WASHINGTON - 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.
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.
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.
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.
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
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.
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
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
"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."
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
"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
"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.''