

So torture is illegal. Except when it consists of “lawful conduct during military or intelligence operations,” in which case torture can be regarded as “consistent with the interests of justice.”

Here’s what the manual says about statements made by others under torture (I originally didn’t find this section–this is an update):

(3) Statements from persons other than the accused allegedly produced by coercion. When the degree of coercion inherent in the production of a statement from a person other than the accused offered by either party is disputed, such statement may only be admitted if the military judge finds that—

(A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

(B) the interests of justice would best be served by admission of the statement into evidence; and

(C) the statement was not obtained through the use of torture or cruel, inhuman, or degrading treatment as defined in section 1003(d) of the Detainee Treatment Act, Pub. L. 109-148 (2005) (codified at 42 U.S.C. 2000dd(d)).

Since this section requires that the coerced statement both serve the interest of justice and that it not be obtained through use of torture, it seems that self-incrimination through torture is allowed, when consistent with the interests of justice, but not the incrimination of others.

Pleading Terror Trials

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Will the GWOT go on trial today? Or will the Administration avoid having its policies on terror detainees go on trial, along with two accused terrorists?

In Gitmo, Omar Khadr’s military commission is due to start shortly, in spite of the fact that lawyers in the case only got the manual laying out rules for military commissions last night. Apparently, military prosecutors made a last ditch attempt to avoid trying a Canadian captured as a teenager using dubious evidence; they offered Khadr a plea deal of five more years in prison in exchange for pleading guilty to war crime charges. Khadr refused that deal, though negotiations appear to be ongoing.

Military prosecutors offered a sentence of five years in a U.S. prison if Canadian detainee Omar Khadr pleads guilty to war crime offences, the Toronto Star has learned.Sources close to the case who spoke to the Star on the condition of anonymity said the offer was turned down, clearing the way for pre-trial hearings Wednesday morning.

I’ll post updates as news breaks, but you can follow Spencer Ackerman and Carol Rosenberg via Twitter for up-to-the-minute updates.

Meanwhile, closer to home, Syed Hashmi accepted a last minute plea deal yesterday, pleading guilty to one charge of material support for terrorism in exchange for a 15 year sentence.

On the eve of his terrorism trial, an American student who studied in London admitted Tuesday that he helped a friend deliver some protective clothing to an al-Qaida military commander fighting Americans in Afghanistan.The plea by Syed Hashmi to a single count of conspiracy to provide material support to al-Qaida was entered in U.S. District Court in Manhattan, averting a trial that was supposed to begin Wednesday.

As part of a plea deal that will require prosecutors to drop three other terrorism charges at his June 7 sentencing, Hashmi agreed to serve 15 years in prison. He has already served four years, at least three of them in solitary confinement at a federal lockup in lower Manhattan.

Hashmi’s case had attracted a lot of support for two reasons: first, because Hashmi’s actions in support of al Qaeda consisted of allowing a friend to use his cell phone and store a bunch of rain gear at his apartment. And because Hashmi was subjected to Special Administrative Measures for almost three years leading up to this point. While the government claims the measures are necessary to prevent terrorists (usually convicted ones) of communicating with co-conspirators, they amount to long-term solitary confinement with little due process.

In any case, by arranging a plea deal with Hashmi, details of his confinement will remain largely unnoticed.

For all the stink about where the 9/11 Defendants will go on trial, it appears that the Obama Administration would rather plead away these more embarrassing cases rather than have his policies, as well as accused terrorists, go on trial.

The Protective Order on Khadr’s Interrogators and the John Adams Project

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In addition to the bombshell that Omar Khadr’s military commission will start Wednesday, less than a day after lawyers in the case will have received the thick manual laying out the rules for the newfangled military commissions, Gitmo released one more thing today: the protective order covering “intelligence identities” that applied to Khadr’s old-fangled military commission. (h/t Carol Rosenberg)

Given the witch hunt launched against the John Adams project (in which detainee lawyers employed investigators to figure out the identity of detainees’ torturers, in response to which the CIA has been demanding the lawyers be charged with violating the Intelligence Identities Protection Act), I’m particularly interested in this language (assuming, of course, that these protective orders are fairly standard).

2. Accordingly, IT IS HEREBY ORDERED:

a. Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused, may be disclosed to members of the Defense team, such as paralegals, investigators, and administrative staff, with an official need to know. However, such information shall not be disclosed to the accused or to anyone outside of the Defense team other than the Military Commission panel subject to the limitations below;

b. Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing. Any mention of the name or other identifying information of intelligence personnel must occur in closed session and any filing to the Military Commission panel that includes such information shall be filed under seal.

First, let’s read a: “Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused”–note they don’t explain why those intelligence personnel would have been disclosed to defense counsel. And they also describe both “names” and “identifying information”–which would presumably include photographs (the CIA is particularly pissed that pictures of interrogators have been passed among detainees at Gitmo).

It goes on: “However, such information shall not be disclosed to the accused.” I’m curious what you lawyers think about this? Is there a parallel in civilian trials? In any case, the protective order makes it clear that the government is trying to protect these identities, first of all, from disclosure to those who were abused by said intelligence personnel.

Then there’s part b: “Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing.” Call me picky, but this seems to be sloppy writing here. Since this passage does not refer explicitly back to part a, it would seem that the prohibition on disclosing “such information” would not be limited to information “disseminated” to lawyers for the accused. And in any case, part a includes language about information “obtained by” lawyers for the accused.

What is the significance of this for lawyers who, in an attempt to get information not disseminated (and therefore witnesses who may have exonerating information not produced) have gotten investigators to find out the identities of those who tortured their clients? Furthermore, note that the protective order doesn’t qualify the limit of those whose identities are protected here at all. What happens if a defense lawyer doesn’t know if someone is an intelligence professional but has a suspicion that the person might have been the guy who tortured his client, and in any case is probably a contractor? Does showing the client a picture count as disclosing identifying information, even if the only one who can confirm that the person in question is affiliated (however loosely) with US intelligence is your client?

In any case, this protective order only calls for sanctions, not the IIPA charges that CIA seems to be clamoring for. And this protective order appears to have been operative in 2007, not necessarily 2009 and 2010. I’m not a lawyer, but if the CIA is trying to equate this with security agreements in order to criminally charge defense attorneys, I’m skeptical it’ll work.

But it does give one snapshot of how Kafkaesque the Bush-era military commission process was (as distinct from how Kafkaesque the Obama-era one day rule cramming is).

Obama-Era Military Commissions: Cramming on the Rules

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Spencer’s down in Gitmo this week, supposedly watching the beginning of Omar Khadr’s hearing. Only, as he just reported, the manual laying out rules for the military commissions only got signed an hour ago by Secretary of Defense Bob Gates.

A source from the convening authority for the military commissions just informed the press corps that Secretary of Defense Robert Gates has finally signed and issued a Manual for the Military Commissions Act of 2009. It’s 7:30 p.m. as I write this. Approximately 13 and a half hours from now, Col. Pat Parrish, the military judge presiding over Omar Khadr’s pre-trial hearing, will gavel the first full-fledged military commission proceeding of the Obama administration into order. The source told us that as of right now, prosecution and defense counsels are meeting with Parrish to inform him that the Manual is out.

Oh, one more thing: As of right now, a copy of the Manual isn’t at Guantanamo Bay. No one involved in tomorrow’s hearing has read it. Apparently its a very big file — inches thick if printed out — and internet speeds here are pretty slow.

In other words, Obama’s new-and-improved military commissions are going to start by asking everyone involved to cram on the rules the night before the commissions actually kick off.