Defense lawyers for Nashiri say they need their own staff member authorized to approach Pentagon-approved victims. Over the prosecutions objections, defense lawyers got the trial judges order for Loftus to testify in court along with a non-government expert on victim-witness relations, Tammy Krause, whose name, perplexingly, is not blacked out in a separate judges order.
As for Loftus identity, its being protected from disclosure to the public because it meets the definition of general discovery materials, says Army Lt. Col. Todd Breasseale, a Pentagon spokesman. Shes entitled to anonymity until her actual testimony, said Breasseale, who would not elaborate on why a government-salaried worker gets anonymity but the civilian defense witness does not.
Zachary Katznelson, a sometime Guantánamo court observer as senior attorney with the American Civil Liberties Unions National Security Project, called the redaction of Loftus name an example of confusing and inconsistent application of opaque rules.
If her name had never been made public, and the judge likewise had Krauses name blacked out prior to testimony, that would make sense, he said.
But, her name is already in the record by name and it wasnt bleeped out in our 40-second delay and its already in the transcript, said Katznelson.
Katznelson is a lawyer who has filed unlawful detention suits for some of Guantánamos captives, and throughout the interview was careful never once to speak Loftus name, just in case.
Thats because lawyers, as well as journalists, must navigate a minefield of rules that can suddenly and inexplicably pop up. In 2010, the Pentagon banned four reporters from covering the war court for life for publishing the name of former Army Sgt. Joshua Claus, a military interrogator who was to testify anonymously in a war-court hearing. He previously had been interviewed and identified by name in a Toronto Star article. Some of the reporters hired a lawyer, and the Pentagon relented. Now reporters have to sign 12 pages of ground rules to get access to the Guantánamo court compound. But rule C.3. makes it clear that the Pentagon cant punish reporters for publishing Loftus name.
The judge, however, can let even people who are identified in the court record by name testify incognito.
Thats what happened at a 9/11 hearing in October when Army Col. James Pohl, chief of the war court, agreed to let a deputy prison camps lawyer testify anonymously even though her name, rank and duties are publicly available in uncensored documents at the court. Why? One prosecutor said she was entitled to anonymity as part of the security force. The chief prosecutor argued that, in the absence of a protective order, she should get protection.
And the protective order, which lays out what can be kept secret is sometimes a secret, too.
On Dec. 20, Judge Pohl signed a protective order covering Unclassified Discovery Material in the Sept. 11 case outlining the obligations of lawyers and court workers on what they must keep secret in the run-up to the trial. The Pentagon waited a week, until two days after Christmas, to notify the public of the existence of Protective Order #2.