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Media Challenge Military Commission Protective Order, Seek Writ of Mandamus from CMCR

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Wednesday, February 20, 2013 at 5:42 PM

So we learn from this petition, filed with the Court of Military Commission Review (“CMCR”) last Thursday.

Here’s a taste, from the document’s “Preliminary Statement:”

This petition for a writ of mandamus seeks to enforce the public’s constitutional right of access to the proceedings and records of the military commissions at Guantanamo Bay. It is filed on behalf of 14 news organizations (the “Press Petitioners” ) whose reporters regularly cover the commission’s proceedings, including the prosecution in this case of five individuals accused of plotting the attacks of September 11, 2001. Press Petitioners seek to enforce the constitutional limitation on the commission’s authority to bar the public from the discussions of “classified” information during this prosecution, where no compelling need for secrecy has been demonstrated and where the classified information is already known to the public.

As set forth below, the protective order entered in this case unlawfully abridges the First Amendment right of access by automatically excluding the press and public from all evidence and argument concerning “classified” information, without any judicial determination that disclosure of specific information would harm national security or threaten personal safety, and without any assessment of whether the information is already public. This constitutional violation is compounded by the protective order’s improper definition of “classified information” to include the thoughts and memories of the defendants, thereby censoring from the public any evidence defendants may offer about their post-capture treatment and questioning.

In rejecting Press Petitioner’s objections, the commission failed even to address the constitutional issues presented. The protective order it entered conceals information the public has a constitutional right to know, defeats democratic oversight of the commissions, and undermines public confidence that justice is being done. The protective order should be vacated and the commission directed to comply with the constitutional standard governing public access.

The court has set a briefing schedule, and ordered the United States to respond to the petition by no later than next Monday, February 25.  (You can find some background about the press objectors’ claims regarding the protective order, and the commission’s resolution of them, here.)