Lawyers want Guantánamo war crimes case televised, but judge seems skeptical

A defense lawyer for the accused mastermind of the USS Cole suicide-bombing urged a military judge on Thursday to permit open television broadcasting of his client’s military commission trial at Guantánamo.

The lawyer, Richard Kammen, told Judge James Pohl that significant public interest and the novel and controversial nature of the military commission process necessitates wider public scrutiny.

“We want to increase the transparency,” Mr. Kammen said. “We want greater numbers of the public to be exposed to this.”

The lawyer for accused terrorist Abd al-Rahim Al-Nashiri is seeking to have video feeds of the ongoing litigation in the case distributed to broadcast outlets such as C-Span, Fox, and CNN, among others.

The motion was among several legal arguments made during a pre-trial hearing in a high-security courtroom at the US Naval Base, Guantánamo Bay, Cuba. A video feed of the proceedings is being transmitted to a media monitoring facility at Fort Meade, outside Washington, D.C.

During his broadcast argument, Kammen cited the existing video feed as justification for his broadcast request. He said the proceedings were already being filmed and transmitted to the US. There was no reason, he said, not to allow broadcast companies to hook into the feed.

Prosecutors opposed the motion.

“The right to a public trial does not include the right to a televised trial,” said Assistant Trial Counsel Justin Sher.

Live television broadcasts are permitted in many state courts, including in high-profile capital cases. But broadcasts have never been permitted at criminal trials in federal courts or courts-martial, he said.

The same rule that bars those broadcasts also applies to military commission trials at Guantánamo, Mr. Sher said.

Judge Pohl seemed skeptical of the defense request. At one point he stopped Sher in mid-sentence, suggesting that the prosecutor should focus his argument not to the merits of whether to allow open broadcasts or not, but rather whether a military judge has the authority to order such open broadcasts.

The current rule banning the televising of military commissions was promulgated by the defense secretary. Pohl said that unless Kammen could offer a higher authority that would trump that existing rule – such as a constitutional requirement – the military judge was bound to adhere to the defense secretary’s rule.

“Is there any Constitutional right that requires televising a court proceeding,” Pohl asked Defense Lawyer Kammen. “Do you have any case law?”

“No,” Kammen replied, “but Mr. Nashiri has the right to assert the public’s right [to public access] under the First Amendment.”

The judge then asked whether the public had a First Amendment right to attend every trial.

“Absolutely not. We concede that,” Kammen said. But he added: “There are some trials that are so important and so significant that the public’s constitutional right [to access] does exist.”

The Nashiri case is one of two high-profile war crimes cases of captured Al-Qaeda leaders moving toward trial at Guantánamo. The other involves Khaled Sheikh Mohammed, the alleged mastermind of the 911 attacks, and four co-defendants.

Nashiri is charged with planning and directing the October 2000 terror-suicide attack on the Navy destroyer, USS Cole, in the habor at Aden, Yemen. The blast left 17 sailors dead.

Nashiri also allegedly planned and directed a failed attack against the destroyer USS The Sullivans, and played a role in an attack against the French supertanker MV Limburg that killed a crew member.

If convicted, Nashiri faces a possible death sentence.

Nashiri’s lawyers are in the process of filing and arguing a barrage of pre-trial motions in advance of the war crimes tribunal. A trial date has not yet been set.

In addition to the broadcast issue, defense lawyers asked the judge on Thursday to examine whether a senior military official presiding over the commission process – known as the convening authority -- had overstepped his power when he attempted to tell the judge in the Nashiri case which procedures to use during jury selection.

Defense lawyers are also questioning whether the appointment of the convening authority by the secretary of defense complies with the Constitution’s appointment’s clause.

Under that clause, certain senior government officials with broad discretionary power are subject to appointment by the president with required confirmation by the US Senate.

Defense lawyers say that should have been the process used in naming the convening authority. They say the convening authority wields so much discretionary power that his appointment by the secretary of defense undercuts the Constitution’s system of checks and balances.

The defense’s proposed remedy: dismiss all charges against Nashiri.

"Never in the history of the Constitution has one bureaucrat exercised so much governmental authority over life and death with so little democratic accountability,” the defense lawyers wrote in their motion.

Prosecutors countered that the appointment of the convening authority by the secretary of defense does not violate constitutional safeguards.

The convening authority is designated, directed, and supervised by the defense secretary and is therefore accountable within the larger system of checks and balances, Chief Prosecutor Brig. Gen. Mark Martins told the judge.

The convening authority is accountable to the secretary and his actions are reviewable by the courts, Gen. Martins added.

Judge Pohl said he would rule on the pending motions at a later date.

Another round of pre-trail hearings is scheduled in the Nashiri case in October.