Military Courts: DOD Should Assess the Tradeoffs Associated With Expanding Public Access to and Information About Terrorism Trials
Released: 2019-02-12T00:00:00

Letter

Background

Brief History of Military Commissions

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.

Military Commissions’ Legal Framework

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.

NSGB Expeditionary Legal Complex

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

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.

Remote Viewing of Proceedings

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.

Conclusions

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.

Recommendation for Executive Action

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.

Agency Comments

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

Overview

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.

Survey Development and Administration

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.

Survey Questions and Results

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)

Data Analysis

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

Contact

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.