Guantánamo Tribunals and the First Amendment: A Question of Access


In some respects, military trials are not that different from the kinds of proceedings held in most downtown courthouses, the chief prosecutor at Guantánamo told an audience at the University of Miami. Among the similarities: Not only are defendants presumed innocent, he said, but they have the right to counsel, to hear the charges against them read aloud before a judge, and to present exculpatory evidence.

Brig. Gen. Mark Martins, who became Chief Prosecutor in the Office of Military Commissions in October 2011, made the remarks during a panel discussion titled "Guantánamo, Military Commissions, and the Imperative of Transparency," an event arranged and moderated by Miami Law Professor Christina M. Frohock. General Martins, a Harvard Law School graduate, was commander of the Rule of Law Field Force in Afghanistan under Gen. David Petraeus before being appointed to oversee the prosecution of the many military trials expected to take place at the U.S. military base in Guantánamo Bay, Cuba.

General Martins, fully aware of the common view that the military tribunals appear to be anything but fair and transparent, said it was imperative that the military not conduct "secret justice, but something that upholds our highest values," and must "make sure that national security is not used as a talisman to close things down."

"I completely echo the need for transparency," he said, adding that the military tribunals are covered by some 60 news organizations.

On the opposite side of the issue was David Schulz, a Yale Law School graduate and partner at Levine Sullivan Koch & Schulz who is the lead counsel for a broad coalition of news organizations that challenged the military's rules for media access to Guantánamo hearings and trials. "Why are we as a country building a system of separate military justice?" Schulz asked. He said that legal precedents have long established that the public has the right to observe the workings of the government, including court proceedings, and yet military courts have taken the position that anything that happened to detainees while in custody – including, presumably, torture – is classified information and not available for scrutiny by the public and the press.

"We have a fundamental disagreement about how accessible these proceedings are," Schulz said. "The world community is not going to accept the validity of these proceedings if everything these defendants say on the stand must be taken in secret."

Gen. Martins responded that "there really are things that we have to protect," including "sources and methods" of intelligence gathering. His objective, he said, is "not to rely on any secret evidence" when prosecuting Guantánamo detainees.

Professor Frohock, who teaches a seminar on legal issues in Guantánamo, said the military commissions are "current events under a global spotlight."

"Guantánamo is in the news almost daily," she said. "The military commissions raise interesting legal issues, including constitutional rights, media access, and criminal procedure. One of my goals in organizing this event is to show that we can have civil, respectful, and intelligent discussions about Guantánamo."