The Pentagon's chief war crimes prosecutor, who, for six years, has been the most public booster of the military commissions, has decided to abandon a years-long practice of briefing reporters and holding news conferences.
"This is a principled decision based on the law and the posture of these cases," prosecutor Brig. Gen. Mark Martins said Oct. 29. "And it's the right time."
More restrictions may be to come. In a 2014 court filing in the Sept. 11 terror attacks case, prosecutors suggested to the judge, Army Col. James L. Pohl, that he may want to impose a gag order on all lawyers in the high-profile tribunal.
They argued that lawyers offering commentary or other information outside of court could prejudice the possibility of "a fair trial by impartial members" — a jury of US military officers, yet to be chosen — in the death-penalty case against accused plot mastermind Khalid Sheik Mohammed and four other alleged accomplices. No trial date has been set.
FBI photo of Khalid Sheikh Mohammed from 2001, used in several FBI wanted posters.
Pentagon spokesman Maj. Ben Sakrisson described Martins' decision as part of an overall rethinking of public affairs strategy by the overseer of the war court, Convening Authority Harvey Rishikof. Throughout the Obama administration, the Pentagon regularly staged news conferences that gave the prosecutor, defense attorneys and families of terror victims a podium at the close of war court hearings.
Now, according to Sakrisson, "this is just the prosecution stepping away from engaging with the media directly. I wouldn't characterize this change as extending to the defense teams."
Family members and victims of terror attacks — chosen by Pentagon lottery and brought to the base as guests of the prosecution — will still be permitted to talk to reporters if they want, he said. "Going forward I expect there will be press conferences of some manner. But the final forum of participants is still under discussion."
When Martins first started doing press conferences in a wooden shed built for $49,000 to look like a Pentagon briefing room, dozens of reporters would travel to Guantánamo. Broadcasters in particular needed the question-and-answer session because recording is forbidden at the post-Sept. 11 court.
Lead prosecutor for the government Brig. Gen. Mark Martins answers questions from reporters during a post military commissions session Jan. 29, 2015 at U.S. Naval Station Guantanamo Bay. Army Photo by Sgt. Adrian Borunda.
For reporters who couldn't make the trip to Cuba, the Pentagon would broadcast the news briefings to a viewing site at Fort Meade outside Washington, DC.
Under the Pentagon's war court rules, the prosecutor needs explicit permission from the convening authority to speak with reporters about the hybrid military-civilian justice system set up in response to the 9/11 attacks.
Defense lawyers don't. Many of them are civilians paid by the Pentagon, and the Manual for Military Commissions lets them talk freely with reporters about unclassified information, guided by their professional ethics.
The Pentagon "has a lot of restrictions around publishing or speaking to the press, designed to give a unitary message from the Department of Defense," said defense attorney Jay Connell. The manual essentially waives a defense attorney's obligation to puppet a US government talking point.
Defense Attorney Jay Connell. Photo from Inter-American Commission on Human Rights.
Connell, who regularly briefs reporters, represents Mohammed's nephew, Ammar al Baluchi. He argues the rules recognize his duty "to inform the public about what's going on in military commissions."
For example, while Martins would recite how many legal motions were argued, how many hours of court were held, and how many pages of evidence were turned over, Connell would try to contextualize what happened in court from the defense point of view.
"So many things which happen in the military commissions relate to larger themes of secrecy, larger themes of torture, and larger themes of unfairness," he said. "My goal in a press conference is to explain what happened that week in the larger context of Guantánamo."
USAF photo by Tech. Sgt. Samuel Morse.
For now, soldiers record the briefings and the videos are posted on a Pentagon war court website set whose motto is Fairness * Transparency * Justice.
If the managers of media policy no longer host news conferences in the shed, Connell said, they'll brief elsewhere. And, "if they get rid of the video recordings, then we would probably go to Facebook Live."
Martins decided to pull the plug on press conferences soon after the Army postponed his Nov. 1 retirement until 2019. He has had the job for six years, and serves as both the chief overseer of war court cases and a case prosecutor in the Sept. 11 and USS Coledeath-penalty trials. Neither trial has a start date.