Did the Pentagon cave on four banned reporters at Gitmo trial?

Tomorrow, on Tuesday, August 10, the first military commission trial under the Obama administration will begin at Guantanamo — that is unless the Supreme Court intervenes in response to a defense lawyer’s whihc was petition filed last week.

Omar Khadr, a Canadian citizen charged with the death of Army Sergeant First Class Christopher Speer in Afghanistan by tossing a hand grenade in a July 2002 fire fight, has been controversial since his capture. That’s due in part to his age at the time, nationality, and also because his infamous father Ahmed Said Khadr is a top aide to Usama bin Laden.

Though Khadr was first brought before a military commission hearing five years ago, complex legal hurdles have delayed his trial countless times. Since he was 15 years old at the time of the attack (he’s now 23), NGOs and many in the press have made him the poster child for everything they see wrong with Guantanamo.

The drama is sure to continue during the trial as four reporters who were banned by the Pentagon several months ago for offenses in covering his pre-trial hearings will be in attendance.

In a move that evokes memories of Gen. Stanley McChrystal’s ouster following his ill-advised Rolling Stone exposé last month, the Pentagon has suffered yet another defeat by the media through the forced re-instatement of these four reporters. In this case, Obama political appointees overruled career civilian and military officials who had issued the ban.

This was despite the Pentagon’s charge that the reporters – The Miami Herald’s Carol Rosenberg and 3 Canadians… The Toronto Star’s Michelle Shephard, The Globe & Mail’s Paul Koring, and CanWest News Service’s Steven Edwards defied a military court order by revealing the name of a protected witness at hearing on May 5.

Still in a state of shock after lawyers affiliated with the John Adams Project who were representing detainees allegedly stalked and photographed CIA operatives last year — then showed their pictures to 9/11 co-defendants in an attempt to build a torture lawsuit — the Pentagon could not tolerate another breach of protected identity disclosure.

The witness in the Khadr case, a former Army Sergeant who served as an interrogator in Afghanistan and was later court-martialed and sentenced to 5 months in prison for detainee abuse, only agreed to testify in court if his identity would be protected. Judges typically grant protection requests to witnesses who are at high risk from those seeking retribution… in this case, from Al Qaeda.

Ignoring the judge’s written order and verbal reminder, the four reporters revealed his name anyway, arguing that since he had given one "on-the-record" interview last year (coincidentally with Ms. Shephard), the judge had no authority to protect his identity. The handful of other reporters also in attendance at Guantanamo stuck by the rules simply labeling the protected witness "Interrogator #1," in their reports. Yet, as a result, they were scooped by their competition.

Miami Herald Executive Editor Anders Gyllenhaal chalked it all up to a "misunderstanding," noting the witness’s name was already in the public domain and in any case, the newspaper published it before the judge’s reminder in court on the afternoon of May 5.

The Pentagon disputes that claim, noting the four media outlets continued to publish the name between the evening of May 5 and into May 6, well after the judge’s admonishment instructing all courtroom observers to follow the written protective order. The four reporters were promptly banned on May 6.

Meanwhile, one of the reporters who was banned is no stranger to controversy, including a previous experience with banishment from the military while covering the 1st Marine Division during Gulf War I. The Miami Herald’s Ms. Rosenberg has been notorious for clashes. In fact, as the Pentagon spokesman for the Western Hemisphere including  Guantanamo from 2005-2009, I personally filed two complaints with The Miami Herald executive leadership in an attempt to stop her outrageous comments and use of profanity that would make even Helen Thomas blush.

Pentagon officials simply became weary of such a prolonged, contentious relationship with one reporter, and decided the ground rule violation was the last straw before enacting a ban.

In seeking to overturn the Pentagon’s decision, lawyers representing The Miami Herald and Canadian media found powerful allies, and according to Mr. Gyllenhaal "naturally" joined forces with legal teams from The New York Times, Wall Street Journal and the Associated Press.

Though these three media giants were not involved in the banning episode, they all shared long-standing — and often legitimate concerns — over the difficulties associated with news reporting on Guantanamo. This included numerous lawsuits over the lack of access to detainee case files, combined with a letter to Secretary of Defense Robert Gates regarding chronic instances of photo deletions and even video seizure by overzealous security minders exercising absolute authority over imagery release.

Ironically, most media and NGOs now complain that Guantanamo is actually less transparent under the Obama administration than it was under President Bush.

Once the "big media" were brought in to the legal picture on the banning issue, it was all but over for the Pentagon. In retrospect, since this administration includes nine attorneys who represented Al Qaeda-linked detainees, it is amazing that the ban lasted this long.

While no consolation to the former Army Sergeant and his family who are now at higher risk of reprisal from Al Qaeda, it should be no surprise that the Obama administration lacked the will for a prolonged legal fight in the Pentagon’s name. Looks like they simply said, "nah, it’s easier to quit…" just like their other hollow  Guantanamo promises.

J.D Gordon, a Senior Fellow at the Center for Security Policy, is a retired Navy Commander who served in the Office of the Secretary of Defense from 2005-2009 as the Pentagon spokesman for the Western Hemisphere.