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Secret Trials and Gag Order for Defense Counsel

While the commission proceedings are presumptively open to the public and media, the rules give wide latitude to the commission members to close proceedings to the public and to the accused’s chosen defense lawyer. They also limit the ability of defense counsel to speak publicly about the proceedings.

The rules give the Pentagon broad discretion to conduct proceedings in secret in order to protect what it determines to be national security interests. The Appointing Authority or Presiding Officer may not only decide to close proceedings, but may exclude the accused, civilian defense counsel, or any other person, except the assigned military defense counsel. The Appointing Authority retains the discretion to decide whether the press and the public may attend open proceedings, and whether transcripts of open proceedings will be publicly released.³⁸

The commission rules contain various provisions that prevent defense counsel from speaking publicly about their cases or commission proceedings. Collectively these rules impose a gag order on defense attorneys, a dictate of silence that contradicts the fair trial purposes of open proceedings.³⁹

One commission rule, discussed above, prevents defense counsel from discussing information about the case with anyone except the defense team, potential witnesses and experts. In addition to constraining defense counsel investigations, this rule precludes defense counsel from talking to the media or public at large about the case. Another commission rule prohibits defense counsel – both defense and civilian counsel – from making statements about military commission cases or other matters relating to the commissions to the news media, unless they have received approval from the Appointing Authority or the General Counsel of the Secretary of Defense.⁴⁰

There is no basis for giving the Defense Department control over what civilian counsel say outside of court. We know of no precedent in either civilian courts or the rules of military justice for such a gag order. Judges sometimes impose gag orders on attorneys in individual cases to protect the interests of justice, e.g., to ensure fair proceedings before an unprejudiced jury. Prohibiting attorneys from revealing protected or classified information to the public is also a familiar concept in the U.S. criminal justice system. As written, however, the commission rule is not limited to protecting sensitive information nor is it necessary to further the interests of justice.

The only apparent purpose of the gag rule is to control what the public may learn and understand about commission proceedings. Such a purpose is inconsistent with right of the public to have access to information about what its government is doing, a right that is particularly significant in the context of such nationally and internationally important proceedings. Limiting defense counsel's ability to speak to journalists can only impede the media's -- and hence the public's -- understanding of the significance of developments during the proceedings.

Additionally, the military commission rules prohibit defense attorneys from ever making any public or private statements regarding any closed sessions of the proceedings.⁴¹ Human Rights Watch understands that the counsel’s right to speak and the public’s right to know must be balanced against the legitimate Defense Department goal of protecting national security information. Indeed, one of the commission rules commits attorneys to never make public or private statements regarding classified or protected information.⁴² But the rules imposed on defense attorneys silence far more than the disclosure of such information. For example, the rule would prevent defense counsel from ever commenting on whether the exclusion from closed sessions affected the counsel’s ability to mount an effective defense or whether the rulings during closed sessions were fair -- even if no classified or protected information would be disclosed in such comments. The press and the public will not have access to closed sessions; their only ability to evaluate whether justice was served in those sessions will be through comments made by defense counsel or the prosecution.

While the rules suggest defense attorneys may seek prior approval for public statements that would otherwise be prohibited, they do not contain any criteria to guide military authorities considering such requests. There is, for example, no requirement that any such request must be granted as long as protected national security information is not revealed.