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The document you are trying to access is currently undergoing a security review per the 2011 Regulation for Trial by Military Commission Chapter 19 Section 4. At the completion of the security review, and if the document is deemed publically releasable, it will be made available to the public 15 business days after the document was filed with the court.

Please check back often as, once documents become approved for release, they will be immediately uploaded to this website.

Chapter 19

PUBLIC ACCESS TO COMMISSION PROCEEDINGS AND DOCUMENTS 19-1. GENERAL

Section 949d(c)(2) of the Military Commissions Act of 2009 provides that “[t]he military judge may close to the public all or a portion of the proceedings . . . only upon making a specific finding that such closure is necessary to— (A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods or activities; or (B) ensure the physical safety of individuals.” Consistent with this statutory requirement, the goal of the DoD is to make military commissions accessible to the public to the maximum extent possible, consistent with the interests of national security, the rights of the accused, and other interests protected by law. Making military commissions accessible to the public includes providing access to military commission proceedings, transcripts, pleadings, filings, rulings, orders and other materials used at military commission proceedings, to the extent that these materials are not classified, covered by a protective order, or otherwise protected by law, including the rules and regulations governing military commissions.

19-2. APPLICABILITY

The provisions of this Chapter apply to persons who may obtain information as the result of duties performed in connection with the processing of an accused, the investigation of suspected offenses, or proceedings conducted by military commission. These provisions are applicable to all military commission cases from the swearing of charges until the completion of trial and appellate proceedings or any final disposition of the case. These provisions also provide guidelines for the release or dissemination of information to the public, including news media representatives, or other persons or agencies.

19-3. PROTECTED INFORMATION

a. Pursuant to RMC 806, the military judge may issue protective orders limiting the public disclosure of “protected information.”

b. Protected information, for purposes of commission proceedings, is non-classified information subject to a properly issued protective order by an official authorized to issue such an order to prevent public dissemination of such information.

c. The military judge may resolve any dispute raised by the parties or by members of the public, including news media representatives (or their counsel), regarding whether material presented at trial, at a hearing or in a filing, ruling, order or transcript, may be released to the public or is not appropriately designated as “protected.” See Chapter 17- 4. These disputes, once properly raised, shall be resolved promptly. Classification decisions by the DoD Security Classification/Declassification Review Team and the

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original classification authorities of other non-DoD federal departments and agencies are not subject to review by the military judge.

d. A non-party’s request to challenge the applicability of a protective order to the military judge’s designation of information as protected information shall be submitted in writing to the Chief Clerk with a copy to the attorneys of record. Written challenges must identify with specificity (i) the protected information at issue (ii) the reason(s) for believing the “protected” designation is not valid, and (iii) any supporting documentation relevant to substantiating that claim. The attorneys of record may, at their discretion, file a written document in support of, or in opposition to, a non-party’s challenge. The military judge may request the views of counsel of record, if not otherwise provided. The military judge need not hear oral arguments on any such motions. If the military judge concludes that the information must be protected in order to prevent damage to national security or ensure the physical safety of individuals, the military judge shall issue a finding that protective measures are necessary. See 10 U.S.C. § 949d(c).

19-4. PUBLIC RELEASE OF TRANSCRIPTS, FILINGS, RULINGS, ORDERS AND OTHER MATERIALS

a. With the exception of transcripts, information subject to release under this regulation shall be released by the Chief Clerk to the custodian of the OMC website.

b. Releasable filings, opinions and orders are those versions of such materials that contain no classified or protected information, or from which all such information has been redacted by the DoD Security Classification/Declassification Review Team and/or the pertinent non- DoD federal department and agency, and have been filed with the court in accordance with the provision of Chapter 17-1(c) of this Regulation.

c. Except as otherwise provided in the M.C.A. and the M.M.C., the Chief Clerk shall release to the individual identified by the Convening Authority as the custodian of the OMC website all releasable filings and orders for posting on the OMC website. The releasable filings and orders shall be posted in accordance with the following timelines:

1. Filings and orders that do not require classification security review under Chapter 17-1 shall be posted within one business day of filing with the military commission;

2. All other filings and orders shall be publicly released after the DoD Security Classification/Declassification Review Team and/or the appropriate non-DoD federal department and agency original classification authority confirms to the commission that such filings and orders are in publicly releasable form. The classification review by the DoD Security Classification/Declassification Review Team and/or the appropriate non- DoD federal department and agency original classification authority shall generally take no longer than 15 business days. See Chapter 17-1(b). The 15 business day security classification review period shall be extended for a reasonable period if the appropriate non-DoD federal department and agency original classification authority or the Officer

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in Charge of the DoD Security Classification/Declassification Review Team submits a notification to the Chief Clerk declaring that such additional time is required by exceptional circumstances. Any additional time provided shall be the minimum additional time required in light of the exceptional circumstances set out in the request for additional time.

d. Within one business day of a military judge’s decision on a motion not containing classified or protected information, the Chief Clerk shall coordinate with the custodian of the OMC website to ensure the filings inventory on the OMC website is updated by the custodian to reflect the disposition of the motion, and, if written, the Chief Clerk shall provide the unclassified opinion to the custodian for posting on the OMC website. Decisions on motions or filings containing classified or protected information must be reviewed and redacted by the DoD Security Classification/Declassification Review Team and any relevant non-DoD federal department and agency original classification authority as described in 19-4(c)(2) prior to public release.

e. Except under exceptional circumstances, including equipment failure, the Convening Authority shall ensure the custodian of the OMC website posts a draft, unofficial, unauthenticated transcript of the public portions of the military commission proceedings to the OMC website as soon as practicable after the conclusion of a hearing each day the military commission is in session (whether the hearing is recessed, adjourned, or closed). This draft, unofficial, unauthenticated transcript shall be prepared by a court reporter seated in a room that receives an audio feed of the proceedings that is identical to the audio feed broadcast in the public gallery. This procedure will avoid inclusion in the draft, unofficial, unauthenticated transcript of any inadvertent utterances of classified or protected information inside the courtroom. Further, this draft, unofficial, unauthenticated transcript shall indicate that it is an unofficial, unauthenticated draft that may be further revised, and that it is being released to facilitate the public’s access to military commission proceedings.

19-5. EXCEPTIONAL CASES

The provisions of this section are not intended to restrict the release of unclassified, unprotected information designed to enlist public assistance in apprehending an accused or suspect who is a fugitive from justice or to warn the public of any danger that a fugitive accused or suspect may present. Further, because the purpose of this section is to prescribe generally applicable guidelines, there may be exceptional circumstances that warrant the release or non-release of unclassified or unprotected information. In these cases, the military judge shall be responsible for determining whether such material shall be released.

19-6. SPECTATORS AT MILITARY COMMISSION SESSIONS

The proceedings of military commissions shall be public to the maximum extent practicable. In general, all persons granted permission to attend a session, except those who may be required to give evidence, shall be admitted as spectators. The Office of Military Commissions shall coordinate travel and attendance of all spectators except news media representatives. The Office of the Assistant Secretary of Defense for Public Affairs shall coordinate all matters involving media attendance at military commission sessions, subject to the authority of the military judge. The military judge may close proceedings of military commissions to the public only upon making the findings required by M.C.A. § 949d(c) and R.M.C. 806.

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