Press Groups Call Gitmo Banning Prior Restraint

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” … The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” SCOTUS Pentagon Papers Decision

A coalition of press outlets have written DOD General Counsel Jeh Johnson, calling that the banning of four Gitmo reporters for publishing the name of Omar Khadr interrogator Joshua Claus an unconstitutional example of prior restraint.

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.

[snip]

“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.”

The news organizations are also taking issue with the way DOD reviews and deletes images for classification reasons.

What’s particularly interesting about this challenge, IMO, is how the timing is going to work out. As the article notes, DOD has agreed to lift the ban on the four reporters on August 5 (though I believe the reporters will have to “reapply” for credentials, providing one more opportunity for mischief).

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.

That is, in a show of faux-reasonableness, DOD has agreed to let the three best Canadian Gitmo reporters and the best Gitmo reporter, period, apply for credentials again on August 5. But, as the article makes clear, that means the journalists won’t be able to attend “the hearing the reporters were covering” which starts up again in a week. Canada’s best Khadr reporters and Carol Rosenberg will be able to reapply to cover Khadr’s actual trial, but they won’t be able to cover the rest of his suppression hearing, which reconvenes on July 12.

That hearing, of course, concerned whether or not Omar Khadr’s confessions should be thrown out because of abuse he suffered at the hands of his interrogators.

I’ve noted before that DOD’s own explanation for the banning clarifies it doesn’t want reporters connecting the crimes for which Joshua Claus has already been convicted–including involvement in the death of Dilawar–with the threats of rape and death he made against Khadr.

If we take DOD at its word that the big problem with naming Joshua Claus as Interrogator #1 even after he has been named as Khadr’s primary interrogator at Bagram in the past, then the big problem must be connecting the content of Claus’ testimony at this week’s hearing–that he threatened Khadr with rape–with the general climate of abusiveness which led to the deaths of two detainees.

Remember, DOD is arguing that Khadr’s admissions after he heard this story implicitly threatening rape and possibly death were untainted by abuse. That’s the whole point of this hearing. That claim is much harder to sustain if we also know that the same guy who threatened rape went on to contribute to another detainee’s death.

The argument about prior restraint is probably a good one and may improve things going forward.

But it’s not clear it’s going to get Carol Rosenberg and Michelle Shepherd down to Gitmo for the conclusion of the suppression hearing.

Why is DOD so worried about exposing its evidentiary standards to scrutiny of good reporting?

image_print
  1. BoxTurtle says:

    Why is DOD so worried about exposing its evidentiary standards to scrutiny of good reporting?

    Its standards wouldn’t hold up in a real court and good reporting would show that.

    But I still think the real intent here is to keep reporters under control in the future. You report that, we ban you. There stuff coming up that DoD likely wants to absolutely control the way that it spins. Squish ’em NOW, so they’ll be good lap dogs when the important stuff comes by.

    Boxturtle (Win or lose, it looks to me likes the supremes are going to let Obama hold ’em forever)

  2. fatster says:

    The Bush/Cheney legacy just rolls right along, with nobody available or willing to stop it, and so many others engaged in the impossible of task of trying to cover it up and keep it covered.

    Meanwhile,

    Army drops ‘psy ops’ name for influence operations

    “The Army has dropped the Vietnam-era name “psychological operations” for its branch in charge of trying to change minds behind enemy lines, acknowledging the term can sound ominous.

    “The Defense Department picked a more neutral moniker: “Military Information Support Operations,” or MISO.”

    A bowl of miso will never taste quite the same again.

    LINK.

    And in the aftermath of the McChrystal-Rolling Stone article,

    Defense Secretary Gates tightens rules for media relations

    LINK.

    • BoxTurtle says:

      Keep sayin’ that, buster. In a less than a month, we’ll be able to lock your sorry @$$ up just for being Canadian. We just have to trick you to AZ.

      Boxturtle (Channeling the DoD. The above is classified TS/SCI, you can’t discuss it)

        • earlofhuntingdon says:

          Police action along Yonge Street during the G20 meetings notwithstanding, I’d enjoy Toronto and leave Sedona, et al., for another time.

          • skdadl says:

            If only there had been some police action on Yonge. For a couple of hours on Saturday last, the vandals roamed and smashed along Queen and Bay and Yonge, and there were NO police at all, in spite of the $1 billion-plus and police everywhere else. Then the vandals disappeared, and the police arrested everyone else everywhere else for another day-plus.

            Well, when I say no police at all — it’s pretty obvious that the lead smashers were provocateurs. I guess we should be used to this, but it’s still shocking to see how easily people fall for the game.

            • fatster says:

              What’s most appalling is that all the damage that was done (burning police cars, smashing windows and so on), was deliberately done at y’all’s expense just so the police could get their jollies off arresting a bunch of innocent people, making them feel perfectly miserable for hours, then releasing them with no apology, no nuttin’–and nobody will order an investigation. That practice enrages me from all kinds of directions.

              The way all of you held together and dealt with that prolonged violent insult is truly an inspiration, skdadl. Truly.

              Hope all of you are enjoying your bbq today and Petro made a huge batch of chocolate martinis. Cheers!

            • earlofhuntingdon says:

              As with Obama, planned inaction is action.

              Ian Welsh asked why the police made a conscious decision to let vandals reign, as if they were panicked swimmers tiring themselves out, then move in and sweep up the non-violent along with the extremists? Someone made the decision to “use” the police forces that way; presumably not those living or working along the path of these protesters.

            • fatster says:

              I hope in time some justice will be done for those in Toronto who were roughed up, threatened with rape and so on. It did just happen in LA as a result of a police riot of 2007. LINK.

  3. ShotoJamf says:

    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.

    So what other entities are signed on? AP, Reuters, NYT, WaPo and DJ & Co is a good start. Kick asses and take names.

  4. mui1 says:

    Oh well, if I didn’t have doubts already that this “trial” had anything to do with justice, I’d start to doubt after reading this :
    “Canada’s best Khadr reporters and Carol Rosenberg will be able to reapply to cover Khadr’s actual trial, but they won’t be able to cover the rest of his suppression hearing, which reconvenes on July 12.

    That hearing, of course, concerned whether or not Omar Khadr’s confessions should be thrown out because of abuse he suffered at the hands of his interrogators.”

  5. skdadl says:

    eoh and fatster (and Ian, if you’re around), if one good thing has come out of all this, it is that the so-called black bloc tactic is finished, at least with people on the left here.

    The black bloc’ers don’t believe in organizing or in solidarity? They break off, purposely divide the people who were united? They make themselves prime pickin’s for provocateurs? Fine. No more solidarity with them.