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A Move Toward Military Commissions Transparency–And a Promise

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Monday, September 26, 2011 at 11:34 PM

Raffaela linked earlier today to the Weekly Standard article in which the new military commissions chief prosecutor, Brig. General Mark Martins, announced some important new steps towards transparency in commission trials. The point appears in passing in what is really more of profile of Martins, and it reads as though the magazine did not quite understand that Martins was actually breaking news when he disclosed that:

Military commissions will feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States (40-second delay to ensure safeguarding of national security information) (emphasis added).

Carol Rosenberg of the Miami Herald did understand that this was something of a big deal. She writes:

If implemented, the new system would be vastly different from the one that has been in place for previous Guantánamo proceedings. In those cases, reporters and other spectators were required to fly to Guantánamo on specially arranged Pentagon flights. While there, reporters faced strict limitations on where they could go and what they could report, and the limitations and expense helped cut the number of news organizations covering events there.

And for readers of this blog, I think, it’s a particularly big deal–one that will meaningfully enhance the content stream we deliver. As Raffaela noted, I suggested a step like this a few months ago on grounds that the combination of Guantanamo’s geography and the Pentagon’s information policies create real distortions in the coverage we can expect of the commission:

To cite only one example that will, I hope, make this problem vivid to readers of Lawfare, you probably won’t get Lawfare at a trial held at Guantanamo. I cover every single habeas hearing at the D.C. Circuit. And Bobby knows more about the relationship between federal criminal law and the substantive law of the commissions than the combined press corps that will cover the KSM trial. But given our other commitments, professional and personal, it is simply unthinkable that either of us is going to spend weeks or months at Guantanamo monitoring this trial. The result is that we–and Lawfare readers more generally–will be dependent for our real-time commentary on facts relayed to us from people who have different interests in the process than we do and will describe it very differently than we would.

The Pentagon’s information policies compound the inherent geographic problems. Unlike in the federal courts, there is no real-time docketing for briefs, transcripts, and orders. The Office of Military Commissions’ web page takes weeks, sometimes months, to make materials available. The result is that people who don’t happen to be at Guantanamo for a given proceeding have no window into the process other than that offered by the observers who are there.

These problems, it seems to me, have the same simple solution: A dramatic increase in the transparency of the military commissions process. The commissions web site should get real-time filings and quick transcripts, as the PACER system offers in federal court proceedings. And critically, the live video feed of proceedings (which is shot anyway for the benefit of reporters in overflow rooms at Guantanamo) should be available stateside as well. At a minimum, a closed-circuit video feed should be accessible to anyone who wants to see it at sites around the country. This would, I suspect, have a dramatic impact on the number of people who view the process first-hand–and that diversity will affect what ends up being said about the process.

I have been unable to get details of the plan beyond what Martins described to the Weekly Standard. But assuming this announcement proves real, it will enable a whole array of different voices to monitor the trials. And one of them will be Lawfare.

Indeed, here’s my promise: If the Pentagon pulls this off and makes video of the commission proceedings meaningfully available in the D.C. area, Lawfare will be there. And we will cover the proceedings the way Lawfare covers legal proceedings. That is, we will write long and tell you who said what, and we will give voice to the richness of the factual and legal arguments there–precisely what we could not do for a trial held at Guantanamo and electronically quarantined there. For those who value the sort of coverage we provide, Martins’s announcement will make a big difference.