According to the judge in the case, Army Col. Patrick Parrish, the final phase of the pre-trial “suppression” hearing — to determine whether Khadr’s statements to interrogators are sufficiently voluntary for the government to use against him — will begin on July 12. That’s when the government’s assessment of Khadr’s mental state as a 15 and 16-year old detainee in American custody, raised by the defense, will square off against Khadr’s attorneys’ experts, who will contend that a teenager under military interrogation is inherently under duress. It emerged during the first phase of the hearing that Khadr’s first interrogator told him a “fictional story” about a young detainee raped and killed for not cooperating with his captors.

The actual trial phase of the military commission, in which the government will seek to prove that Khadr threw a grenade in 2002 that killed U.S. Army Special Forces Sgt. First Class Christopher Speer, will commence on August 10. That’s the first military commission of the Obama era. And it may not even happen: both the government and Khadr’s attorneys have publicly acknowledged seeking a plea deal to settle the government’s case against Khadr. But if they can’t reach one, it’s back to Guantanamo on August 10 for a hot and tense trial.

According to The Miami Herald, whose Guantanamo beat reporter, Carol Rosenberg, was among the banned, lawyer David A. Schulz, who represents three of the four news organizations, contended in a letter that it was unreasonable to sanction journalists for reporting the name of an anonymous witness in the commissions whose identity was already public. “The order is mistaken, the remedy is too severe, and the expulsion should be rescinded,” Schulz wrote to Deputy Assistant Secretary of Defense for Public Affairs Bryan Whitman.

Schulz said the law that created the military commissions leaves such decisions up to a judge.

Further, the reporters did not obtain the name of the witness at the hearing, and it serves no military purpose to ban someone from publishing information that’s already public, Schulz argued.

The judge in the case, Army Col. Patrick Parrish, has not issued any finding that the four journalists violated a protective order on the identity of a court-martialed military interrogator put in place by a previous judge. Banning the journalists was a policy decision made in the Office of the Secretary of Defense, not a judicial reprisal issued from the bench.

In addition to Rosenberg, the banned reporters are Michelle Shephard of the Toronto Star; Paul Koring of The Globe and Mail; and Steven Edwards of Canwest. Schulz represents the Star, the Herald and Canwest in the appeal.

Whitman declined comment to the paper.

Elana Kagan (Jay Mallin/ZUMApress.com)

So Solicitor General Elena Kagan will be President Obama’s second Supreme Court nominee. The emerging conventional wisdom is that Kagan, a rare nominee for the high court who hasn’t been a judge, is a very smart blank slate. On at least one category of issues that Kagan will face — the intersection of national security and law during a time of war — that conventional wisdom looks correct. But there’s a proxy for that set of issues, however inexact, that offers a few clues in advance of her confirmation hearings: Kagan’s deference to executive power.

[Security1] No one has chronicled Kagan’s embrace of the executive more assiduously than Glenn Greenwald, who’s appalled that Obama would pick someone with such a record. Given her relatively thin paper trail, one of the primary pieces of evidence for her perspective is her 2009 nomination hearing for the solicitor generalship, in which she expressed eagerness to bless Sen. Lindsey Graham’s (R-S.C.) perspective that the president possesses broad wartime authorities to detain enemy combatants. (“No daylight” was how The New York Times assessed the exchange between the two.)

That assent appears to flow from a broader perspective. Charlie Savage of the Times found this weekend that Kagan, the dean of Harvard Law School from 2003 to 2009, was the tardiest and least forceful of Obama’s Supreme Court shortlist to criticize the Bush administration’s expansive assertions of executive wartime powers. Savage explored a 2001 law review article she penned defending the Clinton administration’s executive unilateralism:

In the article, Ms. Kagan argued that even if Congress has given the authority to make a regulatory decision to an agency, the president has the power to control that decision unless a statute explicitly forbids him from interfering. She wrote that it was “ironic” that “self-professed conservatives” were associated with calling for stronger executive power in recent decades because a more robust presidency could achieve “progressive goals.”

Still, her defenders note that she also wrote, “If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter.” And in 2007, she gave a speech celebrating the actions of Bush lawyers who battled the White House over the legality of the warrantless surveillance program.

It’s worth noting that she hired the most prominent of them: Jack Goldsmith, the former chief of the Office of Legal Counsel, who gained prestige by attempting to roll back Bush’s excesses on torture and surveillance. Then again, it’s also worth noting that Goldsmith advocates creating a permanent national security court to entrench a “a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial.”

It would be foolish to assume that Kagan and Goldsmith believe the same thing in this regard, absent an explicit statement on a national security court from the nominee. But “non-criminal military detention for enemy terrorists” will very likely be among the first things that Kagan would confront on the high court. Graham and Attorney General Eric Holder pledged last month to work on a system of indefinite detention without trial for a cohort of current and future terrorism detainees. Just yesterday, Holder went further, vowing to expand the Miranda warning’s “emergency” exemption clause. Beyond that, the military commissions that the administration and Congress revised last year are still untested for terrorism prosecutions, plagued by belated rules of procedure and in the midst of a potentially defining challenge about the admissibility of coerced evidence. Two senior administration officials responsible for the new scope of the commissions expressed concern last year that the process rights allowed by the commissions may not withstand judicial scrutiny.

More generally, the Obama administration may not be claiming inherent executive authority for its expansive national security agenda, as its predecessor did– it prefers to locate that power within a brief and rushed post-9/11 statement of congressional intent — but among its claims are that American citizens whom it declares are terrorist operatives can be killed without any form of due process.

In fairness, lots of judges and legal scholars, even on the left, believe that presidential authority is at its greatest during wartime. But as Greenwald has pointed out most vigorously, the most important dissenter from that perspective is the justice Kagan may replace: John Paul Stevens, who led the charge to roll back the expansive detention authority the Bush administration asserted.

Senior Obama aides have said they seek to create a “sustainable approach” on questions like terrorism detention authority that can claim a consensus within Congress and the courts that can last beyond the Obama administration’s term in office. That’s why the administration has disappointed civil libertarians on the issue so greatly. By nominating Elena Kagan to the Supreme Court, Obama stands a better chance of winning judicial affirmation to whatever system he’s building with Graham. If Kagan doesn’t look like a new Stevens, it may be that the second coming of John Paul Stevens would stand sharply in the way of Obama’s desired “sustainable approach” to the intersection of national security and the law.

After Col. Patrick Parrish, the military judge presiding over Khadr’s case, gaveled this week’s proceedings in Khadr’s pre-trial hearing to a close, both teams of attorneys trudged to the aircraft hangar that’s been converted into the press’s work area for back-to-back news conferences. Defense counsel had briefed us every day after court ended, and so attorneys Kobie Flowers, Barry Coburn and Army Lt. Col. Jon Jackson didn’t surprise us when they commented on the big event of the day — testimony from “Interrogator #1” that he threatened Khadr with rape and even death in Bagram in 2002.

But it was the first time that Murphy and his team held a press conference during the past two weeks, and he came out swinging. “What you heard was a summation of their closing argument,” Murphy said, accusing Flowers, Coburn and Jackson of improperly trying Khadr’s case outside the courtroom and calling it a “violation of that ethic that applies to all of us” barring lawyers from “prejudicing a criminal proceeding.” When pressed on whether he would refer the defense lawyers to some professional body for sanction, Murphy demurred: “All I’m prepared to say is that from my observation, I saw comments on the merits of the case and the merits of the evidence, and that operates to prejudice the accused. That’s not something we’re going to do and we’re not going to do it.”

In his general comments about Khadr’s case, Murphy denied that Khadr’s youth — he was 15 years old when captured by U.S. forces in 2002 — made his prosecution problematic. He warned about the policy consequences of such an argument, asking, “Is al-Qaeda going to start recruiting 15- and 16-year-olds?

But he ended his press conference with a firm defense of keeping Interrogator #1′s identity private, even though identifying information had come out in open court; the interrogator in question pleaded guilty in his court martial on detainee abuse and cannot be re-deployed (re-deployment was an issue Murphy cited as grounds for non-disclosure); and the individual in question gave an on-the-record interview to Michelle Shephard of the Toronto Star in 2008 saying he wanted to clear his name.

“We think that protective order should be enforced,” he said, not singling out any reporter or publication. “In these proceedings, the access has been extraordinary. You see so much. … Our position is, and I hope it would be given a lot of thought, that publishing identities carries some risk and the judge recognizes that risk when he issues these protective orders.” Asked how the media could formally file a challenge to the order, Murphy replied, “I’m not going to become your lawyer.”

Less than an hour after the press conference concluded, four reporters were informed by the Office of the Secretary of Defense’s Public Affairs office — to be very clear, a different chain of command than the one to which Murphy answers through the Office of Military Commissions — that they would be banned from returning to the base for publishing Interrogator #1′s name. Parrish has not issued any ruling that any reporter has violated his protective order.

The four journalists are Michelle Shephard of the Toronto Star, Steven Edwards of Canwest, Paul Koring of the Globe & Mail and Carol Rosenberg of the Miami Herald. They are not being thrown off the base, but, as of now, they are barred from returning.

A letter written by an official in the Office of the Secretary of Defense’s public affairs division specified that each had published the name of a witness who testified to the military commissions today under the name “Interrogator #1.” Identifying information about that interrogator was entered into the record of the hearing during open court testimony by both the prosecution and the defense. Ironically, the letter confirmed that witness’s identity.

While the judge in the case, Col. Patrick Parrish, issued an admonition yesterday for reporters to respect the anonymity of the classified witnesses, he did not rule that any reporter here had violated the protected order. The decision to block the four reporters from returning to Guantanamo Bay is a matter of policy from the Office of the Secretary of Defense. And those four are not the only ones within the press corps here to have reported Interrogator #1′s name.

Those four reporters comprise much of the institutional knowledge of Guantanamo Bay and the military commissions, as their colleagues widely acknowledge. Shephard has written the most comprehensive account to date of Omar Khadr’s life and experiences in detention at Bagram and Guantanamo Bay, in both her Star reporting and her book Guantanamo’s Child. Rosenberg is the single most diligent, consistent and experienced Guantanamo Bay reporter in the world, having carved out the Guantanamo beat steadily almost since the detention facility here opened in 2002 and traveled here more frequently than any other journalist. (I personally heard complaints about her from public affairs officers here five years ago — and those complaints amounted to whining about how dogged an investigator she was.) Koring and Edwards have also been invaluable resources about Khadr and Guantanamo to their colleagues these past two weeks.

The news organizations themselves are not banned from Guantanamo, just the four reporters, the letter stated. And the ban is appealable, according to the letter, which the four journalists received in an oral briefing from an OSD representative here less than an hour ago and which was only emailed to them afterward. But as it stands now, the flight taking these and the remaining reporters here to cover the Khadr hearing off the base tomorrow represents the end of their final trip to report on Guantanamo Bay.

Update: Here’s the letter that the Pentagon’s Col. Dave Lapan wrote to Rosenberg, Shephard, Edwards and Koring:

Cc: Whitman, Bryan Mr OSD PA
Subject: Ground rule violations

Lady and gentlemen:  I am writing to inform you that reporters from your
news organizations violated established and agreed-upon ground rules
governing reporting on Military Commissions proceedings at Guantanamo Bay,
Cuba.

The Media Policy and Ground Rules for Naval Station Guantanamo Bay, Cuba
were provided to each member of the media at Andrews Air Force Base before
departure to Guantanamo Bay, Cuba on April 26, 2010.  Paragraph 2a
delineates the following restriction:  “To not publish, release, discuss or
share information identified by commission’s personnel as being Protected
Information or otherwise protected from disclosure by these ground rules.”
Paragraph 2.g. of the ground rules states “The identities of all commission
personnel, to include the Presiding Officer, commission members,
prosecutors, defense counsels, and witnesses, will not be reported or
otherwise disclosed in any way without prior release approval of OSD(PA).”

Specifically, your reporters published the name of a witness whose identity
was protected in court.  The attached Word document is a collection of four
news articles written AFTER the Military Judge clearly stated on May 5 that
media covering Military Commissions are expected to comply with the
protection orders.  All four (4) articles mention “Interrogator #1″ by his
real name.

In accordance with paragraph 2 of the same policy, failure to comply with
these ground rules or the Presiding Officer’s instructions could result in
permanent expulsion from the courtroom area and may result in the removal of
the parent news organization from further participation and could subject
the
(NMR) to criminal prosecution.

As a result of these violations, these individual reporters are barred from
returning to cover future Military Commissions proceedings.  Your news
organizations may continue to cover the proceedings with other reporters.
However, future violations of the ground rules and/or military judge’s
protection orders will result in your news organization losing the ability
to send reporters to Guantanamo Bay.

If you desire more information, please contact me via e-mail or phone.  If
you wish to appeal this decision, you may contact the Deputy Assistant
Secretary of Defense for Media Operations, Mr. Bryan Whitman, at
703-697-6647 or bryan.whitman@osd.mil.

Regards,

Col. Dave Lapan, USMC
Director, Defense Press Operations

Update: From The Globe & Mail’s official statement:

The Globe’s editor-in-chief, John Stackhouse, condemned the decision against the paper’s Washington-based international affairs correspondent. “We strongly disagree with the Pentagon’s interpretation of its own rules, and intend to fight the ban as a matter of Canadian public interest in these hearings,” he said. “The name in question was a matter of public record. Banning the information now – when it is already known around the world – serves no apparent purpose other than to raise more questions about the credibility of the Guantanamo courts.”

From The Toronto Star:

“This is ridiculous and an unfair ban and the Toronto Star will object strongly to it. Absurd,’’ said Editor Michael Cooke.

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” — meaning, presumably, Guantanamo Bay — but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day — he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up — and it’s terrible something would happen — but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. “It’s all a fictitious story.”

Every other interrogator testifying so far has testified that Khadr was cooperative and forthcoming. But Interrogator #1, who interrogated Khadr “20 to 25 times” as his primary interrogator at Bagram in 2002, said that Khadr would lie to him. And he was the first interrogator to interrogate Khadr during the now-23-yea- old Canadian citizen’s nearly eight years in U.S. detention. So the other interrogators, with perhaps the exception of an FBI interrogator who questioned Khadr in October 2002, talked to Khadr after he heard a “fictitious story” about a young Afghan who lied to U.S. interrogators and as a result was raped and killed in jail.

Interrogator #1 was later court-martialed and served time for detainee abuse.

Corsetti, who has the word “Monster” tattooed on his stomach in Italian, was ultimately acquitted before a court martial in 2006 of several charges, including the abuse of a Bagram detainee named Ahmed al-Dharbi. But he has confessed publicly to participating in the abuse of numerous detainees. “I firmly believe it was torture and unfortunately I took part in it,” he told Michelle Shephard of the Toronto Star in January 2009. In 2007, Corsetti attended the Washington, D.C., premiere of a film, “Taxi to the Dark Side,” about torture at Bagram and elsewhere (I was at the screening), and emotionally expressed remorse for his role in it.

Kobie Flowers and Army Lt. Col. Jon Jackson, two of Khadr’s attorneys, said Corsetti would testify tomorrow by video conference at 9 a.m. when the hearing resumes. Neither would preview Corsetti’s testimony. “I think he’s going to fill in a lot of the gaps, a lot of your questions,” Flowers told reporters at the conclusion of court this afternoon. “It will be interesting to see how much of the gaps and the blanks he will be allowed to fill in. I do know that the prosecution does not want to see him take the stand.”

That clarifies that “Interrogator #1″ — who will testify to personally threatening Khadr at Bagram – isn’t Corsetti, it bears mentioning. Interrogator #1 is still scheduled to testify later this week, also through video conference.

Then, recalling that a medic called Mr. M testified yesterday that guards shackled Khadr’s arms at forehead level as a punishment, Jackson asked if such an “abnormal position” would include “standing with your hands shackled, even with your forehead.”

“It could be, sir,” Interrogator #2 said. He conceded he had heard of an “air lock technique,” where a detainee was forced to stand with their hands held outside a hole in the outer door of their cell. The differences with Khadr’s case and the “air lock” is that Khadr was shackled with his hands held at forehead height, not straight out, and the “air lock” doesn’t involve shackling. “But they put their hands through, and stay there?” “Yes,” Interrogator #2 said.

That’s directly relevant for this hearing. If the defense can show that Khadr was abused early in his detention, it stands a greater chance of persuading Col. Patrick Parrish, the military judge presiding over the case, to rule that Khadr’s statements to interrogators were unreasonably coerced — jeopardizing the government’s case not just against Khadr, but potentially against other detainees tried before military commissions.

Interrogator #2 also described other techniques allowed for interrogators at Bagram that appeared abusive. ”We could play music, yes sir. … Loud music, yes.” A report about Khadr contemporaneous with Interrogator #2′s time in Bagram said Khadr was “sedated” during an interrogation.  And Interrogator #2 chafed when Jackson asked if Bagram interrogators could use “stress positions,” replying that they were cleared to use something called “safety positions.”

“Well, first it was called stress positions, wasn’t it?” Jackson asked. “Yes, sir,” Interrogator #2 replied.

That raised Parrish’s interest: “Is there a difference?”

Interrogator #2 replied, “No, sir.”

Interestingly, Interrogator #2 assisted a figure we know only as “Interrogator #1,” the lead interrogator for Khadr, who will testify  – on behalf of the defense — to threatening Khadr with rape.

Whether that will actually happen is a different story. Much is in flux: The prosecution still has four more witnesses to call this week, as well as this afternoon’s cross-examination of someone we only know as “Interrogator #2,” an Army master sergeant who testified this morning to interrogating Khadr at Bagram. While the prosecution expects its remaining witnesses to testify fairly quickly — at least one of them is a medic who administered life-saving medical care to Khadr after he sustained severe gunshot wounds during his July 2002 capture by U.S. forces — this hearing so far has been characterized by unexpected procedural snags. Parrish has still not said anything in court to instruct counsel on whether his ordered psychological exam effectively stops the hearing after the government finishes presenting its witnesses.

(Unrelatedly, half an hour ago, the Defense Department announced that two Guantanamo detainees were transferred yesterday — under my nose! — to “the custody and control of the governments of Bulgaria and Spain.” No names have been provided. The detainee population now officially stands at 181.)

Still, Finley said that Khadr told him in a November 2002 interview at Guantanamo that sometime soon after he was captured — maybe by a soldier who captured him in Khost, maybe in Bagram — someone threatened him with torture. “That piqued my interest,” Finley told the prosecution. “I specifically asked him point blank [if he was] tortured — he was not tortured, only that he was told he was going to be tortured.” Finley said that he never found corroboration of Khadr’s account.

During cross-examination, Khadr attorney Kobie Flowers reminded Finley that an old report written by Finley’s FBI partner recounted that Khadr was “paranoid about guards” at Guantanamo. “In this situation, I’m sure he probably was, but I don’t recall him saying anything specific,” Finley said. “I don’t know why the statement was put in the notes, and I don’t know if you’re talking about Bagram or Guantanamo Bay.”

Why might Khadr fear Bagram guards? “If he was talking about — he was just captured, wounded, he was having some surgery and if someone told him ‘you are going to be tortured,’ I can understand why he might be concerned about that,” Finley said, but repeated that he was never able to corroborate Khadr’s account.