American publication bans

Think back to the spring of 2005, amid the heady days of the Gomery inquiry. Remember all the triumphalism coming from American journalists, conservative bloggers, liberal bloggers, and message boards alike at the very thought of a publication ban? No country that has publication bans can be considered to have a free press, they would say. Thank God that we have the First Amendment in the land of the free and the home of the brave. A few smart Canadians tried to talk sense: publication bans are about what you can print, not what you can know, they're only imposed to protect the impartiality of juries and/or out of respect for victims' families, and they're always very temporary. It didn't seem to make a dent.

Fast-forward to 2007, and the first major media reports of the secret military trials at Guantanamo Bay are coming out. Well, only sort of, because reporters have been banned from covering them. But on the National Public Radio show On the Media last week, Miami Herald staff writer Carol Rosenberg talked about what she saw back when reporters were still allowed in (various emphases mine):

They wanted us there. They went out of their way to bring in flights and sponsor trips for reporters to come in and sit at a table and watch these things. You had to sign some ground rules, and the most difficult one was if the man uttered his name in the course of the proceeding or you found out his name, you were forbidden to report it. [...]

What they were saying was we have a process, and we are going to show this process to reporters, and they're going to tell you that people come in and can make an argument. And then we're going to make a decision. And so, see, America, you can trust what we do down here because we have a process. [...]

It's pretty basic and crude. I've attended a number of these in the trailer inside Camp Delta, and it's detainee –– a prisoner in a uniform with what they call a three-piece suit, which is shackles around his arms and waist and legs, padlocked to the floor. He's sitting on a white plastic chair, and he's facing off with three military officers, and this is his chance to tell the U.S. military why they're wrong to hold him. [...]

There are no lawyers. This is a process that was created by the military to somehow resemble a battlefield status hearing. They do allow him, under certain circumstances, to bring another detainee, who will get shackled into the next plastic chair next to him to a padlock on the ground, and he can help him make his argument. But there are no lawyers. [...]

Basically, the reporter and the detainee get led into this room. You all sit in your places. He makes his argument. You take your notes. They declare the unclassified portion of it over. You leave. He leaves. Then they open up the secret file. Then they decide whether or not he's an enemy combatant. And then they make a recommendation up to Washington. [...]

And what we know is 30-some of these 500-plus were actually found not to be enemy combatants. But we don't - I don't know whether the guy I watched tell him, that wasn't me, Colonel, you've got the wrong guy, we don't know if they decided they had the wrong guy. [...]

If a guy in that chair says, you know, Colonel, they nearly drowned me and I confessed to crimes I never committed in places where I never was, we would want to write that, even if I signed a ground rule in which I am told that I'm not allowed to report it. A couple of years ago, a colonel said to me, you know, we still don't have one of those Men in Black flashy things that can erase it from your brain.

So in other words, we've got one country that has a system of publication bans in place by which they are imposed in some trials on a temporary basis, but reporters are still allowed to watch and write and analyze the court proceedings (and in the case of the Gomery inquiry, the thing was actually broadcast to the public), they just have to hold their stories for a few weeks. And we have another country that has no system at all in place (because that would be contrary to their freedom of speech laws), and so they just make it up on the fly, banning reporters from watching the proceedings or at the very least refusing to let them know the decisions or even the names of the people whose trials they're watching. And it's the first country that has an unfree press?

*backing away slowly* Of course. Whatever you say.

You still kind of have to forgive my fellow countrymen for their irrationality, though, because First Amendment triumphalism is pretty much fed to us with our mothers' milk. I talked once a while back about how it had taken several years away from the U.S. for my own knee-jerk ideological analysis of this concept to give way to a more nuanced one. We hear the phrase "publication ban" and automatically flip out. It's kind of embarrassing, when it comes right down to it.

[Update: Chester from the Vanity Press refers to this hyper-ideological free speech tenet of American culture as First Amendment Fundamentalism, and asks "what good is it doing, exactly?"]