A coalition of major news organizations is challenging as unconstitutional Pentagon rules that were used in May to ban four reporters from covering military commissions at Guantanamo Bay, Cuba.
In a letter to Pentagon General Counsel Jeh Johnson, the organizations argue that the Pentagon’s interpretation of the rules is “plainly illegal” because it bars publication of information considered “protected” even if the information is already widely known and publicly available.
Such a restriction is “a ‘classic example’ of a prior restraint” that “the Supreme Court repeatedly has refused to allow . . . even in the name of national security,” the organizations said.
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The organizations include McClatchy Newspapers, which owns The Miami Herald and 30 other newspapers, The Associated Press, Dow Jones & Co., The New York Times, Reuters and The Washington Post.
The Pentagon has agreed to lift the ban on the four reporters on Aug. 5. That, however, isn’t enough, the organizations said, noting that the hearing the reporters were covering resumes on July 12.
The Pentagon, the organizations said, must lift the ban immediately so that the reporters can return and revise the 13 pages of rules that reporters are required to sign before covering military hearings for detainees held at Guantanamo.
“There must be a sufficiently strong, legitimate government interest before a contractual condition may legally restrict a citizen’s First Amendment rights,” attorney David Schulz wrote on the news organizations’ behalf. “As demonstrated above, no such legitimate interest justifies the overly broad censorship imposed by the ground rules.”
A spokesman for the Pentagon said Johnson’s office had received the letter, but declined further comment.
The case stems from a hearing for Omar Khadr, a Canadian who’s been held at the offshore detention camp since he was seized in Afghanistan at the age of 15 after allegedly throwing a grenade that killed Army Sgt. First Class Christopher Speer. Khadr claims that he was abused during his interrogation and is seeking to exclude the evidence gleaned from the questioning.
Before a court session, Miami Herald reporter Carol Rosenberg and three Canadian journalists published the name of a witness that the government had said should be identified as “Interrogator No. 1.” The name of the witness, former Army Sgt. Joshua Claus, had been known for years after he voluntarily gave newspaper interviews in Canada denying that he’d abused Khadr. Claus also had been convicted by a U.S. court martial of abusing detainees in Afghanistan and sentenced to five months in prison.
The letter to the Pentagon notes that Khadr’s Wikipedia biography identifies Claus as Khadr’s main interrogator.
“We don’t dispute their authority to restrict information to protect national security and witnesses, but they can’t exercise that authority to prohibit reporters who happen to be in Guantanamo from reporting information that is known to the rest of the world,” Schulz said in an interview.
The complaint also faulted the Pentagon for leaving the decision on whether a reporter has violated the rules to Pentagon public affairs officers, saying by law only a military judge has the authority to make such a ruling. The organizations said that Congress required that military commissions be open to news reporters and international representatives.
“Where Congress has mandated proceedings open to the press, and permitted a limitation of access by a military judge only in those circumstances where necessary to protect national security or ensure physical safety,” the Pentagon “cannot unilaterally impose restrictions upon access by reporters.”
David Tomlin, the associate general counsel of The Associated Press, said the news agency also has concerns about rules that permit public affairs officers on the island to delete photographs and video they consider “security violations.”
“This new issue . . . resonates very much with us,” Tomlin said. “We understand that in a high security situation, run by a large organization with a lot of demands on it, the review isn’t going to be completely uniform, but we need somebody at some higher level of authority and familiarity with the real priorities of protection to review and make sure that some overprotective lower level officer isn’t just taking the easy way out and deleting images when in doubt.”
David McCraw, an attorney for the New York Times, said most news organizations respect legitimate national security needs, but he noted that Congress has declared that the military commissions at Guantanamo “should be as public and transparent as possible.”
“We’re optimistic that some Department of Defense attorneys will understand the issues and maybe we can find a way to get to a set of rules that work for both sides,” McCraw said. “If the government is going to take the position of preventing us from publishing information we found independently, those are rules we can’t live with and I don’t think it benefits anyone.”