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A "Gag Order" Regarding Members' Identities in the 9/11 Case?

Wells Bennett
Thursday, May 24, 2012, 10:32 AM

The latest statement from the defense in United States v. Mohammed et al:

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The latest statement from the defense in United States v. Mohammed et al:

The prosecution in the 9/11 Guantanamo Bay case is seeking a gag order barring media or military commissions observers from reporting information about military officers the Pentagon assigns to hear the case.  "This gag order is yet another layer of secrecy the prosecution has asked to impose on the case," said James Connell, attorney for alleged logistical supporter Ammar al Baluchi, also known as Ali Abdul Aziz Ali.

In a proposed order attached to a filing last week (AE014C), the government asks Army Colonel James L. Pohl, the military officer presiding over the case, to prohibit "any press or news organizations, nongovernment organization representatives, or anyone else" from "report[ing] or otherwise disclos[ing] in any way" the identities of the military panel members. "The military panel members will decide both guilt and innocence and the penalty, but they are not a jury," Connell explained. "A jury is a cross-section of the community; these are senior military officers assigned by the Pentagon."

That's an excerpt; the full statement can be found here.  And though the government filing referred to in Connell's release - a reply brief and proposed order (AE014C) - is not yet available to the public, the government's initial motion (AE014), to protect certain unclassified but sensitive material (including members' identifying information), is available. The opening motion says, among other things, that the government seeks protection for "privacy information, witness identities, law enforcement information, and identifying information for the Members of the Commission."  Regarding the latter, the prosecution argues:  

Pretrial proceedings in this case are likely to attract significant media coverage, including coverage of information that will not be submitted to the Members at trial.  To ensure that Members' judgments are not impacted by such information, the Commission should insulate them from pretrial publicity by prohibiting release of their names and other identifying information that would enable individuals to locate and pass information to them.

Additionally, the government's initial filing says that "[p]reventing release of the Members' names and other identifying information before and after trial also preserves their personal privacy and safety."  It is hard to know precisely what's afoot, as far as "gag orders" go, without yet having access to the reply brief cited by Connell and the defense.  But in the meantime, the proposed order attached to the prosecution's opening motion does not appear to bind the media or any third parties; it instead imposes obligations on the defense and prosecution, in their handling of discovery materials implicated by the government's opening motion.  (Query whether, in seeking a protective order, the government can enlarge the scope of its sought relief for the first time in its reply brief, or in a proposed order appended to its reply.)   Use of an anonymous jury is hardly unusual fare in a terrorism case - in Ahmed Ghalilani's prosecution in the Southern District of New York, for example, the jurors' identities were withheld from the public.  It nevertheless is surprising (if not troubling) that, in pursuing the worthy objectives of  juror privacy and safety, the government would attempt to restrict the rights of the press and others not party to the case.  Why not simply seal the names, duty stations, and other identifying information for members, as the government's initial motion suggested? Expect an answer once the proposed order becomes available and the defense files further objections - which, according to Connell's statement, are forthcoming.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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