Media Seek Looser Guantánamo Rules

Media Seek Looser Guantánamo Rules
Richard Perry/The New York Times

Detainees in a courtyard area at Guantánamo Bay in June. The military exercises near-total control over images of the facility that can be published by the news media.
By JEREMY W. PETERS
Published: July 20, 2010

After nearly a decade of uneasy coexistence at Guantánamo Bay, the Pentagon and the media are now locked in a dispute that will test how strictly the government can limit what reporters there are allowed to reveal.

A coalition of news organizations has demanded that the Pentagon’s public affairs office rescind parts of its guidelines for reporting on Guantánamo. The 13-page “Media Policy and Ground Rules” packet, which every reporter who travels to Guantánamo must sign, dictates how photos can be taken, who can be interviewed and even what reporters can write in their notebooks.

Top Defense Department officials have agreed to meet with lawyers representing The Miami Herald, The Associated Press, The New York Times and other media organizations next week. But the Pentagon has so far been reluctant to revise the rules that journalists covering Guantánamo have said are the most limiting, namely those that prohibit reporters from revealing information the Pentagon deems protected even if that information is learned from nongovernment sources.

The dispute flared after the expulsion in May of four reporters who published the name of an Army interrogator whose identity was widely known and had been mentioned in hundreds of news reports since 2008. But under a broad provision of the Pentagon’s ground rules, the man could be identified only as “Interrogator Number One,” the anonymous title the government had given him in court documents.

Lawyers for the media companies have argued that such a rule violates a tenet of the First Amendment.

“Certainly the issue of prior restraint on the publication of known information is about as clear a constitutional violation as you can imagine,” said David Schulz, a lawyer representing The Miami Herald.

In addition to raising constitutional questions about the limits the government can impose on the press, the clash between the Pentagon and the media highlights broader issues of how secretive the military commissions at Guantánamo remain. The lack of public access to the commissions has also proven to be problematic for the Obama administration, which has vowed greater transparency but continues to allow the Guantánamo proceedings to operate in the shadows.

“I really think there’s a failure to believe that access is important,” said Andrea Prasow, a senior terrorism counsel for Human Rights Watch and a former defense lawyer for Guantánamo detainees. “I can go down there because I have been cleared by the Defense Department to get on a government plane and attend the hearings. But the rest of the world can’t do that. These trials aren’t public. And so it’s that much more important the government be as open as possible.”

Many of the rules have a clear national security purpose, such as prohibiting photos of military satellite equipment or security checkpoints. “The ground rules at Guantánamo are essentially designed and fashioned in a manner that allows us to keep those proceedings as open as possible,” said Bryan Whitman, the Pentagon’s deputy assistant secretary for public affairs. “They’re certainly not designed to make things inconvenient. They are designed to protect the integrity of the proceedings.” Yet other rules seem arbitrary and excessive, journalists who have covered Guantánamo said. Reporters in the courtroom there may not chew gum or stretch during proceedings (Page 12). Some have been reprimanded for doodling in their notebooks. Reporters are also forbidden from engaging in casual conversation with the Cuban or Haitian migrant laborers who work on the base (Page 4).

Almost any form of communication with anyone on the base must be approved in advance. If information the government deems protected is inadvertently disclosed, the Pentagon can order reporters not to reveal it even though under standard journalistic practices such information would be considered fair game (Page 10).

Military personnel must escort journalists almost everywhere they go on the base, even to use the bathroom.

For photographers, the military exercises near-total control over the images that can be published. Before any photograph can be transmitted electronically off the base, a government censor must review it. No cropping or editing of photos is allowed, meaning that if just a small portion of the photo contains something the military does not want released, the entire photo will be deleted. The same standard applies to video. If anything slips into a frame that the government deems protected, the whole tape is destroyed.

The Pentagon says all the ground rules have a purpose, even if that purpose is not necessarily self-evident. The rules about stretching and chewing gum, for example, are intended to preserve decorum in the courtroom, said Mr. Whitman of the Defense Department. The ban on talking to Cuban or Haitian workers is to protect their identities for fear of retribution, he added.

The rule that has generated the most pushback from media organizations is one that the four banned reporters — Carol Rosenberg of The Miami Herald, Michelle Shephard of The Toronto Star, Steven Edwards of Canwest and Paul Koring of The Globe and Mail in Toronto — ran afoul of when they printed the name of the interrogator, Joshua Claus, who is a defense witness in the case of a Canadian citizen being held in Guantánamo on charges of killing an American soldier.

The Pentagon has lifted the ban for Ms. Rosenberg, Ms. Shephard and Mr. Edwards. But as a condition of their return, they were required by Mr. Whitman to write letters saying they understood why they were banned. Mr. Koring refused and remains unable to return to Guantánamo.

Ms. Rosenberg said she fought her expulsion on principle. Of the few American newspapers that still cover the commissions, The Herald is the only one that sends a reporter down to Guantánamo on a routine basis.

“I only go down there because nobody else does — to report on a court that nobody else can see.”

The restrictions on the press appear excessive to some independent observers.

“It reminds many people of reporting in the Soviet Union — behind the Iron Curtain,” said Jennifer Turner, a human rights researcher for the American Civil Liberties Union who has been traveling to Guantánamo Bay to witness the military commissions for the last three years.

Ms. Turner said some small inconveniences seemed punitive, such as forcing reporters to use portable toilets that sit outside all day under the blistering tropical sun rather than allowing them to use bathrooms inside the court. (Mr. Whitman said reporters lack the security clearance needed to enter the area of the court where the bathrooms are.)

“It’s these small indignities that just feel intentional,” Ms. Turner said. “I can’t think of a legitimate reason not to let journalists use the plumbing.”