(Update 1/27) Under the Cone of Silence?: Gitmo Military Commission Observer Ground Rules

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

(Update 1/27 – have my clearances and am on my way later this morning. Received detailed response from person assigned to me answering my questions below and some additional questions.  If I get to go later today, some personal magical realism will happen: my grandmother left Cuba 113 years ago as a young girl. I feel her and her episcopal faith with me strongly tonight. Just a very bright light radiating from her memories.)

I am an ordinary American citizen with no security clearances. Earlier this year I became an observer for the Military Commissions.  My approach in this role has been to view myself as an ordinary citizen doing the observing.  Thus, I compare what I have to go through to watch these military commissions to what I would have to go through to watch a case in a state or federal court here in Toledo.  This view of the experience helps me see what additional, if any, hurdles arise.  Then, I can think about those hurdles.

In October 2012, I went to Fort Meade. Maryland and watched two days of hearings on a remote feed in a theater.  The process was simple to get in – show an ID, park your car, and park your cellphone.  Minimally intrusive.

For this next set of hearings, I have asked to be able to watch them as an observer at Guantanamo Bay.  With this specific request came a series of ground rules for such an experience that I am required to agree to abide by in order to be considered to be permitted to go.  This post, is about an ordinary citizen from Ohio starting to wrap his head around what observing the 9/11 Military Commission at Gitmo seems to require of him.

For starters, from watching the hearing on the remote feed at Fort Meade, Maryland, I did get the sense that there was a significant part of the military commission process that was both with the microphone off and off screen.  What I mean is that the concerns of the intelligence community seemed to permeate the hearing in a significant way – almost to make the intelligence concerns be the tail that wags the dog of actually doing the military commission trial.  I felt this particularly in the motions of the defense counsel to have some sort of manner of handling the various levels of protected information with which they were dealing, including the detainee’s statements about their treatment.  Their concern with not running afoul of criminal prosecution in how they treat the protected information was acute and clearly understandable. It seemed that this problem would also be one for the prosecutors or the judge, though for all there was the question of mens rea in the event that they did in fact divulge protected information.

That, possibly, obvious inkling of the pervasive intelligence background for the military commissions was independently confirmed to me this week when I received the ground rules for the military commission observer visit to Guantanamo.  I received these ground rules as part of the process of getting travel papers.  I am required to sign them to be considered to visit and I understand that.

An initial question that did occur to me is a variant of the Groucho Marx line “I would never want to be a member of a club that would have me as a member.”  In this case, the question was whether because the Convening Authority sent these documents to me as a person with no security clearance, the powers that be at the Convening Authority considered these ground rules were not protected information subject to various protections.  Another question was whether, in now having received them, I might discuss them with someone or blog about them as I am doing here without running afoul of some rule.  What I am trying to say is that I have no information on these documents that would let me know if they are protected information and therefore what my obligations are with regard to these documents.

For me, this harkened back to the image in the Get Smart television show and movie of when agents went under the “cone of silence.”  Have I just entered a cone of silence that I had not entered when I was an observer at Fort Meade, just by having received these ground rules?  I do not know.

So I am writing this blog to help people see what a chilling effect is like or at least feels like to this ordinary citizen.  As I read through the ground rules, I wondered whether I could show them to anyone else without running afoul.  For example, would it be a transgression to show these to my Dean?  Or to my students?  Would it be a transgression to talk about them?  On the other hand, as a Non Governmental Organization Representative (NGOR) it did seem that I would have to talk with people at the NGO – which is actually the University of Toledo (memo to self – in what way is a state university a non-governmental organization?).  I had seen the blogging over at lawfareblog.com and those people have discussed much at great length of what happened in the hearings, but maybe the media rules are different from the observer rules.  I went to the Military Commission website and did not see NGO Ground Rules published there but did see through google some discussion of Media Rules and protected information.  But, maybe my search was not the right kind of search.

Put simply, where is the line?

I asked my contact at the Convening Authority my various questions based on receipt of the documents, to wit:

Thank you for the forms which I will fill out for the first time and return tomorrow.  To help with that, I had a couple of questions.

1) On the Sample Invitational Traveler Worksheet – there is a box 22 for Account Type (EFT/banking) that is not marked with an N/A as is the account number and routing number.  From the notes I understand that information is for people being paid.  I am not being paid.  I assume that I am not to fill in that box.  If I am wrong, please let me know.

2) On the NGOR Ground Rules, I am happy to sign it though there are three (sic) points:

a) Are the Sample Invitational Travel Worksheet and the NGOR Ground Rules documents “protected information or otherwise protected from disclosure by these Ground Rules”? I am assuming they are not as to fill them out I may have to discuss them with people here. If I am wrong, please let me know.

b) On page 2, at the top, may an NGOR raise their hand “sitting in the rear of the Press Center to observe press conferences?”  May an NGOR speak with press people?  May observers speak at appropriate times with the lawyers such as “(X)” and “(Y)” who I both know?

c) I must confess I do not understand what “the US Government assumes no liability or responsibility for my personal safety” means.  If possible, could you indicate to me what is intended to be meant by that phrase?  Just want to make sure I understand what I am to understand as to the risks I am taking from the point of view of the Convening Authority in coming to Guantanamo.

d) ) On page 3, the Application to Attend Proceeding of Military Commissions, other than my modest Faculty Development Account, I am self-financing this.  I would be grateful if you would please advise me as to what are the costs other than getting to Andrews AFB and back that the “pay all costs” language means.  I am understanding that I am responsible for my costs of getting to Andrews AFB and getting from Andrews AFB back here (hereafter – “first expenses”).  But, I know that I am to stay in a tent, eat meals at some place , take the Andrews AFB plane to and from Guantanamo (hereafter – “second expenses”).  Are those second expenses going to be charged to me in due course?  If so, I would be grateful if you would please give me an estimate of those costs so I can see if I need to get a bank loan. Sorry to be obtuse, but just want to make sure I understand any financial implications.

All of this may be on a website somewhere.  If that is the case,  your help in locating it would be greatly appreciated.  Thank you for your consideration of these questions.

I understand that this communication is not protected information or otherwise protected from disclosure by these Ground Rules.  If that is wrong, please let me know.

I had a phone conversation with the contact yesterday morning and got some answers to these questions and others will have to be answered by someone else.

I understand that these ground rules documents and my e-mail are not protected information.  But, what if my understanding is wrong?

Now, the view might be taken that not having a clear line is precisely what is intended by sending the document in  this manner with no information as to what are the consequences for the person with no security clearance receiving it who shares the document with anyone else or discusses it with anyone else or decides to blog about it or decides to post it as part of their blog.  Maybe there is some presumption in  the law about these things of which my ignorance does not excuse me, but of which I am ignorant.

On the other hand, given that I am a person with no security clearance and people with security clearances have sent this stuff to me, I can also take the view that if they sent it to me it is because there is no protected information in it for which I do not have a security clearance or else they would have violated the law in sending it to me.  In that case, because I have it and it is not some kind  of leaked document etc then I am free to do with it what I want.  Put another way, I am free to do with these documents what I want including post them on the blog.

Under this vision, the question would nag at me whether the sending of the ground rules in this manner is part of the government setting me up for a future criminal prosecution for  improper handling of this material or material support for terrorism or whatever just because I do something with the document that moves toward the public and others around me to help them understand my experience.

Now, those out there reading this may think I am crazy, and I respect that but, on the other hand, there is some very careful language in the ground rules document.  But, again for purposes of the chilling effect, am I free to include that language here or only a summary of that language or even to write about the fact that such language exists?

If persons are seeing me as being overly cautious, then I might take it another step and ask whether if I posted the document here they would look at it or hesitate to look at it.

It is that hesitancy that occurs for reasons that may range (depending on each of our subjective views) from prudence to overreaction verging on paranoia that is the effect in this space – an example of the chilling effect about which one hears.

And, it is precisely that chilling effect that, as an ordinary citizen, I find myself having to fight with in myself as I go through this process in trying to be a free citizen who recognizes the security concerns but also  wants to be an observer who provides meaning to himself and to other American citizens or foreigners who care to read about the experience.

I can decide to ask the Convening Authority if they object to me posting these Observer Ground Rules here.  But, if I take that approach, then I am accepting a world in which what is permissible is only what is permitted by the governmental authority and for whatever reason that said governmental authority deems appropriate.  In that world, the receipt of information from the government becomes a source of high anxiety as to what to do with it.

This reminds me of the discussion in the wonderful Hans Fallada book, Every Man Dies Alone, about what a Berliner would do if they found one of the protagonists anti-Nazi post-cards surreptitiously thrown on the street.  When, as a good citizen, he turned the postcard he had found in to the Gestapo, would he come under suspicion for having the postcard in his possession?

Where is the edge of the cone of silence?