OPEN COURTS — "The first full military commission hearings here since Barack Obama
became president and pledged to deliver transparency were no more open
than the court process had been under President George W. Bush," reports Carol Rosenberg for the Miami Herald.
The hearings on Canadian Omar Khadr's claim of
abuse opened with a new rule book and closed with the Pentagon banishing
four veteran reporters. One of the witnesses was subpoened in secret,
six testified under pseudonyms and security officers closed the court to
screen a video that's available on YouTube.
"That's what's so
heartbreaking. Obama actually promised transparency,'' said Human Rights
Watch observer Stacy Sullivan, a veteran war court observer who passed a
note to the judge asking for release of updated case pleadings.
"I was down there for four days, but I never had access to any of
the motions being argued. We only had access to motions that were filed
in November and December 2008, when the rules on coercion were
Most of the motions were posted on a Pentagon
website days into the hearing — as was the 281-page rule book, or
Manual for Military Commissions, by which lawyers framed their cases and
provided guidance to the judge on evidence. Secretary of Defense
Robert Gates signed it on the eve of the hearing, but it didn't reach
lawyers or the media on the remote Navy base until gavel time, forcing a
"There's a comic opera quality to it,'' said the American
Civil Liberty Union's Denny LeBoeuf, a persistent war court critic.
the rules at 7:30 p.m. the night before? That's just not how lawyer's
act, that's just not how judges act.''
War court staff defend the
process, which permits five independent observers — from Amnesty
International to the Institute of Military Justice and airlifts up to 60
reporters along with the court security officer who inspects an
artist's sketches together on the same flight.
Michael Chapman wrote reporters who petitioned for access to an air
conditioned press conference room that the Pentagon provides an
"unprecedented level of transparency'' that "demonstrates our commitment
to human rights and justice.
''To be sure, the eight-day Khadr
hearing produced revelations for a military judge deciding which of the
Canadian's confessions at age 15 and 16 may be used at his summertime
trial. An Army interrogator denied threatening the boy with rape
but admitted to spinning a horror tale of an Afghan kid who was raped
and killed in a U.S. prison to get Khadr to spill al Qaeda's secrets. A
Navy interrogator said she plied him with M&Ms, Fig Newtons and
puzzle books to get him to repeat his confession two months later and
8,000 miles away.A medic said he saw the teen, still recovering
from gunshot wounds in his chest and shrapnel in his eyes, shackled
inside a cage as punishment, sobbing beneath the hood over his head.
era reforms not only forbid tortured confessions but also those derived
through “cruel, inhuman and degrading treatment." Now the
standard is voluntariness, and a captive's age and education can be a
consideration. The judge, Army Col. Patrick Parrish, recessed the
hearings until July to let a Pentagon-hired forensic psychiatrist
examine the Canadian.
Khadr's court-approved mental health experts argue
that the 23-year-old developed post traumatic stress disorder after his
capture in a U.S. military raid and airstrike. He was 15, and
shot twice through the back and lost an eye to shrapnel in a July 2002
firefight in Afghanistan that claimed the lives of two Afghan
interrogators and U.S. Special Forces Sgt. 1st Class Christopher Speer. Speer,
28, of New Mexico, died days later at a U.S. hospital in Germany of
shrapnel injuries, according to the prosecution, from a grenade that
In prosecuting the case, the Pentagon has engaged in a
balancing act, protecting the names of some witnesses who might be
mobilized overseas again or whose families might fear for their safety
if their identities are revealed, said the chief war crimes prosecutor,
Navy Capt. John F. Murphy. Murphy also argued that lawyers
sometimes need to trade anonymity for a witness' willingness to testify
at trial. Once the hearing had ended, Murphy also disclosed that
one of the 16 witnesses was ordered to testify in a secret subpoena that
shielded the person's identity — pseudonym or otherwise.
defending media access to the trial, Chapman noted "U.S. government
transportation to Cuba, country clearances, lodging'' as well as a media
center equipped with closed-circuit feed of the proceedings for those
who don't want to watch in court. In fact, they do provide the
tents where media are housed for free, and $400 round-trip seats on
military charter flights to Guantánamo, their sole means of transport
allowed under the entry documents called country clearances, as well as
$100 a week Internet lines.
In responding to a media complaint
last month that defense lawyers were barred from the Pentagon's
air-conditioned press conference room when prosecutors were not there to
provide a counterpoint press conference, the war court's legal advisor,
Michael Chapman, wrote one reporter: "We believe that this
unprecedented level of transparency demonstrates our commitment to human
rights and justice.''
TV reporters complained that their lenses
fogged up in the humid, open-air abandoned hangar where interviews were
authorized. Instead, military escorts were using the air conditioned
press conference room to screen news video footage and decide which must
be deleted for "operational security reasons.'' The military
requires news groups to destroy imagery that might tip off al Qaeda or
other enemies to how they safeguard operations. Most faces are out, as
are portions of the shoreline and monitoring posts. Sometimes
that means the courthouse can't be photographed. Other times censors
have destroyed photos with visible barbed wire or florescent orange
The military transported 35 journalists for the
two-week hearing, many of them from broadcast outlets, which are not
allowed to record in the courtroom. The media entourage dwindled to 14,
four of whom were banned from returning because they allegedly violated
Pentagon ground rules protecting the identities of some people who
testify in the proceeding.
Also secret at the Khadr hearing was a
screening of a grainy 2003 video in which an at-times weeping Khadr was
being questioned by a Canadian intelligence agent at Guantánamo. It
was still classified at Guantánamo — as are all tapes of interrogation
— even though a Canadian court released it in June 2008. So reporters
excused from the proceedings used their Internet lines to watch it on
Reporters weren't the only ones excluded. Canadian
attorney Nate Whitling didn't have the court-approved clearances to
watch it either — even though he provided the version viewed in secret
session by burning it onto a DVD at the trailer park where lawyers live
below the hilltop tribunal building."
As I understand it, there's
been amendments to the act under Obama that are more restrictive in
terms of the types of confessions that could be admitted as evidence,''
Whitling said in an interview later from Canada. "But in terms of
transparency, I see no difference between Obama and Bush at this