Five news organizations complained Wednesday that they are being denied access to much of the military commission proceeding against a Canadian terror suspect.
Various arguments in the case of Omar Khadr at Guantanamo Bay, Cuba, are apparently made via e-mail — a communications channel to which the public has no access — and issues apparently are being raised in closed sessions for which no transcripts or summaries are available, the news organizations, including The Associated Press, wrote in a filing.
In addition, the filing stated, the public is not permitted access to motions and other documents submitted by the parties and "even the existence of a motion is not currently disclosed in any publicly accessible way."
"The public is not permitted access to the 'Filings Inventory' of motions, requests for relief and other written records filed with the tribunal," the five organizations added.
The press recognizes the potential for national security issues and questions of personal safety, "but there have been no findings that these concerns require the wholesale denial of access to the pretrial proceedings in this case," said the five organizations.
Besides The AP, the organizations are The New York Times Co., Dow Jones & Company Inc., The Hearst Corp. and The McClatchy Company.
The Pentagon pointed to national security concerns.
"The review procedures by the military commissions court and trial parties may result in some reasonable delays in making the documents available to the general public," said Navy Cmdr. J.D. Gordon, a Defense Department spokesman.
Khadr is one of three Guantanamo detainees facing charges under the Military Commissions Act of 2006. The military plans to prosecute as many as 80 of the 305 men at Guantanamo.
The presiding judge, Army Col. Peter Brownback, has postponed a decision on whether Khadr can be tried by the military as an unlawful enemy combatant. Khadr has not entered a plea, and no trial date has been set.
First military commissions since WWII
The military commissions, which will be conducted at Guantanamo Bay, are the first to be conducted since World War II. It is important that the proceeding in the Khadr case not only be fair but that it be perceived as fair, and that cannot happen unless the public is able to follow and understand the events as they transpire, the five news organizations said.
The Military Commissions Act and its regulations make clear that the public's right to access extends beyond an actual trial to all proceedings, the filing stated.
In addition, the news organizations argued, the First Amendment protects the press and the public from blocking their rights of access to information about the operation of their government.
A challenge to the military commission system is pending in the U.S. Supreme Court and lawyers for the detainees at Guantanamo Bay have asked the justices to guarantee they can challenge their indefinite confinement in U.S. civilian courts.
David Schulz, an attorney representing the news organizations, said he has had no response to a letter to Pentagon general counsel William Haynes over a month ago. The letter stressed the need for media access to a docket of military commission proceedings as well as motion papers and orders in cases, Schulz said in a declaration accompanying the filing to the office of military commissions.