States, including Fort Meade, a US military base in Maryland.853 This CCTV feed is
broadcasted with the same 40-second delay.854
357. Efforts to accommodate the level of public interest by broadcasting the proceedings in the
United States constitute a positive development. However, such broadcasting cannot, by
itself and in the present conditions involving a 40-second delay of the audio-feed,
sufficiently meet the requirement of publicity of trials.
358. ODIHR takes note of the military judge’s conclusion that the 40-second delay is “the least
disruptive method of both insuring the continued protection of classified information while
providing the maximum in public transparency”.855 However, it is of concern that this
delay may have in fact rendered the proceedings “presumptively closed by withholding
from the public, media, and observers, at the press of a button any access to detainees’
personal accounts of their detention and mistreatment”.856 While considerations of national
security may justify restrictions to the right to a public hearing, any such restriction is to
remain strictly proportionate to its aim. In this regard, ODIHR is troubled by reports of
incidents where the audio transmission of non-classified information was unduly
suspended,857 and where a third party outside the courtroom cut off the audio-feed of the
proceedings without the judge’s knowledge and approval, revealing the existence of an
853
According to an order of December 2014, military commission proceedings are transmitted via CCTV to Fort Meade,
Maryland, Fort Devens, Massachusetts, Fort Hamilton, New York and Joint Base McGuire Dix Lakehurst, New Jersey. However,
several facilities are not available to the general public, including media and NGO representatives, but are restricted to relatives
of the victims of the 9/11 attacks as well as first responders. Media and NGO representatives can watch the proceedings from
Fort Meade, Maryland. United States Military Commission, United States of America v. Mohammad et al., AE 007F, “Order – To
Amend the Commission’s Order For Additional Public Access to Open Proceedings Of This Military Commission Via ClosedCircuit Television Transmission To Remote Locations”, 16 December 2014, pp. 1-2. See, also, United States Military
Commission, United States of America v. Mohammad et al., AE 007, op. cit., note 845, pp. 1-4; “Guantanamo Bay Media
Invitation Announced”, United States Department of Defense website, 14 October 2011, op. cit., note 845; “Military
Commissions Media Invitation Announced”, United States Department of Defense website, 26 September 2012, op. cit., note
845; Donna Miles, “Pretrial Hearings Kick Off for 9/11 Defendants”, United States Department of Defense website, 15 October
2012, <http://www.defense.gov/news/newsarticle.aspx?id=118219>; Jane Sutton, “Defense wants 9/11 trial televised globally
from Guantanamo”, Reuters website, 19 October 2012, <http://www.reuters.com/article/2012/10/20/us-usa-guantanamoidUSBRE89I19620121020>.
854
Karen Parrish, “Chief Prosecutor Outlines Military Commissions Process”, United States Department of Defense website, 8
November 2011, <http://www.defense.gov/news/newsarticle.aspx?id=66011>; Charlie Savage, “Defendants in Sept. 11 Case
Cooperate as Proceedings Resume at Guantánamo”, The New York Times website, 15 October 2012,
<http://www.nytimes.com/2012/10/16/us/sept-11-terrorism-case-resumes-smoothly-at-guantanamo.html?_r=0>; Keith Gerver,
“Coverage of al-Nashiri’s Arraignment���, Lawfare website, 9 November 2011, <http://www.lawfareblog.com/2011/11/coverageof-al-nashiris-arraignment-2/>.
855
United States Military Commission, United States of America v. Mohammad et al., AE 013DDD, “Second Amended
Protective Order #1”, op. cit., note 851, para. 8.a.(3)(a); United States Military Commission, United States of America v. AlNashiri, AE 013M, “Amended Protective Order #1”, op. cit., note 851, para. 47.c(i).
856
United States Military Commission, United States of America v. Mohammad et al., “Motion of the American Civil Liberties
Union for Public Access to Proceedings and Records”, op. cit., note 813, p. 2.
857
“This is not the first time the suspension of the broadcast has been initiated. It is also not the first time the military judge ruled
the evidence should have been discussed in open court”. United States Military Commission, United States of America v.
Mohammad et al., “Unofficial/unauthenticated transcript of motions hearing dated 31/01/2013 from 9:01 AM to 09:22 AM”, op.
cit., note 816, p. 1720-1721. See, also, United States Military Commission, United States of America v. Mohammad et al., AE
013H, “Reply of the American Civil Liberties Union to the Government’s Response to the Motion for Public Access to
Proceedings and Records”, 23 May 2012, p. 11; Jane Sutton and Josh Meyer, “Insight: At Guantanamo tribunals, don’t mention
the ‘T’ word”, Reuters website, 20 August 2012, <http://www.reuters.com/article/2012/08/20/us-guantanamo-tribunalsidUSBRE87J03U20120820>.
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