The pending prosecution of Khalid Shaikh Mohammed means that the United States may convict and execute the alleged architect of the 9-11 attacks. But it is unclear how much the public will know about the evidence against him – or what they will be able to read, hear, or watch about the whole proceedings for that matter – because the administration’s decision to move forward with a military commission, rather than pursue the case in civilian court, means that press access may be restricted.
News organizations are preparing to press the Pentagon for what they believe to be fair access to KSM’s tribunal – and are girding for a legal fight in case of resistance from the Pentagon.
The Reporters Committee for Freedom of the Press and a bevy of news organizations including representatives of The New York Times, The Washington Post, the Associated Press, Reuters, major networks, and others are arranging a conference call for late this week to discuss access to the tribunals. Coordinating legal representation is on the agenda.
“We are very concerned,” says the committee’s Executive Director, Lucy Dalglish. “We are going to be mobilizing to make sure the Department of Defense knows we are going to be on them about this.” Since KSM is such a high-profile case, news organizations plan to press their case with particular vigor.
Among other things, it is unclear who will be allowed to travel to Guantanamo Bay in Cuba, how many representatives of the press can watch the trial, what evidence they will be able to see, and what restrictions might be placed on reports from the military commissions.
There are a slew of legal precedents protecting the press’s First Amendment rights in a civilian trial, ranging from physical access to the courtroom to the availability of paperwork and evidence generated in a case.
These rights are less developed for the military tribunals, though courts have recognized that there is a Constitutional right of access to military justice proceedings. The Military Commissions Act of 2009, which sets the rules for KSM’s trial, is silent on such issues. The Department of Defense, which is acting as judge, jury, prosecution and possibly defense in this case, also maintains exclusive control over access to the tribunal site at Guantanamo and the evidence presented in the case.
The Pentagon and the press have squabbled for years over First Amendment rights to legal proceedings at Guantanamo. In May 2010, news organizations balked when the Pentagon barred four reporters from Guantanamo for identifying an interrogator by name in news reports. In court, the interrogator was called “Interrogator No. 1,” though his real name had been public for years because he gave press interviews. (The Pentagon eased up on some access guidelines after that dispute.)
Limited access means the public might suffer an incomplete or skewed version of the trial of the man allegedly behind the 9-11 attacks. That worries Dalglish, who says the decision to use a tribunal “raises the specter that we are never going to know what happens down there.”
If the Pentagon plans to be recalcitrant in what could become a fight over media access to information related to KSM’s military commission, that stonewalling began today when the Defense Department press office failed to return my call to discuss the matter.