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Guantánamo Trials Should Be Open—A Commentary by David Schulz ’78

The following commentary was published in The New York Times on April 19, 2012.

Guantánamo Trials Should Be Open
By David Schulz ’78

Last week I stood before a military judge at Guantánamo Bay to argue that the press and public had a constitutional right to observe the proceedings of military commissions. It is an argument I’ve made scores of times on behalf of news organizations objecting to closed proceedings in criminal and civil trials, but this was the first time that a military commission — part of a system of tribunals created in 2006 to try terrorism suspects — agreed to hear such arguments from the press.

Whether this marks a new openness, or is another in a long line of false starts, remains to be seen. But the government has a real opportunity to show its commitment to the rule of law by acknowledging that the public’s First Amendment rights apply at Guantánamo. The values served by open criminal proceedings — public acceptance of the verdict, accountability for lawyers and judges, and democratic oversight of our government institutions — apply there with particular urgency.

The controversy over public access to the Guantánamo trials has come to a head in the prosecution of Abd al-Rahim al-Nashiri, accused of masterminding the 2000 attack on the Navy destroyer Cole. Mr. Nashiri’s lawyers want to meet with him unshackled, asserting that shackling brings back memories of torture and interferes with his ability to assist in preparing his defense. They proposed to call both Mr. Nashiri and a psychologist to testify in support of their request.

The government still considers its interrogation techniques “classified information.” Under this logic, Mr. Nashiri’s own testimony about his own treatment must be kept secret.

But so much is already known about Mr. Nashiri’s interrogation that a secret proceeding on its psychological impact is unwarranted. A report, prepared in 2004 by the inspector general for the Central Intelligence Agency and partly released in 2009, disclosed that Mr. Nashiri had been waterboarded twice, threatened with use of a handgun and a power drill, and held in stress positions that could have dislocated his arms from his shoulders. What real threat would justify preventing the public from hearing his first-person account of this interrogation?

In May 2010, four journalists were expelled from Guantánamo for reporting the name of the chief interrogator of a terrorism suspect, Omar Khadr — even though the interrogator had sought out the press years earlier to tell his story. After an uproar, the Pentagon’s top lawyer, Jeh C. Johnson, facilitated the reinstatement of the reporters on their promise that they would abide by rules governing the commissions, and then set out to revise the rules. Under new rules announced in September, reporters may now make their objections to secrecy to the presiding judge in writing. The decision to hear my argument in person by the top judge in the Nashiri case, Col. James L. Pohl, was an important step forward.

The motion for access, which was filed by 10 news organizations (including The New York Times, a client of mine), argues that the First Amendment obliges that Mr. Nashiri’s testimony be taken in an open courtroom. Under the Constitution, the fact that a specific piece of information might technically be “classified” should not be sufficient to close a hearing if the information is already known to the public (and easily found on the Internet).

On April 11, Colonel Pohl granted Mr. Nashiri’s motion for unshackled visits without taking testimony, so he sidestepped, for now, a decision on the standard that will govern requests to close proceedings at the Guantánamo trials. But the issue will undoubtedly return, and the military’s commitment to openness will again be tested.

In recent weeks the lead prosecutor for the military commissions, Brig. Gen. Mark S. Martins, has made the case that military tribunals are uniquely suited for the prosecution of a narrow class of terrorism suspects and that the use of these tribunals should be recognized as consistent with commitment to the rule of law. But the world will never accept the Guantánamo verdicts if significant testimony is closed for fear of embarrassment over detainee mistreatment.

The thought of a Guantánamo defendant taking the stand to testify about his treatment, in his own words, may not be appealing for many reasons. But we must be prepared to lay out all the facts, wherever they lead, if we are to demonstrate to the world that the verdicts ultimately rendered at Guantánamo are justifiable, however they turn out.

As Chief Justice Warren E. Burger observed in 1980, on the importance of the Constitution’s protection of public access to the courts: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

David A. Schulz is a First Amendment lawyer and a lecturer at Yale Law School.