The chief war court judge has agreed to let media and civil liberties lawyers
argue for openness at the start of a pre-trial hearing at Guantanamo in the
death-penalty case of five alleged conspirators in the Sept. 11 attacks.
A consortium of 14 media groups, including The Miami Herald, and the
American Civil Liberties Union separately filed motions protesting protective
orders that shield the public from access to secret information in the case.
Judge James Pohl, an Army colonel, agreed to let lawyers argue their case
on Aug. 22, the opening day of a week of hearings. He signed the one-page
order Wednesday, according to a copy obtained by The Miami Herald. It was
still under seal at the war court on Thursday morning.
Defense attorneys for the alleged architect of the 9/11 attacks, Khalid
Sheik Mohammed, and his four co-defendants did not oppose oral argument. Nor
did the office of the Pentagon's chief war crimes prosecutor, Army Brig. Gen.
Mark Martins, who has been trumpeting the war court's transparency.
"Oral argument from the media and ACLU will emphasize the critical public
interest in open proceedings at Guantanamo," said James Connell, attorney for
Mohammed's nephew, Ammar al Baluchi, an alleged logistical co-conspirator, who
is also known as Ali Abdul Aziz Ali.
At issue is the war court system that employs a 40-second delay of the
proceedings, time enough to let an intelligence official hit a white noise
button if any of the men describe what CIA agents did to them after their
capture in Pakistan in 2002 and 2003 and before their arrival at Guantanamo in
September 2006.
In its motion, filed May 2, the ACLU called the practice censorship, and
said it was premised on "a chillingly Orwellian claim" that the accused "must
be gagged lest he reveal his knowledge of what the government did to him."
The newspaper groups represented in their separate brief call themselves
"the press objectors." Besides The Herald and its owners, The McClatchy
Company, they include ABC, Inc., the Associated Press, Bloomberg News, CBS
Broadcasting, Inc., Fox News Network, National Public Radio, The New York
Times, The New Yorker, Reuters, Tribune Company, Wall Street Journal, and
Washington Post.
The media motion calls the government's protective order "overly broad"
in its bid to shield CIA activities from public scrutiny.
"The First Amendment allows commission proceedings to be closed only upon
a specific finding of a "substantial probability" of harm to national security
or some equally compelling governmental interest," First Amendment lawyer
David Schulz writes in the press objectors motion filed on May 16.
The start of the trial itself is at least a year away.
