August 2, 2012

MIAMI — The chief war court judge has agreed to let media and civil liberties lawyers argue for openness at the start of a pre-trial hearing at Guantanamo in the death-penalty case of five alleged conspirators in the Sept. 11 attacks.

A consortium of 14 media groups, including The Miami Herald, and the American Civil Liberties Union separately filed motions protesting protective orders that shield the public from access to secret information in the case.

Judge James Pohl, an Army colonel, agreed to let lawyers argue their case on Aug. 22, the opening day of a week of hearings. He signed the one-page order Wednesday, according to a copy obtained by The Miami Herald. It was still under seal at the war court on Thursday morning.

Defense attorneys for the alleged architect of the 9/11 attacks, Khalid Sheik Mohammed, and his four co-defendants did not oppose oral argument. Nor did the office of the Pentagon's chief war crimes prosecutor, Army Brig. Gen. Mark Martins, who has been trumpeting the war court's transparency.

"Oral argument from the media and ACLU will emphasize the critical public interest in open proceedings at Guantanamo," said James Connell, attorney for Mohammed's nephew, Ammar al-Baluchi, an alleged logistical co-conspirator, who is also known as Ali Abdul Aziz Ali.

At issue is the war court system that employs a 40-second delay of the proceedings, time enough to let an intelligence official hit a white noise button if any of the men describe what CIA agents did to them after their capture in Pakistan in 2002 and 2003 and before their arrival at Guantanamo in September 2006.

In its motion, filed May 2, the ACLU called the practice censorship, and said it was premised on "a chillingly Orwellian claim" that the accused "must be gagged lest he reveal his knowledge of what the government did to him."

The newspaper groups represented in their separate brief call themselves "the press objectors." Besides The Miami Herald and its owners, McClatchy, they include ABC, Inc., the Associated Press, Bloomberg News, CBS Broadcasting, Inc., Fox News Network, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Co., The Wall Street Journal, and The Washington Post.

The media motion calls the government's protective order "overly broad" in its bid to shield CIA activities from public scrutiny.

"The First Amendment allows commission proceedings to be closed only upon a specific finding of a "substantial probability" of harm to national security or some equally compelling governmental interest," First Amendment lawyer David Schulz writes in the press objectors motion filed on May 16.

The start of the trial itself is at least a year away.

©2012 The Miami Herald

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