Military Courts: DOD Should Assess the Tradeoffs Associated With Expanding Public Access to and Information About Terrorism Trials

DOD is in the pre-trial phase of the military commissions' proceedings it is conducting to try the alleged perpetrators of terrorist attacks on the USS Cole and September 11, 2001. The Military Commissions Act of 2009 specifies that proceedings shall be publicly held unless the judge makes findings that justify a closed session, such as national security concerns.

The National Defense Authorization Act for Fiscal Year 2018 included a provision for GAO to study the feasibility and advisability of expanding access to commissions' proceedings that are open to the public. This report describes (1) how DOD currently facilitates public access to proceedings; (2) challenges the public faces in gaining access to or obtaining information on proceedings; and (3) what is known about potential options to address public access challenges, including any related tradeoffs. GAO analyzed relevant laws and guidance; conducted a non-generalizable survey that received responses from 248 victims of terrorist attacks and their family members; collected data from DOD's website to analyze timeliness of court document postings; and interviewed relevant DOD officials and other government and non-government stakeholders.

The Department of Defense (DOD) currently facilitates public access to and information about military commissions' proceedings at Naval Station Guantanamo Bay (NSGB) in Cuba by:

communicating directly with victims and their family members about hearings;

enabling selected members of the public to view proceedings in-person;

providing five sites in the United States to view proceedings remotely via closed circuit television (CCTV); and

making information such as court documents available on the Office of Military Commissions' website.

The public faces various challenges in gaining access to military commissions' proceedings or obtaining information about them. First, some aspects of the proceedings limit public access, but addressing them is largely outside of DOD's control. For example, proceedings, by law, are held on NSGB—a location that is largely inaccessible to the general public. Further, cases currently before the military commissions have spent 4-10 years in pre-trial hearings with trials yet to be scheduled, which some suggest has lessened media coverage and public visibility. Second, there are other challenges that DOD officials have acknowledged that they have a greater ability to address. For example, the courtroom gallery is limited to 52 seats for those permitted to travel to NSGB. Additionally, all five CCTV sites are located within a span of 600 miles on the East Coast of the United States. However, victims and their family members—the primary intended users of these sites—often live a significant distance from these locations.

A number of options may potentially address some of the public access challenges identified. DOD could potentially expand the viewing gallery to accommodate more people as part of an ongoing project to renovate the NSGB courtroom. However, DOD officials cautioned that it would require a commensurate increase in the lodging needed to house more visitors, which may not be supported by current levels of resources. Further, DOD has two potential options for addressing challenges with the remote viewing of proceedings. First, DOD could potentially increase the number and geographic dispersion of CCTV sites. Second, DOD could potentially maximize public access by broadcasting proceedings via the television or internet. DOD officials acknowledged that both options are possible and likely would require a relatively small outlay of resources. However, broadcasting proceedings via the television or internet is currently prohibited by DOD's regulation, and DOD officials were especially concerned with the security implications of this option.

DOD has not assessed the tradeoffs nor identified or analyzed the risks of options for expanding public access to military commissions' proceedings. Consequently, DOD has not developed a strategy to address challenges or identified the resources needed to achieve its public access goals. Until DOD does so, it cannot be sure that it is meeting its goal of maximizing public access and may not be prepared for the potential increased demand for public access that is anticipated when proceedings move into the trial phase.

GAO recommends that DOD identify and analyze the risks associated with potential options for expanding public access to proceedings, and develop a strategy, as appropriate, for how it will meet its public access goals with the expected increase in public interest. DOD concurred with the recommendation.

Department of Defense (DOD) officials and non-government experts in  national security and legal matters have referred to the current military  commissions’ (commissions) proceedings as the most important criminal  trials in United States history. These trials, which are currently held at  Naval Station Guantanamo Bay (NSGB), Cuba, are for the alleged  terrorists the U.S. government has charged with a variety of war crimes,  including attacks against the United States, such as the USS Cole and  September 11, 2001 (9/11) attacks. The Military Commissions Act of  2009 and DOD guidance provides that commissions’ proceedings shall  be publicly held unless the military judge makes findings that justify a  closed session, such as national security concerns. From fiscal years  2012 to 2018, according to DOD, it has spent $679.6 million on  conducting these commissions and plans to spend almost $1.0 billion  more from fiscal year 2019 through at least fiscal year 2023.

The National Defense Authorization Act for Fiscal Year 2018 included a  provision for us to conduct a study on the feasibility and advisability of  expanding the public availability of commissions’ proceedings that are  open to the public. Further, the accompanying conference report  included a provision for us to collect and evaluate views from a wide  variety of sources—both in the government and the public—on expanding  public access to commissions’ proceedings. Such sources include  various government departments and offices, non-governmental and civic  organizations, the media, legal and national security experts, and victims  of terrorism and their family members.

This report describes (1) how DOD currently facilitates public access to  military commissions’ proceedings; (2) the challenges, if any, that the  public faces in gaining access to or obtaining information on these  proceedings; and (3) what is known about potential options to address  public access challenges, including any related tradeoffs.

At the beginning of our review in January 2018, there were five active  commissions’ cases, which are included in the scope of this review:  United States of America v. Khalid Shaikh Mohammad et al. (2); United  States of America v. Abd al Hadi al-Iraqi; United States of America v. Abd  al-Rahim Hussein Muhammed Abdu Al-Nashiri (2); United States of  America v. Majid Shoukat Khan; and United States of America v. Ahmed  Mohammed Ahmed Haza al Darbi (2).

To address our first objective, we reviewed relevant guidance, policies,  and regulations related to public access to military commissions’  proceedings. In addition, we attended military commissions’ proceedings  on NSGB and while visiting relevant facilities, in April and May 2018. To  supplement our observations, we interviewed relevant DOD officials to  discuss how DOD facilitates public access to commissions’ proceedings.  We also observed hearings at the Fort Meade, Maryland Closed Circuit  Television (CCTV) site, visited the Naval Station Norfolk, Virginia CCTV  site, and interviewed DOD officials working at both locations to  understand and observe how the public utilizes these facilities to view  commission s’ proceedings remotely. Further, we reviewed relevant  documentation on DOD’s assistance to victims and family members and  discussed these efforts with department officials. Also, we reviewed a  variety of content on the Office of Military Commission’s (OMC) website to  determine what information is available to the public about access to  military commissions’ proceedings and how it is organized.

For our second objective, we reviewed applicable sections of the United  States Constitution, U.S. statute, and relevant case studies of terrorism  trials in federal court (case studies), executive orders, DOD guidance and  policy, and relevant reports to understand the legal and policy issues  related to public access to both military commissions’ proceedings and  certain terrorism trials conducted in federal court. In addition, we  gathered information from DOD officials, victims and family members, and  non-government stakeholders to identify whether there are any  challenges that DOD faces in facilitating public access. Specifically, we  conducted a non-generalizable survey of victims and their family  members to determine the extent to which respondents support various  potential options for expanding public access and their views on the  timeliness of court document postings to OMC’s website. Of the 2,640  victims and family members that we surveyed, 248 responded. We  anticipated a fairly low response rate because of sensitivities related to  surveying victims and family members about terrorist events. Therefore  the survey results reflect the views of only those who responded, who  provided relevant and important views, which we combined with  information gathered through additional methodologies. Also, we informed  our methodology approach and survey development through interviews and other communications with representatives from eight victim’s  organizations. Further details regarding the survey methods are  described in appendix II.

As discussed previously, for the purposes of this report, we defined  victims as those who were directly affected by the attack on the USS  Cole, the events of 9/11, or other terrorist attacks associated with  commissions’ cases in the scope of our review. We defined a family  member as a person who is related to a victim. Similarly, we developed a  standardized set of 10 questions that was used to obtain the perspectives  of 55 selected non-government stakeholders on challenges to public  access to military commissions’ proceedings. We analyzed responses  from the completed questionnaires to determine the extent to which  respondents support various potential options for expanding public  access as well as their views on other issues, such as the timeliness with  which court documents are posted to OMC’s website. Our analyses of  both groups’ responses were incorporated into each objective to  supplement our observations, as appropriate.

Also, we gathered data from an inter-agency review team that reviews  documents to be posted on OMC’s website, as well as the website itself,  and analyzed these data to determine the timeliness of information  posted to the website. In regard to data from the inter-agency review  team, we obtained and analyzed data on when court documents were  filed with OMC and the date on which the inter-agency review team  returned them to OMC for posting, comparing that amount of time to a  timeliness standard laid out in DOD’s Regulation for Trial by Military  Commission (Regulation). According to the Regulation, DOD is  supposed to post documents to the OMC website generally no later than  15 business days after documents have been filed with OMC’s Trial  Judiciary, known as the “file date.” We performed reliability assessments  on the data obtained from the inter-agency review team on the posting of  court documents on the commissions’ website. When, in the course of  these discussions, we determined that agencies’ data could be improved,  we worked with the appropriate agency to do so—to the extent possible—and note relevant data limitations. Based on the steps we took, we  determined that these data were sufficiently reliable for the purposes of  our research objective. Please see appendix I for more details about our  scope and methodology.

In regard to data from OMC’s website, we collected this information using  a “web-scraping tool” that we developed and that regularly visited OMC’s  website, capturing data about court documents’ file date and the date on  which these documents were posted on OMC’s website. We selected  these two dates because it allowed us to compare the time DOD took to  post court documents to its website with the department’s timeliness  standard. Using our analysis of data obtained from the inter-agency  review team as well as from OMC’s website, we determined the extent to  which DOD posted court documents in a timely manner.

For our third objective, we reviewed relevant reports to identify potential  options for expanding public access to commissions’ proceedings and  any concerns associated with doing so, and discussed these issues with  DOD officials, victims and family members, and non-government  stakeholders. We also met with DOD officials to discuss any efforts the  department had underway to determine the tradeoffs associated with  potential options. We then compared these efforts with Standards for  Internal Control in the Federal Government, which state an agency should  identify and analyze risks related to achieving its defined objectives, and  to leading practices for sound strategic management planning. We also  compared these DOD efforts to selected principles of effective federal  strategic planning that state, among other things, that it is good practice  for agencies to develop a strategy to address management challenges  and to identify resources needed to achieve goals. We used the results of  our comparison to determine the extent to which DOD’s efforts adhered to  these principles.

We conducted this performance audit from January 2018 to February  2019 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.

DOD describes military commissions as a form of military tribunal  convened to try individuals for unlawful conduct associated with war.  According to DOD, military commissions—as they came to be known in  the 19th century—were preceded by military tribunals during previous  conflicts, beginning from the Revolutionary War. After the September 11,  2001 terrorist attacks on the United States, the President issued an  order, directing the Secretary of Defense to establish commissions to try  certain individuals for violations of the laws of war and other offenses. In  2006, the United States Supreme Court invalidated the military  commissions established under the President’s order. In response to  the court’s ruling, Congress passed the Military Commissions Act of  2006. In 2009, the President ordered a review of military commissions  and detention at NSGB which led to a halt in all pending military  commissions’ proceedings. In 2009, Congress passed the Military  Commissions Act of 2009 which replaced the Military Commissions Act of  2006 and led to the reinstatement of criminal proceedings against certain  detainees. Held on NSGB, Cuba, current commissions’ proceedings  include alleged terrorists accused of engaging in attacks against the  United States, such as the USS Cole attack in which 17 people were  killed and the September 11, 2001 attack in which 2,976 people were  killed.

The Military Commissions Act of 2009 establishes procedures governing  the use of military commissions to try alien unprivileged enemy  belligerents engaged in hostilities against the United States for violations  of the law of war and other offenses triable by military commission. The  Act defines an alien unprivileged enemy belligerent as a person who has  engaged in hostilities against the United States or its coalition partners;  has purposefully and materially supported hostilities against the United  States or its coalition partners; or was a part of al Qaeda at the time of the  alleged offense.

While the Military Commissions Act of 2009 also provides protections for  the accused individuals undergoing trial (the accused) similar to rights  afforded to defendants in a federal criminal trial, the Act is more closely  aligned with military court-martial practice. For example, the Act states  that procedures for military commissions are based upon the procedures  for trial by general courts-martial under the Uniform Code of Military  Justice, Chapter 47 of the U.S. Code, except for certain provisions such  as provisions related to speedy trial and pretrial investigations.

Article 36 of the Uniform Code of Military Justice states that the President  may prescribe regulations for pretrial, trial and post-trial procedures for  cases triable in courts-martial and military commissions which shall, so far  as the President considers practicable, apply the principles of law and the  rules of evidence generally recognized in the trial of criminal cases in the  United States district court but which may not be contrary to other  provisions of the Uniform Code of Military Justice. Article 36 also states  that all rules and regulations prescribed by the President or the Secretary  of Defense as his designee shall be uniform insofar as practicable. In  addition to relevant law, commissions’ proceedings are conducted in  accordance with certain DOD manuals and regulations and rulings by  military judges who preside over the proceedings.

Roles and Responsibilities within DOD for Military Commissions

There are a number of DOD organizations responsible for conducting the  commissions’ proceedings included in the scope of our review. Each has  separate functions and responsibilities, as shown in figure 1.

The Convening Authority is responsible for the overall management of  the commissions’ process and is empowered to convene the  commissions, refer charges to trial, negotiate pre-trial agreements,  review records of trial, and maintain the public website, among other  responsibilities.

The Office of the Chief Prosecutor includes attorneys, paralegals, and  support staff from each branch of the United States Armed Forces,  DOD, and attorneys from the Department of Justice. These attorneys  coordinate investigative efforts, prepare charges, and represent the  United States government in commissions’ proceedings. Located in  the Office of the Chief Prosecutor, DOD’s Victim and Witness  Assistance Program provides services to approximately 2,000 victims  and their family members.

The Military Commissions Defense Organization maintains a structure  separate from the structure of OMC, to help ensure fairness and  independence of the commissions’ legal system. Defense attorneys  representing the accused can be military and/or civilian, either  employed by DOD and/or a civilian attorney retained by the accused  at their own expense. These attorneys are appointed by the Chief  Defense Counsel to represent the accused. In capital cases, i.e. those  cases in which the United States government is seeking the death  penalty for the accused, the Military Commissions’ Defense  Organization will also appoint a “learned counsel”—that is, an attorney  with specialized training and experience in trials involving the death  penalty.

The Military Commissions’ Trial Judiciary consists of military judges  nominated by the Judge Advocate Generals of the military  departments to preside over trials. The Trial Judiciary also includes  the judges’ support staff that, among other responsibilities, manages  court documents—such as legal motions and judges’ rulings—that are  part of the commissions’ process. According to OMC officials, the Trial  Judiciary has also established certain practices—followed by OMC— for the review of these documents before they are posted on OMC’s  public website.

The Expeditionary Legal Complex at NSGB was completed in January  2008 and consists of various facilities, including a courtroom in which  classified and unclassified proceedings may be conducted, office space  and equipment for court administration employees as well as the  prosecution and defense legal teams, and expeditionary lodging capable  of housing up to 300 personnel, according to an OMC official. Key  elements of this complex are highlighted below.

The courtroom, shown in figure 2, is a multi-defendant courtroom capable  of trying up to six defendants jointly. The courtroom can accommodate a  case with the possibility of the death penalty, and has unique features  that permit the use of highly-classified information at the Top  Secret/Sensitive Compartmented Information level or below during closed  proceedings.

The courtroom within the Expeditionary Legal Complex has a viewing  gallery (gallery), as shown in figure 3, where selected members of the  public may view commissions’ proceedings, through soundproof glass.  This is because the gallery was designed to permit public viewing of the  proceedings even in the event that classified information is inadvertently  disclosed. Specifically, according a DOD official, the gallery has video  display monitors that play a closed-circuit television feed of the  proceedings, on a 40-second delay between live action in the courtroom  and the video transmitted to the gallery. This system provides United  States government officials with time to prevent any inadvertent  disclosure of classified information from being disseminated to the public.  If victims or family members are present in the gallery, they enter last and  are seated nearest to the exit. A curtain is available to separate the  victims and family members from other members of the public, if they  desire privacy.

Commissions’ proceedings that are open to the public are transmitted by  closed-circuit television to the media operations center located outside of,  but nearby, the Expeditionary Legal Complex courtroom. The media  operations center, shown in figure 4, also includes telephone and  computer support, which enables up to 60 members of the media to  simultaneously watch the proceedings, with the 40-second delay to  prevent the inadvertent disclosure of classified information, while they  work. The center also has a room for conducting press briefings.

DOD Uses a Variety of Methods to Facilitate Public Access to Commissions’ Proceedings

DOD has taken various steps to facilitate public access to commissions’  proceedings, using four primary methods to do so. Rule 806 of DOD’s  Manual for Military Commissions specifies that, except in certain  instances, such as to protect national security, that military commissions  shall be publicly held. In accordance with this guidance, DOD facilitates  public access to commissions’ proceedings by (1) communicating directly  with victims and their family members about the status of scheduled  hearings and other administrative matters; (2) enabling selected members  of the public to view proceedings in-person at NSGB; (3) providing CCTV  sites within the United States for viewing proceedings remotely; and (4)  making information, such as court documents that will be used during  proceedings, available to the public on the commissions’ website. In  figure 5, we summarize key DOD efforts to facilitate public access to  commissions’ proceedings, followed by a description of each method.

Direct Communication With Victims and Their Family Members

According to officials, DOD established its Victim and Witness Assistance  Program in June 2004 to provide support services to the approximately  2,000 victims and their family members who opted to participate in the  program. The program, which falls within the Office of the Chief  Prosecutor, provides updates to victims and their family members on  pending military commission cases, notifies them of scheduled hearings,  and assists with the logistics associated with viewing proceedings at  NSGB or a CCTV site. In our survey of victims and family members, we  asked about their perspectives on communication originating from the  prosecution team and found that a majority of those who responded (72  percent) were satisfied or very satisfied with DOD’s efforts.

In-person Viewing of Proceedings at NSGB

Due to space limitations, DOD is currently able to allot 52 seats for  selected members of the public to view “open” commissions’ proceedings  in-person from the courtroom gallery on NSGB. DOD is responsible for  selecting these individuals who generally fall into three categories:          (1) victims and their family members, (2) non-government stakeholders,  and (3) the general public. DOD provides air transportation to and from  NSGB for all individuals approved to view the proceedings in-person.  Further details about DOD’s selection process and seating allocation, by  category, are provided below.

Victims and their family members: Per DOD policy, up to 5 victims  or their family members and the person accompanying them to  provide support are allotted seating in the courtroom gallery. There  are also seats reserved for a grief counselor and an escort from the  Victim and Witness Assistance Program for a total of 12 seats. Due  to the limited number of total seats and lodging currently available,  DOD asks the approximately 1,140 victims and family members who  have expressed an interest in attending proceedings to identify the  proceedings they would prefer to attend. DOD then uses these  preferences to select victims and family members to travel to NSGB  for each week that proceedings are held. According to DOD officials,  this procedure works better than the lottery system that the Victim and  Witness Assistance Program previously used because it provides  victims and their family members more flexibility with their travel  dates.

Non-government stakeholders: This category includes individuals  who represent 25 non-governmental organizations pre-approved by  DOD to view proceedings in-person, as well as members of the  media. DOD currently allots 12 seats in the courtroom gallery to  representatives of approved non-governmental and civic  organizations and 10 seats to the media. All individuals within this  category who are approved for travel to NSGB are required to sign a  list of “ground rules” developed by DOD and to be escorted by military  personnel while on the base.

General public: The remaining 18 seats are filled on a “first come,  first served” basis by members of the public who live on NSGB or who  have been cleared by the Navy to visit the base.

Remote Viewing of Proceedings at CCTV Sites

In 2012, DOD established five CCTV sites on the East Coast of the  United States where individuals may view commissions’ proceedings  remotely. Specifically, four CCTV sites are reserved for victims and their  family members, and are located at Fort Hamilton, New York; Fort Devens, Massachusetts; Joint Base Dix/McGuire/Lakehurst, New Jersey;  and Naval Station Norfolk, Virginia. The fifth CCTV site is located at Fort  Meade, Maryland, and is open to victims and their family members, non- government stakeholders, and the general public. According to officials,  at these sites, large video display monitors display the same video feed  that appears on monitors in the viewing gallery at NSGB, with the same  40-second delay to prevent the inadvertent disclosure of classified  information. This feed is delivered to CCTV sites by both fiber optic cable  and satellite transmission. According to court documents, these sites are  the result of DOD acknowledging both the importance of the public’s  physical access to proceedings held at NSGB and the limited ability of the  general public to do so.

According to our analysis of available data from DOD on attendance at  NSGB and the CCTV sites, there have been a total of 2,304 recorded  visitors, beginning in 2011. It is important to note that DOD did not record  the number of visitors from the general public at NSGB until  approximately September 2018. Also, according to officials, DOD did not  begin recording visitors from the general public at the Fort Meade CCTV  site until September 2018, and did not record data on non-government  stakeholder visitors to the Fort Meade CCTV site from 2012 to 2015.  However, our review of available data indicates that of the recorded  visitors, the majority—64 percent—were non-government stakeholders,  while victims and family members made up 34 percent of attendees, and  the general public made up 2 percent. Table 1 summarizes available  DOD data on attendance at NSGB and CCTV sites, from November 2011  to September 2018.

Providing Information Through the Commissions’ Public Website

According to a DOD official, DOD established the Office of Military  Commissions’ website as an online resource for the public in March 2005  to provide a variety of information about OMC’s organization, its facilities  and services on NSGB, active and inactive cases, and court documents  approved for public dissemination, among other things. Court documents  may include legal motions (motions) filed by the prosecution and defense,  docket-related documents (e.g., documents that list motions to be argued  during a specific hearing), judges’ rulings on motions, and transcripts of  hearings. According to officials, DOD updated the website in 2011 and  2014, which government and non-government stakeholders told us made  it easier to use and provided additional information, thereby facilitating  public access to information about the commissions’ proceedings. In  addition, DOD officials told us the website has the only official, public  calendar of scheduled hearings.

The Public Faces a Variety of Challenges Accessing or Obtaining Information on Commissions’ Proceedings Public Access Challenges Created by Factors Outside DOD’s Control

The public faces a number of challenges in gaining access to  commissions’ proceedings or obtaining information about them. These  challenges can be categorized into two groups: (1) those that DOD has  limited ability to address, and (2) those that DOD has greater ability to  address.

During our review, we identified several aspects of commissions’  proceedings that constrain the extent of public access that DOD is able to  provide. Specifically, DOD has limited ability to address these challenges  because they result, in part, from factors that are not under the  department’s control. As confirmed by DOD officials, these challenges are  (1) the location of proceedings, (2) the prevalence of classified  information associated with them, and (3) the duration of time awaiting  trial—each of which are discussed in more detail below.

Public Access Challenges Created by Factors Within DOD’s Control

We also identified other public access challenges that DOD has a greater  ability to address because the challenges result largely from factors under  DOD’s control. As confirmed by DOD officials, these challenges to public  access of military commissions’ proceedings involve limitations related to  in-person viewing of proceedings at NSGB, remote viewing of  proceedings, and the timeliness with which key information is posted on  the commissions’ website.

In-Person Viewing of Commissions’ Proceedings at NSGB

DOD policy and processes, the size of the gallery DOD built, and the  limited logistical support DOD provides to non-government stakeholders  substantially constrain the public’s ability to view commissions’  proceedings at NSGB. As discussed previously, DOD policy and the size  of the courtroom gallery on NSGB currently limit in-person attendance to  a total of 52 seats for each week of hearings—12 of which are reserved  for victims or their family members, as well as the support people and  DOD escorts accompanying them. The relatively limited number of seats  means that—in the 10 years since victims and their family members were  permitted to travel to NSGB—according to a DOD official, fewer than half  have been selected to do so. According to our review of DOD data on  total attendance at NSGB since 2011, victims and family members  comprise 21 percent of attendees.

The limited weekly attendance for all visitors to commissions’ proceedings  is in contrast to United States district court that conducts federal criminal  trials and can generally accommodate a new set of attendees each day, if  those attendees are in the local area or can travel to the court house.  However, as discussed previously, DOD provides air transportation to  and from NSGB, the department must approve all individuals who fly to  NSGB to view the proceedings in-person, and the seats available to the  general public in the gallery are filled on a “first come, first served” basis  by members of the public who live on NSGB or who have been cleared by  the Navy to visit the base. These constraints do not exist at federal  courthouses. Thus, the portion of the general public that can attend  commissions’ proceedings is substantially smaller than the portion of the  public that can attend federal criminal trials.

In addition, according to non-government stakeholders, DOD provides  limited logistical support for their work at NSGB, which constrains their  ability to provide the public with access to information about the  commissions’ proceedings. Based on discussions with non-government  stakeholders, the logistics of traveling to NSGB and the inherent  limitations of working in a challenging environment made it difficult for  some of these non-government stakeholders to be able to view  proceedings in-person with the frequency that they believe is needed. For  example, one national security policy expert told us that they “cannot  afford the time required to attend another hearing.” This is because  “…hearings are frequently cancelled or closed to the public,” and as a  result, attendees “…typically spend at least a week there to see maybe  two days of hearings.” We also spoke with a legal expert who explained  that the lack of reliable internet and phone service while on NSGB  presented challenges in maintaining contact with the individual’s law  practice, thus limiting their ability to travel to NSGB and view proceedings  in-person. Similarly, a member of the media told us that the conditions of  reporting the commissions’ proceedings are “an extreme hindrance.” This  member of the media noted that while at NSGB, visitors have access to  limited and unreliable internet and telephone service. This has made  covering the trials “extremely difficult,” according to the freelance  journalist because the cost, lack of resources and unreliable schedule  make it increasingly difficult to take a week away from reporting on other  events “in order to cover only a couple of days of open hearings.”

For many of the non-government stakeholders included in our review,  their role as observers, scholars, or reporters on the commissions’  proceedings is not their full-time job. Instead, they do so as one part of  their professional responsibilities or as volunteers. In this context, they  told us generally that the time required to travel to NSGB due to  infrequent flights, the difficulty of working there, and the frequent closings  or cancellations of hearings discourage non-government oversight and  reporting on the proceedings. This, in turn, reduces the amount and  quality of the information that they can provide to the public.

Also, while selected victims and family members and non-government  stakeholders are able to view proceedings in-person on NSGB, the vast  majority of the general public cannot, due to DOD policy. The exceptions  are—according to a DOD official—civilians traveling to NSGB on official  business and those who have a sponsor living at NSGB.

Remote Viewing of Commissions’ Proceedings

DOD’s decision to locate all CCTV sites on military bases on the East  Coast of the United States has resulted in several challenges that limit the  current usefulness of CCTV sites in facilitating public access to  commissions’ proceedings. First, all five CCTV sites are concentrated  within a 600 mile span on the East Coast of the United States. However,  victims and their family members—the primary intended users of these  sites—are located throughout the world or are concentrated in areas of  the United States that are a significant distance from one of these five  locations. According to our survey of victims and their family members, a  majority of those who responded (71 percent) said that it was important to  have the location of the hearings close to where they live. For example,  the victim and family member population served by DOD’s Victim and  Witness Assistance Program has a significant presence in California and  Florida, as well as smaller populations in eight other countries. Further,  survey respondents from Texas, Florida, and the United Kingdom noted  that it was impractical for them to travel to the current CCTV sites,  especially considering the unpredictable hearing schedule. Figure 7  shows the location of the CCTV sites along with the dispersion of victims  and their family members served by DOD’s Victim and Witness  Assistance Program.

The logistics of traveling to the CCTV site at Fort Meade, Maryland—the  only location open to non-government stakeholders and the general  public—is also a factor that limits the public’s access to information about  commissions’ proceedings. For example, non-government stakeholders  who observe the commissions’ proceedings and were included in our  review explained that the majority of their organizations are located in  cities that either do not have a CCTV site, or are not near a site to which  they have access. Examples include Los Angeles, California, and New  York City, New York. Non-government stakeholders also expressed that  there are challenges associated with the amount of time and travel it  takes to get to Fort Meade, which can be difficult especially when  hearings are often cancelled or closed with little or no notification,  according to these stakeholders. Further, although the CCTV site at Fort  Meade is open to the general public, DOD officials acknowledged that  there is no practical way for the department to advertise the availability of  the opportunity to view proceedings at the CCTV site on Fort Meade.

In addition to the challenges of traveling to CCTV sites, some victims and  family members and non-governmental stakeholders noted challenges  regarding their ability to access military bases that host these sites. For  example, some victims and family members told us that they or their  relatives had been denied access to certain CCTV sites because,  according to DOD, they did not meet the department’s definition of a  victim or family member. Further, non-government stakeholders who are  foreign nationals are required to be escorted while on Fort Meade, per  DOD policy. However, DOD officials told us that Fort Meade does not  always have the personnel necessary to escort these individuals, which  could preclude certain non-government stakeholders from being able to  access the site. Further, a senior DOD official acknowledged that by  locating CCTV sites on military bases, DOD is running the risk that—in  certain scenarios—no member of the public would be able to access the  sites. This is because, in the event of a threat to base security, it may be  closed to civilians who do not live or work on the installation.

Timeliness of Information Posted to the Commissions’ Website

As discussed previously, OMC’s website is a key enabler of public access  to information about commissions’ proceedings because it provides the  public with a way to retrieve unclassified court documents related to the  commissions’ proceedings, such as legal motions and transcripts, and a  schedule of the proceedings’ hearings. According to DOD’s Regulation for  Trial by Military Commission (Regulation), court documents are provided  by OMC to an inter-agency review team, which examines them and  removes any classified or protected information that is identified. Once  this examination is completed, the inter-agency review team returns the  document to OMC to be posted to its website. DOD’s Regulation’s sets  a timeliness standard for reviewing and posting court documents—noting  that the entire process generally should take no longer than 15 business  days. However, based on our analysis of available data, we determined  that DOD has generally not met this standard for the timely posting of  documents, which substantially limits public access to information about  proceedings.

Specifically, we obtained and analyzed data on when court documents  were filed with OMC and the date on which the inter-agency review team  returned them to OMC for posting and found that from October 2011 to  October 2018, DOD frequently missed the timeliness standard laid out in  its Regulation. For example, since 2011, we found that 8 percent of court  documents reviewed by the inter-agency review team were returned to  OMC after the 15 business day standard. Further, we found that—since  2015—DOD missed its timeliness standard with greater frequency. For  example, approximately 7 percent of documents reviewed in 2015 were  returned to OMC after the 15 business day standard whereas in 2018,  more than 50 percent of the documents submitted for review missed the  timeliness standard. Our analysis of data from the inter-agency review  team is summarized in table 2.

In addition to the data provided by the inter-agency review team, we  independently collected and analyzed data from the commissions’  website on the filing and posting dates for more than 11,000 court  documents filed between June 19 and November 19, 2018. Our  analyses of these data further demonstrate DOD’s challenges with timely  posting of court documents. For only one category of court documents— unofficial, unauthenticated transcripts from open hearings—our analysis  of data collected from the website from June to November 2018 show that  these transcripts were posted in a timely manner. For the remainder, over  a five month period, nearly 1,300 court documents either remained  unposted or were posted to OMC’s website after the 15 day business  standard. Furthermore, the total for the median number of business  days these documents were filed after the 15 business day standard  ranged from 90-103.5 days—that is, from almost four months to more  than five months past DOD’s timeliness standard. Table 3 summarizes  our analysis for the five cases in the scope of our review.

We reviewed relevant case studies in federal criminal proceedings  involving both terrorism charges and certain matters related to  commissions’ cases, and identified instances in which federal judges  adopted processes for review and release of classified documents that  are similar to processes specified in DOD’s regulation. However, we also  identified differences, such as shorter timeframes in the federal court  systems for the government’s review and public release of documents  with the potential for classified information. For example, in one case,  court security experts had 48 hours—and in another, 72 hours—to  complete this process.

According to various non-government stakeholders, DOD’s inability to  post court documents in a timely manner has negatively impacted their  ability to perform their role in facilitating public access to information  about commissions’ proceedings. For example, according to our analysis,  DOD posted legal motions filed by the prosecution and defense teams a  median of 97 business days past DOD’s timeliness standard; military  judges’ rulings were posted a median of 69 days past DOD’s timeliness  standard. One member of the media explained that DOD’s delayed  posting of court documents limits their access to information needed to  justify travel to NSGB. They further explained that not being able to travel  to NSGB impedes their ability to conduct interviews and research about  the proceedings, which are needed to inform the general public. Similarly,  other stakeholders told us that they believe the delays in posting docket- related documents have made it difficult for them to assess the  proceedings and communicate their assessments to the public. According  to our analysis, DOD posted these documents a median of 99 business  days past DOD’s timeliness standard. Further, for hearings held between  June 19, 2018 and November 19, 2018, we found that of the 74 docket- related documents filed with the court, three were posted in advance of  the hearing.

We also found that the hearing schedule posted on the commissions’  website—the only official, publicly-accessible schedule of proceedings,  according to DOD officials—frequently is not updated in a timely manner  to reflect schedule changes. According to DOD officials, this is because  information on schedule changes is often not provided to the webmaster  for timely updates, as the inter-agency review team is examining it; much  like the inter-agency review team does with court documents. As a result,  several non-governmental stakeholders told us that it is difficult to justify  the time and costs of traveling to Fort Meade, Maryland—the only CCTV  site open to them—given the risk of arriving only to learn that the  scheduled hearing has been canceled or closed to the public. We  observed the effect of these cancellations on public access firsthand  during our review. For example, we attempted to attend hearings at Fort  Meade on various occasions. On several of those occasions, the hearing  was canceled. While we learned this information directly from our DOD  contact, none of these changes were reflected on the website’s schedule.  Also, when we asked for updates on scheduled hearings, multiple DOD  officials told us that we should not bother checking the website’s hearing  schedule. Instead, they recommended that we check the Twitter feed of a  certain reporter who spends a lot of time at NSGB and routinely provides  updates on hearings. In addition, according to DOD officials, victims and  family members who attempt to access the website from certain locations  outside of the United States are sometimes unable to do so. OMC  officials are aware of this issue and an OMC information technology  expert told us that while OMC has tried to fix this issue several times, it is  based on security for the website. In addition, according to DOD officials,  victims and family members who attempt to access the website from  certain locations outside of the United States are sometimes unable to do  so. OMC officials are aware of this issue and an OMC information  technology expert told us that while OMC has tried to fix this issue several  times, restricting access from certain locations outside of the United  States is based on security for the website.

DOD officials acknowledged that they are regularly not meeting their  timeliness standard for posting court documents to OMC’s website— something that they largely attribute to the volume of documents  submitted and the government-wide security classification review process  to which they are subjected. Specifically, in this process for the military  commissions’ proceedings, there are two DOD and two non-DOD  intelligence agencies with the chief responsibility for conducting the  security classification review of court documents filed for commissions’  proceedings. The Defense Intelligence Agency (DIA) is responsible for  coordinating the process and all four agencies may be required to review  a document depending on the type of information it contains.

In accordance with DOD’s Regulation and the interests of national  security, a review of certain documents submitted must be conducted to  confirm that such filings are in publicly releasable form. Due to the  multiple levels of review and depending on the amount and complexity of  classified information involved, intelligence agency officials told us that— in the course of the inter-agency review team’s efforts—it can take  anywhere from one day to several weeks to review a single document.  These officials also told us that it is very difficult to hire personnel with the  requisite expertise and experience to serve as reviewers, given that  classified information that may be in these documents can be complex,  esoteric, and decades old. Thus, it is unlikely that a significant number of  new reviewers could be hired to help expedite the review team’s  processes. According to our review of available information from  intelligence agency officials, the agencies have a relatively small number  of personnel reviewing large numbers of documents.

Further, those personnel responsible for reviewing OMC-related  documents spend only a portion of their time reviewing court documents  for the purpose of posting them on the commissions’ website. This is  because inter-agency review team personnel are also responsible for  reviewing documents not released on the commissions’ website.  According to a senior official from the review team, it has been tasked  with competing requests for document reviews that have impacted the  team’s ability to review court documents for posting on OMC’s website.  For example, the official explained that—from May 2017 to February  2018—the review team completed seven of these large-scale, time- sensitive tasks, involving about 31,400 pages of document review,  according to the official’s estimate.

Table 4 summarizes available information about the agencies’ review of  court documents to be posted on the website.

Based on our discussions with officials from DOD and the inter-agency  review team, factors such as—the complexity of documents, relative  scarcity of qualified reviewers, and other document review tasks  unrelated to web posting—are somewhat out of DOD’s control. For  example, a senior official from the inter-agency review team explained,  the complexity of court documents is the responsibility of the prosecution  and defense teams that write them; the other document review tasks are  often driven by the schedule of individual cases or military judges’ rulings.  However, there is a key factor driving the timeliness challenge that may  be in the department’s control. According to our discussions with DOD  officials, they attributed document posting delays to a policy decision by  the department to subject the extremely large volume of court documents  filed—including schedule changes—to the same type of security review.

A Number of Options Exist to Potentially Address Public Access Challenges, However Each Option Has Tradeoffs That Have Not Been Assessed by DOD

Options Exist to Address Challenges That Are Well Supported by Victims, Their Family Members, and Non-Government Stakeholders

Through our review of agency documentation and discussions with DOD  officials, victims and family members, and non-government stakeholders,  we identified a variety of potential options for expanding access to  commissions’ proceedings. We have organized these options into three  categories, as shown in table 5.

The majority of both victims and family members who responded to our  survey and non-government stakeholders who responded to our  questionnaire support most potential options for expansion of public  access. Specifically, the majority of victims and family members who  responded to our survey supported six of the seven potential options  about which we asked. The majority of non-government stakeholders  supported seven of the ten potential options. There was general  agreement between these two groups on the potential options they  supported. This information is summarized in figures 8 and 9.

Options exist that may potentially help DOD address the challenges the  public faces attending hearings at NSGB. Specifically, a physical  expansion of the courtroom viewing gallery that increases the number of  seats open to the public, along with a change in DOD policy to allow more  visitors, would enable NSGB to accommodate more people wishing to  view proceedings in-person. An OMC official responsible for management  of the office’s infrastructure at NSGB acknowledged that an expansion of  the NSGB gallery and the number of the people it can accommodate is  theoretically possible, potentially in the context of an ongoing project to  renovate the complex of buildings that contains the courtroom, gallery,  and other facilities that support the commissions’ proceedings.

DOD officials expressed a number of concerns with this option. First, an  OMC official cautioned that expanding the gallery’s capacity would likely  increase the cost of the current $14 million expansion project, though the  official was unable to estimate by how much. Second, an increase in the  number of visitors would require a commensurate increase in logistical  support—for example, more lodging and utilities—which an OMC official  said may not be supported by the current level of resources. Third,  according to an OMC official, an expansion of the gallery would require it  to be temporarily closed, thus delaying commissions’ proceedings. This is  because, the official explained, the current courtroom is the only venue at  NSGB that can accommodate a multi-defendant trial and any highly  classified evidence required for the proceedings. Further, according to a  senior DOD official, renovation of the gallery will require it to be re- accredited before DOD could resume discussing highly classified  evidence in the adjoining court room. This could result in a substantial  increase in both the period of time in which the gallery and court room are  unavailable, as well as the cost of a renovation.

In our review of DOD documents and discussions with department  officials, we learned that there may be ways to address some of these  concerns. For example, DOD is planning to accommodate at least some  additional visitors to NSGB. According to OMC documentation, it is  planning to support about 350 total attendees per week of hearings during  the trial phase of Khalid Shaikh Mohammad et al (2). This is an increase of about 260 percent, compared to the average total number of visitors for  a week of pre-trial hearings in this case.

Based on our review of relevant court documents and discussions with  DOD officials and stakeholders, we identified two broad categories of  potential options that may help DOD address the public access  challenges associated with CCTV sites: (1) adding or changing the  locations of CCTV sites and (2) broadcasting video from NSGB using  other technologies, such as the internet.

CCTV sites: Additional CCTV sites—that are more evenly distributed  across the country—could potentially be established for the general public  or for use solely by victims and their family members. DOD officials  acknowledged that most military bases have the requisite technology and  physical infrastructure to host a CCTV site and that expanding the  number of CCTV sites would require a relatively small outlay of  resources. Further, they also acknowledged that there may be  opportunities to establish CCTV sites at locations other than military  bases, such as federal courthouses, which may help address the public  access challenges posed by bases’ security procedures, such as foreign  nationals’ difficulty when serving as observers or reporters.

DOD officials noted however, that expanding CCTV sites would require  approval by the Secretary of Defense or a military judge, because— according to DOD’s Manual for Military Commissions—the broadcasting  of proceedings in the court room, to include video and audio recording or  television broadcasting, shall not be permitted. The military judge,  however, may permit contemporaneous closed-circuit video or audio  transmission. For example, the prosecution requested this permission in  2012 and the military judge authorized the transmission of all open  proceedings, by CCTV, to several sites. Similarly, based on our review  of relevant selected case studies of terrorism trials in U.S. federal court,  there are previous examples of federal terrorism trials using CCTV sites  for the benefit of the public, victims and family members. Further, DOD  officials were hesitant to support such an expansion based on their  perception that relatively few people have utilized the current CCTV sites,  but they were unable to provide complete or fully accurate and reliable  data on attendance of certain groups, such as the media and general  public. In addition, according to DOD officials, the demand for public  access during the current cases’ decade-long pre-trial phase likely does  not represent the magnitude of future public interest, which DOD officials  believe will increase significantly once the trial phase begins.

Television and internet broadcast: Broadcasting video of hearings via  other technologies, such as the television or internet would increase  opportunities for the general public to view commissions’ proceedings  remotely. An OMC information technology expert told us that it would be  relatively simple and inexpensive to transmit the existing video feed from  the proceedings on NSGB to either television stations, such as C-SPAN,  or through the internet using the same cyber security protocols used for  CCTV sites. Further, internet broadcasts could either be password- protected so that they could be viewed only by a specific group, such as  victims and family members, or they could be made available to the  general public.

This option raised mixed views from the experts and officials we  interviewed. According to Rule 806(c) of the Manual for Military  Commissions, television or internet broadcasting would require express  authorization by the Secretary of Defense—and as previously noted—this  rule is consistent with federal criminal practice which prohibits the  broadcasting of judicial proceedings from the courtroom. Legal experts  who we contacted had varying perspectives on this issue. For example,  officials from the Office of the Chief Prosecutor had concerns that parallel  those of the Judicial Conference of the United States—the national policy- making body for the federal courts—on the negative impact of cameras in  the courtroom on jurors and witnesses, among other reasons.  Specifically, the Judicial Conference cited concerns such as publicity that  could threaten jurors’ privacy and witnesses that could be by subjected to  distractions, intrusions or influences. In contrast, a senior official in the  Military Commissions’ Defense Organizations generally supported  television and internet broadcasting of proceedings. This perspective was  shared by the American Bar Association, which stated that it would  support adoption of such an initiative in the future to protect the integrity  of the military commissions’ process and better educate the public about  these proceedings.

Also, in our discussions with DOD officials, they too expressed mixed  perspectives regarding internet or television broadcast of proceedings  from NSGB. On one hand, according to an OMC information technology  expert, broadcasting is technologically possible and could use certain  existing security procedures. Specifically, because safeguarding  classified information is critical, any television or internet broadcast of  proceedings would use the same video feed currently transmitted to the  NSGB gallery and CCTV sites, and thus would use the same safeguards  provided by the 40-second delay previously discussed. Further, DOD  information technology experts suggested that using a limited internet  broadcast, it could be possible for DOD to create temporary viewing sites  almost anywhere they are needed; for instance, in a hotel conference  room. On the other hand, senior DOD officials expressed several  concerns regarding the security implications of broadcasting video  outside of the current CCTV framework. For example, they highlighted the  potential for adversaries of the United States to copy and alter the video  feed from an unsecured broadcast—thus creating a new and inaccurate  record of proceedings that could be used as propaganda. Further, while  internet broadcasts could be password-protected for victims and their family members only, DOD officials were concerned that the size of the  group may make it more likely that the password would be shared with  people outside of the group.

In regard to these concerns, DOD’s technology experts suggested that  they could potentially be addressed, at least in part, by using security  procedures already in place at the NSGB gallery and CCTV sites.  Specifically, at the temporary viewing sites they proposed, DOD officials  would not allow recording of the video feed, following the rules currently in  place at NSGB and CCTV sites. However, regarding this proposal, senior  DOD officials conveyed force protection concerns for government  personnel and any attendees. For example, an official noted that there  have been investigations into allegations that OMC personnel have been  surveilled by unknown persons, both in the United States and overseas,  when on official travel. Also, in a relatively unsecure civilian location like a  hotel, DOD would not be able to enforce the rules of the commissions.  For instance, according to this official, if someone wanted to attend a  temporary viewing site but refused to relinquish their electronic recording  devices, per rules currently in place at NSGB and CCTV sites, DOD’s  only recourse would be to call local law enforcement authorities.

Timeliness of Posting Information to the Commissions’ Website

DOD’s Regulation suggests two possible approaches the department can  take when reviewing court documents, prior to posting on the website,  and one of these could help the department post court documents in a  timelier manner. The first approach would allow for an OMC security  classification expert to independently determine whether a court  document may contain classified information. If it is determined that the  document does not contain classified information, the document is to be  posted within 1 business day of it being filed. In contrast, according to  OMC officials, the second approach provided by the Regulation—and  since at least 2014—has been interpreted as directing that every  document filed must undergo a security review before it is posted to the  OMC website. As discussed previously, DOD officials told us that they  attributed the department’s document posting delays to DOD’s policy  decision to subject the extremely large volume of court documents filed,  including schedule changes, to the same type of security review. DOD’s  practice has resulted in nearly every document filed with the commission  undergoing a security review before it could be posted to the OMC  website.

However, at the end of our review, a military judge’s ruling on a pre-trial  motion in the case of U.S. v. Khalid Shaikh Mohammad et al.(2) is  expected to substantially change DOD’s previous practice of submitting  every document for security review prior to posting to the OMC website.  Specifically, in December 2018, a military judge found that DOD’s  practice, based on the interpretation of the relevant provisions of the  Regulation by the previously assigned military judge and the office of the  convening authority, resulted in all pleadings—classified or not— undergoing a more laborious classification review intended for classified  (or arguably classified) filings. As a result, the military judge found that  compliance with DOD’s timeliness standard has, since at least 2017,  been the exception rather than the rule. In this ruling, the military judge  ordered that commencing on January 16, 2019, the OMC Trial Judiciary’s  Chief Clerk will instead send all filings that do not require a classification  security review directly to the OMC Webmaster for posting within one  business day of filing. Further, per the regulation, filings requiring a  classification security review will be sent to the inter-agency review team  to coordinate the classification review. Implementation of the military  judge’s ruling is expected to reduce the volume of documents submitted  for security classification review and thus may improve the timeliness of  posting information to OMC’s website.

Each Potential Option for Expanding Public Access Has Tradeoffs That DOD Has Not Yet Assessed

Current law and DOD guidance establish a framework in which DOD and  military judges are to weigh the interests of public access to commissions’  proceedings against other considerations, including national security. For  example, paralleling the statutory requirement for public access found in  the Military Commissions Act of 2009, DOD’s Regulation for Trial by  Military Commission states that its goal is to make commissions’  proceedings 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. Standards for Internal Control in the  Federal Government state that agencies should identify and analyze risks  related to achieving their defined goals. These standards also maintain  that—based on an agency’s assessment of risks—it should design  specific actions as part of their response to the risks. However, DOD has  not yet assessed the tradeoffs made by maintaining its current approach  in pursuit of its goal of maximizing public access to the extent possible  versus expanding public access by implementing other options. This is  because the department has not yet identified these options and analyzed  the risks associated with them for expanding public access.

For example, we spoke to senior DOD officials who expressed strong  support for public access to commissions’ proceedings. While they were  not necessarily opposed to the concept of expanding public access, they  did express concerns about the potential risks and challenges associated  with how it may be achieved. Specifically, according to the former Acting  Convening Authority, open and transparent commissions’ proceedings  are “very important,” adding that public access must be weighed against  the need to protect the proceedings’ large amounts of classified  information. Similarly, the current Chief Prosecutor for Military  Commissions stated that public access to commissions’ proceedings is  “hugely important” and that they are “owned by the American People,” but  also noted the importance of protecting classified information, especially  the sources and methods of the intelligence community. Further, the  current head of the Military Commissions Defense Organization, while  acknowledging the necessity of processes to protect classified  information, stated that “nothing is more important” than public access to  the proceedings, calling them “the most important cases of our lifetime.”  While these officials generally acknowledge that there are tradeoffs to be  made, for example, in facilitating public access while protecting classified  information, they have not identified how this could be accomplished or  assessed the extent of the tradeoffs associated with any potential options  for expanding public access to proceedings.

As discussed previously, there are a number of potential options for  expanding public access—well supported by victims, their family  members that we surveyed, and non-government stakeholders. However,  DOD officials have cited various tradeoffs, in the form of concerns over  resources and national security, among others. While DOD officials’  concerns may be warranted, until it fully assesses these tradeoffs by  identifying and analyzing the potential risks and challenges, it may be  missing an opportunity to expand public access. For example, DOD  officials have expressed concern with the potential cost and logistical  challenge of expanding the viewing gallery on NGSB. However, DOD  officials have not assessed such options for increasing public access to  proceedings at NSGB while weighing the risks of doing so—such as cost  or potentially delaying hearings—and not doing so—such as the current  situation, with hundreds of victims and family members who have not  been able to attend hearings.

Our prior work on leading practices for effective strategic planning has  also shown that agencies should define strategies that address  management challenges and identify resources needed to achieve their  goals. However, according to DOD officials, the department has not  developed a strategy that explains how DOD will achieve its goal of  maximizing public access to the military commissions’ proceedings in the  context of public access challenges and the expected increase in demand  for public access, once the cases’ trial phases begin. For example, DOD  officials acknowledged that there are large populations of victims and  family members who are “underserved” by the current number and  locations of CCTV sites and that they need to be expanded. Further, the  former acting convening authority noted that there would be a substantial  amount of time required to plan for additional sites. Some DOD officials  estimate that there will likely be 12-24 months advance notice before  trials are held and therefore believe that this will provide sufficient time to  develop a strategy that addresses challenges with opening additional  sites. However, based on our discussions with DOD officials, this may not  be enough time given the substantial planning and coordination that will  need to take place within and outside the department on such efforts and  the lengthy lead time typically needed to secure additional resources  through DOD’s budget process.

For example, DOD officials told us that they do not have many facilities  anymore in urban communities, which necessitates that they have  partners in these areas to facilitate additional CCTV sites. DOD officials  said that they have tried working with government officials in New York  City—a city with a high concentration of victims and family members—to  identify ways to expand options for remote viewing of proceedings.  However, DOD officials said that the coordination has been challenging,  given management challenges—such as finding adequate space that is  accessible for victims, family members, and the media—and required  resources—such as reimbursing the City of New York for required  security. In addition, while other agencies’ facilities could potentially be  used, DOD officials noted that they have not begun coordinating with  other agencies because the trial dates are currently unknown. But, given  the logistical constraints and budget challenges, if DOD waits until the  announcement of a trial dates, the department runs the risk of not having  adequate time to plan and budget for a new CCTV site in New York City  or any other appropriate location.

This example illustrates the complexities of addressing public access, the  usefulness of assessing the tradeoffs between DOD’s current approach to  public access and options for expanding access, and a strategy that  addresses management challenges and identifies needed resources.  Until DOD comprehensively identifies and analyzes the risks of  maintaining its current approach compared with those posed by potential  options for expanding public access, it cannot be assured that it has met  its objective of maximizing public access to the extent possible.  Furthermore, until DOD develops a strategy, as appropriate, to deal with  potential options and describes how the department plans to achieve its  public access goals, it cannot ensure that it is well-positioned for the  substantial increase in demand for public access that is anticipated when  the commissions’ proceedings move into the trial phase.

With the responsibility to carry out military commissions’ proceedings for  cases that many believe to be the most consequential in United States  history, DOD also has—according to its guidance—the responsibility to  provide the public with as much access as possible, consistent with  national security interests. Although this is a complex set of  responsibilities, DOD has facilitated public access to commissions’  proceedings in a variety of ways. These complexities and constraints  notwithstanding, there are a number of challenges posed to the public’s  ability to access commissions’ proceedings and obtain information about  the proceedings. While there are potential options to address these  challenges, there are also potential risks that need to be assessed.  Whether or not DOD should expand public access—as outlined by these  potential options—is a determination the department must make. Given  that the public’s demand for access will most likely increase substantially  when the commissions’ enter into their trial phases, the longer DOD waits  to determine its strategy, the greater the risk of not fully meeting the  demand from victims and family members, non-government stakeholders,  and the general public.

The Secretary of Defense should ensure that the Deputy Secretary of  Defense assesses the tradeoffs of potential options for expanding public  access to military commissions’ proceedings by identifying and analyzing  associated risks, and, as appropriate, developing a strategy to implement  any viable options.

We provided a draft of this report to the DOD, Department of Justice, and  relevant intelligence agencies for review and comment. In written  comments provided by DOD (reproduced in appendix IV), DOD concurred  with our recommendation, noting planned actions to address it. DOD and  certain intelligence agencies also provided technical comments, which we  incorporated in the report as appropriate.

We are sending copies of this report to the appropriate congressional  committees, the Acting Secretary of Defense, the Office of Military  Commissions, Department of Justice, and four relevant intelligence  agencies. In addition, the report is available at no charge on the GAO  website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact  me at (202) 512-3604 or FarrellB@gao.gov. Contact points for our Offices  of Congressional Relations and Public Affairs may be found on the last  page of this report. GAO staff who made key contributions to this report  are listed in appendix V.

Appendix I: Objectives, Scope, and Methodology

This report describes (1) how the Department of Defense (DOD) currently  facilitates public access to military commissions’ proceedings; (2) the  challenges, if any, that the public faces in gaining access to or obtaining  information on these proceedings; and (3) what is known about potential  options to address public access challenges, including any related  tradeoffs.

Specifically, the military commissions’ cases included in our review are  9/11: Khalid Shaikh Mohammad et al (2), USS Cole: Abd al-Rahim  Hussein Muhammed Abdu Al-Nashiri, Majid Shoukat Khan, Abd al Hadi  al-Iraqi, and Ahmed Mohammed Ahmed Haza al Darbi.

To address our first objective, we reviewed relevant guidance, policies,  and regulations related to public access to military commissions’  proceedings. We attended military commissions’ proceedings at U.S.  Naval Station Guantanamo Bay (NSGB) from April 30, 2018, to May 4,  2018 to observe how the public accessed and viewed the proceedings, in  person. During this visit we also visited the facilities relevant to public  access. For example, in the Expeditionary Legal Complex, where  proceedings are held, we inspected the courtroom where hearings occur,  discussing the equipment used to facilitate the 40-second delay used to  ensure that classified information is not transmitted to Closed Circuit  Television (CCTV) sites during open hearings. We also inspected the  gallery, from which the public watches hearings. In addition, we visited  facilities where certain of the accused are detained, discussing with DOD  officials the access granted by the department to visiting victims and  family members and non-government stakeholders. We also discussed  key issues with DOD officials, such as the Chief Prosecutor and the  Military Commissions Defense Organization.

To observe how the public utilized remote viewing sites we viewed  military commissions’ proceedings remotely at one CCTV site, and visited  another. These include Fort Meade, Maryland, which is a site for victims  and their family members, as well as being the site for use by the media,  non-governmental organizations, and members of the general public. In  addition, we visited the Norfolk Naval Station, Virginia CCTV site, which is  open to victims and family members only. In addition to watching the  hearings, we spoke with Office of Military Commissions (OMC)  representatives at the sites regarding their responsibilities and they  provided us with an overview of how the sites operate. In addition, to  determine what information was available on OMC’s public website and  how it is organized, we reviewed its content, including the portion of the  site reserved for victims and their family members. Further, to obtain  information on how public access is provided in federal criminal courts,  we conducted interviews with officials from the Department of Justice and  the Administrative Offices of the U.S. Courts, also discussing with these  organizations whether they provided support to DOD’s public access  procedures for the commissions’ proceedings.

To address our second objective, we reviewed applicable sections of the  U.S. Constitution, relevant case law, executive orders, DOD guidance  and reports from experts on public access to military commissions’  proceedings to understand the role that current laws, policies, and judicial  precedence play in decisions about public access to military  commissions’ proceedings. We then took selected examples of public  access issues at military commission proceedings and compared them to  the access afforded to the public at terrorism trials held in U.S. federal  courts. To identify and understand any challenges facing public access,  we obtained the perspectives of both victims and their family members  and other non-government stakeholders on any challenges associated  with public access to commissions’ proceedings. We developed a non- generalizable survey to obtain perspectives on public access from a  sample population of victims and their family members associated with  terrorist attacks being adjudicated by military commissions’ proceedings, such as the attacks on the USS Cole and September 11, 2001. See  appendix II for further details regarding our survey of victims and family  members.

We also developed a standardized set of 10 questions that was used to  obtain the perspectives of 55 selected non-government stakeholders on  challenges to public access to military commissions’ proceedings. The  questions were delivered to these stakeholders in the form of a self- administered questionnaire. To identify the non-government  stakeholders included in our review, we first obtained a list of the non- governmental organizations that DOD has approved to observe military  commissions’ proceedings in-person at NSGB. These organizations  include victim advocacy groups, universities, civic organizations, and  independent professional associations. During the course of our review,  we identified additional individuals with relevant expertise, such as legal  and national security policy experts and members of the media whom we  also asked to complete our self-administered questionnaire.

We pre-tested the self-administered questionnaire with four non- government stakeholders to ensure functionality and ease of  understanding—after which we distributed the questionnaires via email to  the remaining non-government stakeholders included in our review. Of  the 55 non-government stakeholders who received our questionnaire, 25  completed it. The analysis was conducted by two analysts who reviewed  and coded responses according to a pre-determined coding scheme. A  third analyst was used to reconcile any conflicting conclusions from the  first two analysts. The results of our analysis were used to describe non- government stakeholders’ perspectives in the report, as appropriate. We  supplemented data obtained through our survey and self-administered  questionnaire with interviews of victims and their family members, DOD  officials, and observers from non-governmental organizations to better  understand their perspectives.

To assess the timeliness of information posted on OMC’s website, we  gathered and analyzed data from an inter-agency review team that  reviews documents to be posted on OMC’s website, as well as the  website itself. In regard to data from the inter-agency review team, we  obtained and analyzed data on when court documents were filed with  OMC and the date on which the inter-agency review team returned them  to OMC for posting; comparing that amount of time to a timeliness  standard laid out in DOD’s Regulation for Trial by Military Commission  (Regulation). According to the Regulation, DOD is supposed to post  documents to the OMC website generally no later than 15 business days  after documents have been filed with OMC’s Trial Judiciary, known as the  “file date.” In regard to our analysis of data from OMC’s website, we  collected this information using a “web-scraping tool” that we developed  to regularly visit OMC’s website and capture data about a court  document’s file date and the date on which it was posted on OMC’s  website. We selected these two dates because they allowed us to  compare the time DOD took to post court documents to the department’s  timeliness standard. Using our analysis of data from the review team and  OMC’s website, we determined the extent to which DOD posted court  documents in a timely manner. Please refer to appendix III for additional  details on the scope and methodology for our collection of data using the  web-scraping tool and our analysis of these data.

For data provided by DOD, we performed a number of assessments. As a  result of discussions with the Defense Intelligence Agency about the  timeframes and completeness of available data, the agency clarified  timeframes and explained why the data are not fully complete. As a result  of these assessments, we determined that data from DOD on timeliness  of information posted to the commissions’ website are sufficiently reliable to serve as one of several sources of information used to determine that  DOD faces challenges in the timeliness with which it posts court  documents to the commissions’ website. In addition, through discussions  with OMC officials about the way information is added to the  commissions’ website, we determined that the data we independently  collected and analyzed from the website are sufficiently reliable to serve  as another source of information used in our determination of challenges  that DOD faces.

To address our third objective, we reviewed relevant reports to identify  potential options for expanding public access to commissions’  proceedings and any concerns associated with doing so. To determine  potential options for expanding public access to the commissions’  proceedings, we obtained the perspectives of victims and their family  members, other non-government stakeholders, and DOD officials on (1)  what potential options for expansion or improvement exist, and (2) any  associated concerns with potential options for expansion or improvement.  We conducted a survey of victims and their family members to determine  the extent to which respondents support various options for expanding  public access and their views on the timeliness of court document  postings to OMC’s website. Similarly, we provided standardized question  sets to non-government stakeholders and analyzed responses from the  completed questionnaires to determine the extent to which respondents  support various options for expanding public access as well as their views  on other issues, such as the timeliness with which court document are  posted to OMC’s website.

Further, to examine the potential risks associated with these options for  expansion—and ways to mitigate those risks—we discussed these  potential options with DOD officials. Finally, we asked OMC officials to  identify any DOD-led efforts to assess the current level of public access to  commissions’ proceedings. We then compared any related efforts with  Standards for Internal Control in the Federal Government, which state  that agencies should identify and analyze risks related to achieving its  defined objectives, and to develop leading practices for sound strategic  management planning. Further, we compared any related DOD efforts to leading practices of effective federal strategic planning, which we derived  in part from the Government Performance and Results Act (GPRA), as  updated by the GPRA Modernization Act of 2010, associated guidance,  and our prior work. To assess the extent to which DOD has applied  selected principles of effective federal strategic planning in its facilitation  of public access to military commissions’ proceedings, we compared  actions DOD has taken to address challenges that it faced with meeting  its goal of maximizing public access, consistent with the interests of  national security, to these leading practices of effective federal strategic  planning.

We conducted this performance audit from January 2018 to February  2019 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.

Appendix II: Scope and Methodology for Survey of Victims and Their Family Members

To obtain information about the perspectives of victims and their family  members on public access to military commissions’ proceedings, we  administered a survey to the memberships of three victim’s organizations.  In the survey questionnaire, we asked victims and their family members  to provide their perspectives on the different ways they access  information about, or participate in viewing military commissions’  proceedings. We administered the survey from July to September 2018.  A reproduction of the questions and answers in the questionnaire and  aggregate responses from the survey are included in this appendix.

We informed our methodology approach and survey development through  interviews and other communications with representatives from eight  victim’s organizations. From these interviews we gathered information  from the organizations about their membership, such as, the number of  members, criteria for becoming a member, and how information about the  members was recorded and stored. We also ascertained their willingness  to share contact information for their membership with us for the sole  purpose of administering the survey.

Survey Population and Selection of Victims and Their Family Members

We defined and identified the survey’s target population of victims and  family members through interviews with victims’ organizations whose  memberships were impacted by the attack on the USS Cole, the events  of 9/11, or other terrorist attacks for which there are military commissions  cases being tried or that have been completed. Our survey population  was composed of the memberships of the Department of Defense’s  (DOD) Victim and Witness Assistance Program (VWAP) (1,928 eligible  members), which includes victims who were impacted by the attack on  the USS Cole, the events of 9/11, or other terrorist attacks, for which Hadi  Al-Iraqi is accused, as well as Massachusetts 9/11 Fund, Inc. (470 eligible  members), and 9/11 Families for Peaceful Tomorrows (200 eligible  members). Membership in these organizations, and inclusion in our  survey population, was limited to those family members or surviving  victims who chose to join one or more of these organizations. In addition,  we added 42 other qualifying victims and family members (who may not  have been members of the three organizations) that we identified in  answers to a survey question that respondents were asked. Our survey’s  population totaled 2,640 victims and family members, and we attempted  to contact each one in our survey. Our survey population was limited to  the memberships of these organizations because of concerns from some  other victims’ organizations about the applicability of their data. However,  many more people were significantly impacted by the events of 9/11 than  are represented in our survey population. For example, according to the  World Trade Center Health Program there are 88,484 individuals who  have received medical treatment for 9/11 related injuries or illnesses.  Thus, the survey results presented in the body of this report represent the  views of only those responding, and are not generalizable to any broader  population because it is difficult to determine with certainty the total  population that was impacted by the events of 9/11 and would therefore  have an interest in access to military commissions’ proceedings.

We informed the development of our methodological approach and the  actual questionnaire through four meetings with eight victims and their  family members during our visit to Naval Station Guantanamo Bay  (NSGB). In these meetings, we piloted an interviewer administered  questionnaire that included items that (1) related to their views on various  topics related to the military commissions’ proceedings, and (2) solicited  input on the best approaches for gathering the views of victims and family  members. These meetings confirmed that a survey would be a valuable  method for gathering the views of a broad range of victims and family  members and informed the development of a draft instrument for further  pre-testing.

In developing, administering, and analyzing this survey, we took steps to  minimize the five types of potential errors that the practical difficulties of  conducting any survey may introduce. Because we surveyed all members  of the population we identified, there was no statistical uncertainty in our  estimates due to sampling error. A different issue, measurement error,  can result from differences in how a particular question is interpreted, and  the sources of information available to respondents. We conducted 4 pre- tests of the draft questionnaire with 4 victim family members and made  revisions to (1) ensure that survey questions were clear, (2) obtain any  suggestions for clarification, (3) determine whether victims and their  family members would be able to provide responses to questions with  minimal burden, and (4) ensure that the survey was comprehensive and  unbiased. We also provided GAO contact information in our  communications for respondents who had questions about the survey or  experienced technical problems.

To minimize the effects of coverage error—the exclusion of some eligible  members of the population, duplicate responses, or inclusion of ineligible  members—we consulted the three victims’ organizations to determine the  coverage of their membership lists and what survey methodology options  for contacting them existed based on their willingness to provide us with  contact information for their membership. All three of the organizations  preferred to retain their member contact information citing privacy  concerns, but agreed to send their membership unique usernames and  passwords provided by GAO via email that their members could use to  access the survey. Additionally, DOD VWAP also agreed to send postal  mail questionnaires provided by GAO to approximately 500 of their  members who did not have email addresses on record. GAO also  provided an introductory email or letter, and postal questionnaires. Survey  respondents received the email and used their associated username and  password to access the survey website, and before opening their  questionnaire, were required to change their password to further prevent  unauthorized access to their responses. Those respondents who received  postal mail questionnaires were given the option to complete the paper  questionnaire or to log into and complete the web-based version.  Because we did not obtain contact information from the organizations we  worked with we were unable to determine if more than one survey was  sent to any of the respondents. For example, if a respondent was a  member of both 9/11 Families for Peaceful Tomorrows and DOD VWAP it  is possible that they would have received two sets of unique usernames  and passwords. However, we did include statements in the introductory  email that directed respondents to disregard the email if they had already  received a copy of the survey.

Non-response error can result when a survey fails to capture information  from all population members selected into the survey. To encourage  survey response, for emails that were undeliverable, their respective  organizations contacted them via telephone and attempted to obtain new  email addresses. We were also able to send reminder emails out to  respondents who were members of the two private victims’ organizations.  However, DOD VWAP preferred not to send reminder emails to its  members because of concerns of being overly intrusive. In an effort to  increase the number of respondents to the survey we included a question  asking respondents if they wanted to provide contact information for any  other victims and family members who might be eligible to respond to the  survey, and we administered the survey to them as well.

We received 248 responses to the 2,640 questionnaires that were sent  out, which after removing two ineligible population members confirmed to  have died, resulted in a response rate of 9.4 percent. We anticipated a  fairly low response rate because in our discussions with the leadership of  each of the victims’ organizations they had pointed out that this  population was quite private. In addition, the issues were sensitive, and  not all organization members may wish to engage in discussions or  surveys regarding activities related to the terrorist events. There were 70  responses by mail and the remaining 178 responses were to the web  based survey. Also, there were 11 partial, but usable responses and 22  partial, but not usable responses.

Finally, to limit the possibility of processing error, survey responses were  checked for invalid or illogical answer patterns, and edits were made as  necessary. All analysis programming was verified by a separate data  analyst.

Reproduced below are the questionnaire text and question and answer  wording presented to victims and family members in our survey. The  percentage of responses for each answer to a question is displayed. Not  all 248 respondents to the survey answered each question—some  questions were only asked of a subset of respondents giving a qualifying  answer to an earlier question, and not all qualifying respondents may  have answered a particular question. Percentages may not sum to 100  percent due to rounding. Narrative answers to open-ended text questions  are not displayed for brevity and to limit the possibility of identification of  individual respondents.

This survey is being done by the Government Accountability Office, or GAO. GAO is sometimes called the  Congressional Watchdog because it reviews federal programs for the United States Congress. Congress  directed us to consider if it’s possible, and a good idea, to expand the public’s access to Military  Commission proceedings (usually referred to as hearings) that are open to the public. As part of this effort,  Congress also asked us to speak with those affected by terrorism and their families.

We are very appreciative of your willingness to respond to this survey. We will combine your answers with  those of many others, and we will not publish any information that could identify you. We will not share any  identifiable information from this survey unless required by law or a member of Congress.

If you have any questions about this survey, or the GAO study, please contact ________, an analyst on  this study, at proceedings@gao.gov ________.  1.  To better understand your perspective on the events of 9/11 or the attack on the USS Cole, which one of  the following best describes you?

Family member of a victim (parent, sibling, daughter, son)

Family member of a victim (aunt, uncle, niece, nephew, grandparent)

We used these data collected from the commissions’ website in three  analyses, as discussed below.

Analysis, as of June 19, 2018: According to our research, the first  document recorded as being filed with the Trial Judiciary, and included in  our scope, on the current OMC website has a file date in April of 2011.  On June 19, 2018, we began data collection using the web-scraping tool,  as described above. While the website provides a file date for all  documents, the website does not provide a date when documents are  uploaded. Thus, for documents uploaded before June 19, 2018, we were  not able to assess the Department of Defense’s (DOD) timeliness  performance with data from the web-scraping tool. However, our analysis  as of June 19, 2018, allowed us to asses other aspects of performance.  Specifically, we determined the following:

On June 19, 2018, the number of documents that had been filed with  the Trial Judiciary, number that had been uploaded, or number that  had yet to be uploaded.

On June 19, 2018, the number of documents that had not been  uploaded within 15 business days of the file date. We refer to these  documents as having missed DOD’s 15 business day timeliness  standard.

On June 19, 2018, for documents that missed the 15 business day  standard, the median number of days that they were uploaded after  the timeliness standard.

On June 19, 2018, DOD’s performance in these parameters, for five  different types of court documents: motions, rulings, transcripts from  open hearings, transcripts from closed hearings, and docket-related  documents.

Recent performance analysis, June 19 to November 19, 2018: While  the website does not provide a date when documents are uploaded, our  web-scraping tool provided this information for each document uploaded  on or after June 19, 2018. Thus, for the five months we used the tool, we  were able to assess DOD’s timeliness performance for each document  filed with the Trial Judiciary or uploaded. For these documents, we  determined the following:

The number and percentage of documents that were uploaded after  DOD’s 15 business day timeliness standard.

For documents uploaded after the 15 business day standard, the  median number of days that the standard was missed.

DOD’s performance in these parameters, for five different types of  court documents: motions, rulings, transcripts from open hearings,  transcripts from closed hearings, and docket-related documents.

Docket availability analysis, June 19 to November 19, 2018:  According to DOD guidance and an OMC official, there is a set of  documents that list the legal motions on which the military judge plans to  hear arguments from the prosecution and defense during a specific  hearing. We refer to these documents as docket-related documents. This  set of documents includes dockets and amended dockets, among others,  that are a sub-category of all the court documents that we discuss in this  report. For hearings that occurred during the five months in which we  used the web-scraping tool, we reviewed the commissions’ public website  to identify hearings that occurred during this timeframe, cross-referencing  the hearings with the posted court documents to identify docket-related  documents related to these hearings. Because docket-related documents  for a specific hearing share an alphanumeric designation, we were able to  use this information to determine DOD’s timeliness performance for  posting docket-related documents for these five hearings. For these  documents, we determined the following:

For each hearing that occurred from June 19, 2018, whether the  relevant docket-related documents for a hearing were posted at least  one day before the hearing for which those docket-related documents  list the motions to be argued in the hearing.

Appendix IV: Comments from the Department of Defense Office of Military Commissions

Appendix V: GAO Contact and Staff Acknowledgments

In addition to the contact named above, Kimberly Mayo, Assistant  Director; Tracy Barnes; Kathryn Bassion; Steven Campbell; Signe  Janoska-Bedi; Jill Lacey; Ronald La Due Lake; Amie Lesser; Ying Long;  Ned Malone; Samuel Moore; Christina Murphy; Samuel Portnow; Carl  Ramirez; Clarice Ransom; Paul Seely; Chris Turner; and John Van  Schaik made key contributions to this report.

Some victims and family members of victims of 9/11 and other terrorist attacks, as well as other members of the public, want better access to pre-trial hearings of alleged terrorists held at Naval Station Guantanamo Bay, Cuba. The public may view proceedings from 52 seats at the courtroom and at 5 closed-circuit television sites on military bases.

Options to increase access include adding closed-circuit television sites for the public and broadcasting via television or the internet.

We recommended that the Defense Department identify and analyze the risks associated with these options, and develop a strategy for implementing the viable ones.