Traditionally, judicial and immigration proceedings have operated under a presumption of openness. In the aftermath of the Sept. 11 attacks, however, secrecy has become the default status for most proceedings even remotely connected to the war on terrorism. The changed climate has made it difficult for the American public and the news media to monitor the fairness and effectiveness of the Bush administration's antiterrorism policies.

The centerpiece of the administration's strategy has been a policy of massive, indefinite detention of hundreds, if not thousands, of people. Most of these detainees have never been charged with a crime and have never been given access to a lawyer. More than 500 are being held at the American naval base in Guantanamo Bay, Cuba, but others are confined in prisons in the United States. A Red Cross report indicates that hundreds of people are held in secret U.S. custody in detention centers across the world, as well.

Those detained include citizens and non-citizens alike. Some have been classified as "enemy combatants" and essentially have been held incommunicado without any legal process. Others have been arrested as material witnesses, often for reasons that have little to do with the purposes of the material-witness statute. A relative few have been prosecuted in American civilian courts, such as convicted Sept. 11 conspirator Zacarias Moussaoui. Finally, an unknown number of individuals -- mostly Arab or Muslim men -- have been arrested and, in many cases, deported on immigration charges.

Disappointingly, the American justice and immigration systems have largely accommodated the government's efforts to restrict public access in the name of protecting security interests. The U.S. Court of Appeals in Richmond (4th Cir.) in summer 2005 upheld a trial judge's refusal to unseal a search-warrant affidavit in a 2002 antiterrorism investigation in Northern Virginia. In April 2005, the U.S. Court of Appeals in Washington, D.C., closed a courtroom to hear arguments in an appeal brought by FBI whistleblower Sibel Edmonds, whose lawsuit was dismissed after the government asserted the "state secrets" privilege. And the U.S. Court of Appeals in San Francisco (9th Cir.) is considering whether to allow the government to file its briefs under seal in a lawsuit brought by privacy advocate John Gilmore over the secret rule requiring airline passengers to show identification.

With some notable exceptions -- including a military appeals court's ruling in February 2005 that so-called Article 32 hearings are presumed open -- judges, prosecutors, and other government officials have effectively limited public scrutiny of terrorism-related proceedings and documents.

Enemy combatants

Important Supreme Court decisions issued in 2004 are having an impact on litigation now pending in federal courts -- cases that may end up before the high court again in the coming year.

In three major cases decided on June 28, 2004, the U.S. Supreme Court invalidated much of the Bush administration's strategy for handling so-called "enemy combatants" who took up arms -- unlawfully, the Bush administration says -- against the United States. While the full impact of the court's decisions remains unclear, the rulings appear to ensure at least some degree of media scrutiny of what had previously been an entirely secret process. The press has been permitted to cover at least part of the administrative detainee proceedings conducted at Guantanamo in the wake of the Supreme Court rulings.

Two of the cases, Hamdi v. Rumsfeld and Rumsfeld v. Padilla, addressed the rights of U.S. citizens, while a third, Rasul v. Bush, concerned the nearly 600 foreign nationals detained at the American naval base in Guantanamo Bay, Cuba.

In Hamdi v. Rumsfeld, the justices examined the case of Yaser Esam Hamdi, an American citizen who was allegedly captured in late 2001 while fighting for the Taliban in Afghanistan. Hamdi, a Saudi national, was held for nearly three years in a military brig in Charleston, S.C., but never charged with a crime.

By an 8-1 margin, the justices agreed that Hamdi must at least be given the opportunity to contest the government's factual claims before a "neutral decision-maker." But the court's multiple opinions left some doubt as to what might satisfy that standard. A plurality opinion authored by Justice O'Connor suggested that an "appropriately authorized and properly constituted military tribunal" might suffice.

Hamdi was released from custody and sent back home to Saudi Arabia in October 2004. Justice Department officials refused to discuss the case publicly except to say Hamdi no longer posed a threat, The Washington Post reported.

In Rumsfeld v. Padilla, the justices voted 5-4 to dismiss the case of Jose Padilla, another U.S. citizen whom President Bush has branded an enemy combatant, on procedural grounds. Padilla was arrested in May 2002 for allegedly plotting to detonate a so-called "dirty bomb" in the United States. He has not been charged with a crime, yet he remains confined in a South Carolina military brig.

The high court ruled that Padilla's habeas corpus case should have been filed in South Carolina rather than New York, a procedural defect that his attorneys vowed to cure immediately. In July 2004 they did so, re-filing the lawsuit in U.S. District Court in Charleston, S.C.

On Feb. 28, 2005, a federal judge in that state ruled that the president had no authority to hold Padilla as an enemy combatant and ordered the government either to charge Padilla with a crime or let him go. The government appealed the decision in Padilla v. Hanft to the U.S. Court of Appeals in Richmond, Va. (4th Cir.), which heard oral arguments on July 19. No opinion had been issued as of late August.

In Rasul v. Bush, the high court considered whether American courts can hear habeas corpus lawsuits filed on behalf of Shariq Rasul and 15 other terror suspects detained indefinitely in Guantanamo Bay, Cuba. The justices rejected the Bush administration's argument that federal courts lack jurisdiction because the detainees are not citizens and the military base in Cuba is outside the territorial sovereignty of the United States.

"Considering that the [habeas corpus] statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship," Justice John Paul Stevens wrote in the majority opinion. Justice Stevens added that the United States exercises "exclusive control and jurisdiction" over the naval base at Guantanamo, despite its location outside the United States.

More than a year after the decision in Rasul v. Bush, however, not a single prisoner has had a court hearing on whether he is being rightly detained. Instead, the military instituted two new processes -- combatant status review tribunals and administrative review boards -- at Guantanamo Bay following the Supreme Court decisions. Lawyers who represent detainees question the constitutionality of these administrative proceedings, which often rely on secret evidence to keep prisoners in custody. A federal appeals court in Washington, D.C., will consider the legality of the proceedings this fall in a case called Boumediene v. Bush.

Combatant status review tribunals

In the wake of the high court's ruling, the Bush administration scrambled to retain control of the detainees. In what appeared to be an effort to stem a potential flood of habeas corpus petitions, the Pentagon hastily announced the formation of "combatant status review tribunals" -- panels composed of three military officers -- to evaluate whether each of the then-approximately 585 detainees was properly classified as an enemy combatant. The review tribunals were announced on July 7, 2004, less than 10 days after the Supreme Court's decision in Rasul.

By the time they concluded, the tribunals determined that all except 33 of more than 560 Guantanamo detainees had been properly incarcerated, according to The New York Times.

Several Guantanamo prisoners challenged the constitutionality of the combatant status review tribunals in separate habeas corpus actions brought in federal district court in Washington, D.C. In January 2005, the lawsuits resulted in opposite rulings by two judges of that court, setting the stage for review by the U.S. Court of Appeals in Washington, D.C. this fall.

On Jan. 19, U.S. District Judge Richard Leon dismissed the habeas petitions of seven foreign Guantanamo detainees captured in Bosnia and Pakistan, ruling that the president has the power to detain them and the prisoners had no "cognizable" constitutional rights. Twelve days later, U.S. District Judge Joyce Hens Green ruled the opposite, concluding the detainees have valid constitutional claims and that the combatant status review tribunals violated their due process rights. Appeals in both cases were filed in March.

A three-judge panel of the U.S. Court of Appeals in Washington, D.C. was scheduled to hear oral argument in the combined cases, titled Boumediene v. Bush, on Sept. 8. Both sides were expected to address the impact of that court's July 15 decision in Hamdan v. Rumsfeld, in which the court held that the planned war-crimes trials, called military tribunals or commissions, at Guantanamo are legal. (See below)

Administrative review boards

In December 2004, the Pentagon unveiled a new process called "administrative review boards" to ascertain whether a detainee still poses a threat to the U.S. or still possesses valuable information. Like the combatant status review tribunals, each board is made up of three American military officers. Seventy enemy combatants had completed the annual process as of July 2005. Four of them were slated for release and 25 were to be transferred to the custody of their home country, according to the Pentagon; the remaining 41 will remain imprisoned. Administrative review board hearings had also been held for another 92 detainees, who were waiting for Deputy Defense Secretary Gordon England to approve the board's recommendations.

As with the combatant status review tribunals, detainees are not represented by lawyers at the administrative review boards. They are prohibited from seeing any classified evidence against them and they cannot call witnesses. About half the detainees who underwent reviews had refused to attend, "many because they consider them unjust," Newsday reported in June.

In March, shortly after journalists were first let in to the administrative review hearings, the military stopped providing details of the allegations against each prisoner, The Associated Press reported. Officials previously had released "fact summaries" of the accusations that noted whether a detainee was connected to the Taliban or Al Qaeda. The military gave no reason for the change.

Officials allowed a reporter from Newsday to cover the review process for an unnamed 29-year-old Saudi on the condition that the paper not identify the detainee or participating officers. Newsday reported that "it was impossible . . . to draw conclusions about the threat potential" of the anonymous detainee based on the unclassified parts of the proceeding.

The Supreme Court's decision in Rasul had made clear, of course, that Guantanamo detainees had a right not to administrative proceedings, but to take their cases to federal court. Although the detainees were notified of this right shortly after the ruling, most were unrepresented by counsel and had no practical means of filing a habeas corpus petition.

Those detainees who were represented by lawyers -- usually pro bono counsel retained by family or friends in the United States -- often were not permitted to meet with their attorneys. Since then, the government has permitted lawyer-client meetings in certain cases. Nearly 200 Guantanamo detainees had lawsuits pending in federal court as of July 2005, according to The New York Times.

Military tribunals

Separate from the combatant status review tribunals and administrative review boards, which determine only whether there is a sufficient factual basis for a detainee's continued confinement, the Defense Department had planned to try a few of the Guantanamo detainees, who were actually charged with crimes, before military tribunals. Trial dates had not been set by late August 2005, however, as defense lawyers have asked the U.S. Supreme Court to review the July 15 decision in Hamdan v. Rumsfeld. In that case, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., rejected a challenge to the legality of the military tribunals, overturning a lower court decision.

President Bush had signed a Military Order on Nov. 13, 2001 authorizing the first American military tribunals since the World War II era. The tribunals -- or "commissions," as the military calls them -- were to try foreign terror suspects who were believed to have committed or plotted attacks against the United States.

Almost immediately, the broad scope of the President's order drew harsh criticism from legal scholars, the news media, and the international community. For example, law professors Neal Katyal and Laurence Tribe wrote in The Yale Law Journal in April 2002 that the President's order suffered from "dramatic problems," including "its authorization for the tribunals to operate in secret, without any publicity to check their abuses and with no threshold requirement of a showing that such secrecy is needed."

The military regulations implementing President Bush's order did little to cure these defects. The Pentagon's Military Commission Order No. 1, issued on March 21, 2002, established a procedural framework for the tribunals. It provided that the tribunals are to consist of between three and seven members, that the accused shall have the right to counsel, that the prosecution must share exculpatory evidence with the defense, and that the accused is presumed innocent.

On the question of media access to the tribunals, however, Military Commission Order No.1 was not terribly reassuring. The order recited that proceedings are to be open "except where otherwise decided by the Appointing Authority [a position now filled by John Altenburg, Jr.] or the Presiding Officer." It then listed a number of potential grounds for closing proceedings, including to protect the physical safety of participants and to prevent disclosure of "information protected by law or rule from unauthorized disclosure" -- a standard that seemed to encompass non-classified information.

Military Commission Order No. 1 also specified that the identified grounds for closing proceedings are not exhaustive. Rather, it provides that the presiding officer has discretion to close any proceeding or restrict the release of information when he sees fit.

For nearly two years after the issuance of Military Commission Order No. 1, there seemed to be little tangible progress toward actually convening the military commissions. During this time, the Defense Department designated several detainees as "eligible" for standing trial and appointed their defense lawyers, but it did not initiate proceedings. The most significant development was the May 2003 issuance of Military Commission Instructions No. 1-8, which added more details to the tribunal process and defined the substantive elements of certain crimes.

Finally, on Feb. 24, 2004 -- well over two years after the first detainees arrived at Guantanamo -- the military charged two of them with crimes. The men, Ali Hamza Ahmed Sulayman al-Bahlul of Yemen and Ibrahim Ahmed Mahmoud al-Qosi of Sudan, were charged with conspiracy to commit war crimes for the alleged roles as al Qaida associates. In the following weeks, the Pentagon designated an additional 13 men as subject to tribunals, but only four were approved for trial -- Bahlul, Qosi, David Hicks of Australia, and Salim Ahmed Hamdan of Yemen, who served as a driver for Osama bin Laden.

Preliminary hearings in those four cases were held the week of Aug. 23, 2004. About 60 members of the news media arrived at Guantanamo to cover the hearings, but all were required to sign "ground rules" imposing significant restrictions on the scope of their coverage.

Among other things, the ground rules stated that journalists can be excluded from any hearing at any time without explanation, that any information deemed classified or otherwise "protected" will not be released, and that no audio or videotaping or photography is allowed. Additionally, the Pentagon required journalists to agree not to disclose the identities of prosecutors, defense counsel, witnesses, and commission personnel without prior approval.

The proceedings were halted abruptly in November 2004 when U.S. District Judge James Robertson, acting on a habeas petition filed by Hamdan seven months earlier, ruled that the tribunals were unlawful and that Hamdan could not be tried unless it was first determined that he was not a prisoner of war under the 1949 Geneva Convention.

In a 45-page opinion, Robertson found it "troubling" that unlike courts-martial, the accused can be excluded from military tribunals. Hamdan also will never learn of any classified evidence against him -- even his lawyer is forbidden to disclose it.

"It is obvious beyond the need for citation that such a dramatic deviation from the confrontation clause [of the Constitution] could not be countenanced in any American court," Robertson wrote.

The government asked for expedited review of the decision by the U.S. Court of Appeals in Washington, D.C., while lawyers for Hamdan, hoping to sidestep review by the intermediate appellate court, asked the Supreme Court to take the case. The high court declined without explanation to do so, enabling the government's appeal to proceed before the D.C. Circuit, which heard oral arguments in March.

A three-judge panel that included Supreme Court nominee John Roberts reversed Judge Robertson's ruling on July 15. After determining that Congress authorized the president to establish the military tribunals, the appeals court held that Hamdan had no right to enforce the Geneva Convention in court -- and that even if the treaty could be so enforced, "it does not apply to al Qaeda and its members," Judge A. Raymond Randolph wrote. Senior Judge Stephen Williams, the third member of the panel, disagreed with that conclusion, although he concurred in the judgment.

In August, Hamdan's lawyers filed a petition for certiorari with the U.S. Supreme Court. If the high court decides to hear the case this term, it will issue an opinion by the summer of 2006. In the meantime, the military tribunals for Hamdan, Hicks and two others remain on hold.

History of military tribunals

Military tribunals have been used occasionally in U.S. history. They were used to try American citizens a handful of times, and occasionally to try foreign nationals who were accused of committing war crimes. The U.S. Supreme Court has addressed the issue of tribunals several times and has permitted them to be used, but only in limited circumstances.

The first Supreme Court case to consider the use of a military tribunal was Ex Parte Vallandigham in 1863. Clement Vallandigham was a U.S. citizen living in Ohio during the Civil War. Maj. Gen. Burnside, commander of the Ohio militia, had declared that any person who expressed "sympathies for the enemy" would be tried for treason. Vallandigham was arrested for saying that the war was "wicked, cruel and unnecessary," and that it would "crush liberty" and establish "despotism." He was tried by military tribunal, convicted and imprisoned.

Vallandigham appealed to the Supreme Court. He argued that the military tribunal had no jurisdiction to try him. The Court denied review, finding that it did not have the authority to hear the case for procedural reasons, even if it thought that the military had acted improperly.

A different result occurred in Ex Parte Milligan in 1866. Milligan was a U.S. citizen living in Indiana. Gen. Alvin P. Hovey ordered that Milligan be arrested and tried for his membership in an organization known as the Sons of Liberty. Hovey believed that group members, including Milligan, conspired to overthrow the U.S. government and that Milligan gave aid to insurgents. Milligan was convicted and sentenced to be hanged. He then sought a writ of habeas corpus and argued that the military had no jurisdiction to try him.

The Court began by noting that emotions had run high during the war and that improvident decisions had been made. "During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question," the Court wrote.

The Court said the U.S. Constitution governs "equally in war and in peace." It found that the use of a military tribunal was improper.

The Court noted that during the War of 1812, U.S. "officers made arbitrary arrests and, by military tribunals, tried citizens who were not in the military service. These arrests and trials, when brought to the notice of the courts, were uniformly condemned as illegal."

At the end of the Civil War, however, a group of insurgents conspired to assassinate President Abraham Lincoln and other government officials. The accused conspirators were tried by military tribunal, despite the ruling in Milligan.

As a practical matter, it seems that military tribunals were used despite the questions as to their constitutionality. Their use was again questioned before the Court during World War II in the case of Ex Parte Quirin in 1942.

In Quirin, a group of Nazi saboteurs attempted to sneak into the United States to destroy strategic domestic targets. They were captured almost immediately and tried by military tribunal. Defense lawyers argued that the accused spies were entitled to a speedy and public trial by an impartial jury, as well as the other constitutional protections contained in the Bill of Rights. The attorney for the spies, relying on Milligan, argued that the Constitution applied even during war.

By the time the case was appealed to the Supreme Court, there was a great deal of political pressure to uphold the convictions. The Quirin decision upheld the use of a military tribunal as used under the specific circumstances of that case, because the accused spies were "unlawful belligerents."

Nevertheless, many experts argue that Quirin does not provide blanket authorization for the use of military tribunals. The Court entered a brief order upholding the tribunals shortly after the arguments, but did not issue a full opinion until many months later. Scholars say some justices, particularly Harlan Stone and William Douglas, later regretted the ruling.

In writing the opinion, Stone admitted that "a majority of the full Court are not agreed on the appropriate grounds for the decision." The Court also recognized that some offenses cannot be tried by a military tribunal because they are not recognized by our courts as violations of the law of war or because they are in the class of offenses constitutionally triable only by a jury.

Although the Quirin decision appears to authorize military tribunals for "unlawful belligerents," the court failed to articulate specific criteria that must be present in order for a military tribunal to be valid.

The Court said: "We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here . . . were plainly within those boundaries."

The Court narrowed its decision to avoid any sweeping statement regarding military jurisdiction and provided little guidance for application to future cases.

In 1946, the Court ruled in Application of Yamashita that military commissions may be used during war to try enemies captured overseas for violations of war laws. The Court in that case upheld the conviction by military tribunal of a Japanese military officer during World War II.

Justice Francis Murphy, however, wrote a dissenting opinion in which he expressed concern that military tribunals were improper because they failed to provide an accused with the procedural protections required in American courts.

Later that year in Duncan v. Kahanamoku, the Court ruled that military tribunals could not be used to try citizens, even when martial law had been declared in Hawaii after Pearl Harbor had been attacked. The Court found that due process protections of American courts were still necessary.

In Hirota v. MacArthur, the Court considered habeas corpus petitions from citizens of Japan who were being held in custody pursuant to the judgments of a military tribunal in Japan after World War II. The tribunals had been set up by U.S. Army Gen. Douglas MacArthur, but his actions had been authorized by the Allied Powers and the tribunals were condoned by all of the Allied nations. Many of the judges, in fact, came from other Allied nations.

The Court ruled that it had no jurisdiction to hear the petitioners' claims because the tribunal was "not a tribunal of the United States." It was an international tribunal in which the United States happened to play a lead role.

In 1950, the Court's decision in Johnson v. Eisentrager again confirmed the use of military tribunals. In Johnson, a group of Germans who had been captured in China during World War II challenged their trial and conviction by military tribunal. The Court held that nonresident aliens have no right of access to American courts during wartime, and, therefore, they may be tried by military tribunal.

A few years later, the Court upheld the conviction of an American citizen who was tried for murder by a military tribunal. In Madsen v. Kinsella, the Court ruled that the wife of an American soldier could be tried by military commission for murdering her husband while in U.S.-occupied Germany after World War II.

However, in a later case, Reid v. Covert, the Court ruled that the military could not try dependents of American soldiers in military courts, at least in capital cases. The Reid case also involved the trial of an American woman who was charged with allegedly killing her husband, a member of the U.S. military.

The late-1950s cases of Reid and U.S. ex rel. Toth v. Quarles expressed a certain distrust of the military and found it an unsuitable forum for fair trials.

In Toth, the Court held that a person who was in the military but who has since been discharged may not be subject to trial by court-martial, even if the alleged crime occurred while the accused was in the military. The Court noted that the federal court system was constitutionally preferable to a military court and did not want to expand the jurisdiction of the less-preferred system.

Such distrust of military justice was confirmed in O'Callahan v. Parker. O'Callahan involved an ordinary court-martial rather than a military tribunal. The Court held that a crime must be related to military service to come under military jurisdiction. Although the defendant was a member of the armed forces, the alleged crime was committed off base and while off duty. The Court recognized that military discipline has its proper place, but the "expansion of military discipline beyond its proper domain carries with it a threat to liberty."

The Supreme Court has never directly addressed whether the press or public should have a right of access to military tribunals, but history shows that the press has had access to many of them.

Military tribunals were used during the Civil War to prosecute dissidents. These tribunals were secret and failed to follow any established procedures. But when the Supreme Court invalidated the tribunal used in Ex Parte Milligan, it derided the numerous constitutional violations that had occurred, including the violation of the right to a speedy and public trial.

Most of the World War II tribunals were open to the press and public. The tribunal that tried Yamashita permitted the press to attend most of the proceedings, and the Nuremberg tribunal that prosecuted Nazi war criminals was open to the press as well. And in both the Nuremberg and Tokyo tribunals, the identities of the judges were known.

The only World War II tribunal that was closed was the trial of the eight German saboteurs that resulted in the Quirin decision. It is likely, however, that the Quirin case was closed because the government was trying to keep secret the fact that the saboteurs were caught only because two of the Germans turned themselves in, and not because the government knew about their sabotage plan.

Since the Quirin case, many of the participants have expressed their doubts and concerns about the wisdom of both the use of a military tribunal as well as the propriety of the closure of the case. While the other World War II-era trials were perceived to be legitimate justice, the Quirin case has been questioned and ridiculed.

Material-witness detentions

Many of the people detained as part of terror investigations are never charged with a crime. Instead, the Bush administration appears to be using the federal material-witness statute as a kind of "preventive detention" for Arab or Muslim men whom authorities suspect of terrorist connections but lack evidence to charge. That approach is at odds with the purpose of the statute, which is to authorize the brief detention of witnesses to ensure that they appear to give testimony.

According to a June 27, 2005 New York Times story, Human Rights Watch and the American Civil Liberties Union have identified at least 70 cases in which people were detained as material witnesses in a terrorism investigation. Of those, all but one were Muslim men. The Times reported that 42 of the 70 men were released without charges being filed, 20 were charged with non-terrorism-related offenses, and four were convicted of supporting terrorism -- including Zacarias Moussaoui, who pleaded guilty in April. Two men, Jose Padilla and Ali Saleh Kahlah al-Marri, were detained as material witnesses and were later designated unlawful enemy combatants.

Because individuals detained as material witnesses are not charged with a crime, at least initially, the news media faces an uphill battle in trying to learn of their stories. Their arrests generate little or no public record, even though they can result in imprisonment under harsh conditions for months. When such stories are reported, it is often because the material witness is eventually released and makes his account public.

One of the most notorious material-witness cases is that of Oregon lawyer Brandon Mayfield, a converted Muslim who was wrongly accused of involvement with the March 2004 train bombing in Madrid and jailed for two weeks on a material witness warrant. Attorney General Alberto Gonzales acknowledged in April 2005 that the FBI had used parts of the controversial PATRIOT Act to secretly investigate Mayfield, who was cleared of any wrongdoing.

In another instance, The New York Times reported on Aug. 19, 2004, that Abdullah al Kidd, a U.S. citizen, was arrested as a material witness at Dulles Airport while waiting to board a flight to Saudi Arabia to pursue graduate studies. Kidd was held in solitary confinement for two weeks. He was then released but ordered by a judge to remain within the four-state territory of Idaho, California, Nevada and Washington. As a result, Kidd lost his graduate scholarship and his marriage dissolved. He was never charged with a crime or asked to testify in any proceeding.

Other prominent material-witness cases to be made public include those of James Ujaama and Maher "Mike" Hawash. Ujaama, a Seattle computer technician, was detained on July 22, 2002, as a material witness. Ujaama was also the subject of a Virginia grand jury investigation into whether he provided material support, including computer equipment, to the Taliban. Citing grand jury secrecy, a U.S. magistrate in Denver, Craig Shaffer, denied a request by The Denver Post and the Rocky Mountain News for access to a July 26, 2002 material witness hearing in Ujaama's case.

On Aug. 23, 2002, a federal court in Virginia held another hearing on the validity of Ujaama's detention. The hearing was closed, but various news organizations again sought access -- again, unsuccessfully. After a closed hearing, Ujaama was indicted on Aug. 29, 2002, for conspiracy to engage in terrorism-related activities. He pleaded guilty in April 2003, and was sentenced to two years in prison.

The case of Hawash, an Intel software engineer from Portland, Ore., was similarly secret. Hawash was detained as a material witness in February 2003, but the government did not acknowledge his confinement until April 2003, when he was charged with conspiring to aid al-Qaida and the Taliban. The government alleged that Hawash had attempted to enter Afghanistan to fight with the Taliban, and, after failing to enter the country, conspired to plot terrorist activity with others in the Portland area.

On August 6, 2003, Hawash pleaded guilty to providing material support to the Taliban, and agreed to testify against his co-conspirators in exchange for a reduced sentence. He was sentenced on Feb. 9, 2004, to seven years in prison.

Although Hawash was eventually charged with a crime, critics have condemned the use of the material witness statute as a form of preventive detention. David Fidanque, executive director of the ACLU in Oregon, told the San Jose Mercury News that the government "used it as a form of preventative detention while they were taking their sweet time getting their ducks in a row." Fidanque questioned the need for a secret detention, noting that "if they had probable cause to indict him, they should have indicted him at the time [he was detained as a material witness]."

Despite the efforts of the news media and human rights organizations to document abuse of the material-witness statute, it remains unknown just how widespread such examples are. The government's expansion of the statute's purpose and its steadfast refusal to provide information about who has been detained make it very difficult for the public or press to monitor the detention of material witnesses.

Media access to terror prosecutions

In the relatively few cases where the government has seen fit to file criminal charges, rather than operate through the material-witness or enemy-combatant designations, federal prosecutors have aggressively sought to restrict public access to the proceedings. Frequently, judges have acceded to such requests, deferring to the government's claims that the secrecy is justified by post-Sept. 11 concerns about national security. Even in cases where no arrests have been made, courts have refused to allow access to what are normally public documents.

In March 2002, federal agents applied for warrants to search Islamic businesses and charities in Northern Virginia as part of an ongoing antiterrorism investigation. In support of each application they submitted the same 100-page affidavit by a U.S. customs agent, describing the investigation. They asked Magistrate Judge Theresa Buchanan of the federal district court in Alexandria, Va. to seal the affidavit, saying disclosure could threaten the ongoing probe. Buchanan granted the government's request.

Reporters for The New York Times and the Tampa Tribune, who asked to see the affidavit after the searches were conducted, were denied access to the document -- even though under the Federal Rules of Criminal Procedure, affidavits filed in support of an application for a search warrant usually become part of the public case file after the warrant is executed and returned.

The newspapers asked the judge to unseal the affidavit but she refused. The Times and Media General Operations, Inc., owner of the Tampa Tribune, then petitioned the district court to unseal the affidavits. They also asked the court to direct the clerk's office to keep a public docket of search-warrant proceedings, after media lawyers were shown a ledger book, kept behind the counter at the clerk's office, that contained serial numbers and the words "sealed case" but no information as to what was in the docket.

The district court dismissed the petition, prompting the Times and Media General to appeal to the U.S. Court of Appeals in Richmond, Va. (4th Cir.). Fourteen media outlets, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in support of the appeal.

In October 2003, Dow Jones & Co., publisher of The Wall Street Journal, asked Buchanan to release the affidavits because the government had admitted that changed circumstances no longer required the documents to be sealed in their entirety. After a hearing on the motion, Buchanan allowed a redacted version to be disclosed to the public. The appeal by the Times and the Tribune remained before the Fourth Circuit, however.

A three-judge panel of that court ruled on Aug. 1, 2005 that the government's interest in protecting the ongoing investigation justified sealing the search-warrant affidavit, which contained "sensitive details." The court accepted Judge Buchanan's reason for sealing the affidavits even though she voiced the reason after she sealed them.

Rules requiring judges to base a decision to seal on specific factual findings and to state the reasons for rejecting alternative measures to sealing are "for the benefit of the court, not the public," and the reasons for sealing the affidavits in this case were "patently apparent" from the documents themselves, Judge H. Emory Widener Jr. wrote for the court.

In a concurring opinion, Judge M. Blane Michael noted that Buchanan erred in failing to justify her decision to seal the affidavits until after the media filed a motion to unseal them. The error was harmless, however, "because the judge subsequently explained that the sealing was justified for reasons that were apparent to her at the time the order to seal was entered," Michael wrote.

The panel also refused to order the federal court clerk's office in Alexandria to keep a public docket of search-warrant proceedings.

As of Aug. 25, the newspapers had not appealed the Fourth Circuit's decision.

On Jan. 12, 2004, federal prosecutors in Minneapolis charged Mohammed A. Warsame with providing material support to al Qaeda only after Warsame had already been detained for more than a month in secret custody. When the Minneapolis-based Star-Tribune reported Warsame's identity, U.S. Attorney Tom Heffelfinger vowed to prosecute the law enforcement officials who had leaked the information. The case, which is still pending, has largely been conducted behind closed doors.

In Albany, N.Y., federal prosecutors invoked the Classified Information Procedures Act (CIPA) to try to withhold evidence not only from the public, but also from the defendants -- two Muslim men who had been charged with money laundering in support of terrorism. The unusual request came a day after the Albany Times Union ran a front-page story exposing translation errors in a document that prosecutors had cited as establishing a link between the men and terrorists in Iraq.

In perhaps the most prominent post-9/11 terror case, however, the federal judge presiding over the trial of convicted Sept. 11 conspirator Zacarias Moussaoui in Alexandria, Va. has been largely skeptical of the government's requests for secrecy. U.S. District Judge Leonie Brinkema ruled in October 2003 that prosecutors could not introduce evidence related to the Sept. 11 attacks or seek the death penalty if they refused to give Moussaoui access to potentially exculpatory witnesses held in U.S. custody. Most of Brinkema's order was later overturned by the U.S. Court of Appeals in Richmond, Va. (4th Cir.). In September 2004, the federal appeals court released a heavily redacted opinion that allowed Moussaoui to submit written questions to other detainees, The Washington Post reported.

The Moussaoui case has been a prominent testing ground for the question of media access to terrorism prosecutions. In January 2002, Court TV and C-SPAN petitioned Judge Brinkema to allow "gavel to gavel" television coverage of the trial, despite a federal rule barring television cameras from federal courtrooms. The companies, supported by other media entities including the Reporters Committee, argued that the rule unconstitutionally discriminated against the television media. Judge Brinkema denied the request.

Judge Brinkema has generally taken a measured approach to allowing public access to court filings in the case. In April 2003, she issued an order establishing guidelines on public access to case filings and requiring the government to justify secrecy concerns when it sought to seal documents. Most pleadings from both sides have been released on a redacted basis.

The U.S. Court of Appeals in Richmond, Va. (4th Cir.) has also made efforts to accommodate the public's right of access, holding bifurcated oral arguments in May 2003 and December 2003 to allow the press to monitor the portion of the hearing in which classified information was not discussed. The briefs filed with the court of appeals were released after redaction, and the court's opinion was public.

Moussaoui became the first person in the U.S. convicted in connection with the Sept. 11 attacks when he pleaded guilty in April 2005 to six terrorism-related conspiracy charges. Jury selection for the sentencing phase of the proceedings, which could result in the death penalty, is scheduled to begin in January 2006.

M.K.B. v. Warden

The government has also taken a secretive approach toward the hundreds of men of Arab descent who were arrested on minor immigration charges after Sept. 11. In perhaps the most dramatic such case, an Algerian-born Florida resident named Mohamed K. Bellahouel was secretly jailed by U.S. authorities for five months in late 2001 and early 2002, apparently because he had worked at a restaurant frequented by two of the Sept. 11 hijackers. When Bellahouel filed a habeas corpus petition challenging his captivity, the federal courts withheld the case from the public docket as though it didn't exist.

The existence of Bellahouel's lawsuit became known only after a clerk at the U.S. Court of Appeals in Miami inadvertently placed it on a public calendar, where reporter Dan Christensen of the Daily Business Review noticed it. Christensen wrote a series of articles in the spring of 2003 about the case. Then, in June 2003, Bellahouel's public defender filed a heavily redacted petition for review with the U.S. Supreme Court.

The petition argued that the lower courts had violated the First Amendment and common law by sealing all pleadings in Bellahouel's case without articulating any findings to support such secrecy. According to the petition, the case had originally been left off the public docket in its entirety, and it had later been added to the docket by order of the appeals court, but with 63 of the 65 entries denoted as "SEALED."

On Nov. 5, 2003, the Reporters Committee filed a friend-of-the-court brief urging the Supreme Court to review the case in order to clarify that the public and press have a right of access to habeas corpus proceedings. Two months later, a coalition of 23 media and public interest organizations -- including the Reporters Committee, The New York Times, The Washington Post, Gannett, Knight Ridder, Hearst, ABC News, and CNN -- asked to be added as parties to the case.

The unusual request to intervene at the Supreme Court level, rather than at the trial court, was made necessary by the unique circumstances of the case, the media coalition argued: "Because of the exceptional secrecy surrounding this case, [the coalition members] were unaware of its very existence when it was being litigated in the district court, and were therefore unable to move to protect their interests by intervening there."

Making the case even more unusual, the Solicitor General's office filed a completely sealed response brief on January 5, 2004. Prominent First Amendment lawyer Floyd Abrams said in news accounts that he could not recall a single other case in which the U.S. government's position in a Supreme Court case was entirely secret.

On Feb. 23, however, the justices denied Bellahouel's petition for review, denied the news media's motion to intervene, and granted the government's motion to file a completely secret brief, all without comment. In short, the court allowed the extraordinary secrecy in the case to stand.

The Bellahouel case continues to have an impact, however. On Aug. 23, 2004, People for the American Way sued the Justice Dept. to obtain release of redacted records of secret court proceedings against Sept. 11 detainees. The lawsuit "was prompted by the case of Mohamed Kamel Bellahouel, one of hundreds of Middle Eastern men detained by DOJ after the 9-11 attacks," the organization said in a news release. That case is now pending in U.S. District Court in Washington, D.C.

Super-sealing cases in federal court is "not as rare as it seems on its face," a Justice Department lawyer said during a hearing in March, explaining the government's difficulty in complying with PFAW's Freedom of Information Act request.

Attorney Marcia Berman cited the "many material witnesses who were picked up and arrested" immediately after Sept. 11 as the reason for the number of cases sealed in their entirety, according to a transcript of the March 17 hearing. "But also in a lot of those cases, the government did ask for a proceeding or just an arrest warrant to be sealed," Berman added.

Media access to court-martial proceedings

This past year, the military has guarded secrecy in court proceedings against American servicemen accused of abusing prisoners. In October 2004, for example, the Navy refused to identify two SEAL members who were to face military trial, called court-martial, for allegedly assaulting a prisoner at Abu Ghraib who later died. One of the SEALs, Lt. Andrew Ledford, was identified just before his trial began in May in San Diego, Calif. An unnamed CIA official testified from behind a floor-to-ceiling curtain during the court-martial for Ledford, who was acquitted.

In another case, the press was denied access to a December 2004 preliminary hearing, called an "Article 32" hearing, at Ft. Carson, Colo., to determine whether three Army soldiers would stand trial for allegedly murdering an Iraqi general during interrogation. Maj. Gen. Abid Hamed Mowhoush suffocated inside a sleeping bag in November 2003 while in U.S. custody in Qaim, Iraq.

After convening in open session, Capt. Robert Ayers closed the Dec. 2 proceeding -- held pursuant to Article 32 of the Uniform Code of Military Justice -- to hear evidence from a security specialist, who advised Ayers that classified matters were linked to the investigation. Ayers shut out the public and press from the entire proceeding for the rest of the day while he heard testimony from several other witnesses.

The Denver Post challenged the closure to the U.S. Army Court of Criminal Appeals, which stayed the Article 32 hearing on Dec. 3 while the newspaper's appeal was pending. The Post later filed a brief arguing that the First Amendment provides a qualified right of public access to courts-martial. The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief supporting the newspaper's appeal.

The Arlington, Va.-based court agreed with the media, ruling on Feb. 23 that Ayers should have tailored the closure order narrowly to prevent disclosure of classified information. Closing the entire proceeding was "ill-considered, overbroad, and clearly erroneous," the court stated, since a review of the transcript revealed that in only "a few instances" was the testimony so intertwined with classified data that it justified closure.

The government, which submitted secret documents to support its position, had contended the law was unclear whether the same standards for closure of courts-martial governed the pretrial Article 32 proceedings. But the court held that -- as with a trial -- an officer conducting an investigatory hearing must consider the substance of the testimony witness by witness, and determine that all of a witness's testimony will disclose classified information before he can shut out the public and press. Otherwise, the witness must testify in open session as to non-classified information.

Although the court did not order Ayers to re-hear the testimony given behind closed doors, it directed him to release a transcript of the Dec. 2 proceeding to the public, with the portions containing classified information redacted. The Article 32 hearing resumed in March.

Describing interrogation methods at the Qaim facility where Mowhoush was held, a Utah National Guardsman testified in closed session that CIA interrogators beat Iraqi prisoners with a sledgehammer handle, according to a transcript obtained by the Post in July. Mowhoush was allegedly stuffed inside a sleeping bag and bound with electrical cord.

Court-martials for Chief Warrant Officer Jefferson L. Williams and Chief Warrant Officer Lewis E. Welshofer, both charged with murder, are set for this fall, The Washington Post reported.

On Dec. 3, 2004, President Bush issued an executive order amending the rule that governs closure of courts-martial, R.C.M. 806(b). The new rule, which took effect in January, provides that courts-martial be open to the public unless (1) there is a "substantial probability" that openness will threaten a more important interest, such as a defendant's right to a fair trial; (2) closure is "no broader than necessary" to protect that interest; (3) the military judge considered "reasonable alternatives" to closing the courtroom and found them insufficient; and (4) the judge makes "case-specific" findings on the record to support closure.

In addition, the new rule requires military judges to make findings on the record before excluding specific people from a courtroom. The findings have to show the reason for the exclusion and why the judge believes exclusion is necessary, and that the exclusion "is as narrowly tailored as possible."

Closure of immigration proceedings

Immigration and naturalization proceedings have been handled by INS administrative courts operated by the Justice Department rather than federal district courts. The administrative regulations provide that the proceedings "shall" be open to the public, but permit closure if necessary for national security or privacy reasons.

On Sept. 21, 2001, Chief Immigration Judge Michael Creppy issued a memorandum to all immigration judges and court administrators. The memorandum stated that "the Attorney General has implemented additional security procedures for certain cases in the Immigration Court." It directed judges to close immigration hearings and avoid "disclosing any information about the case to anyone outside the Immigration Court." The rule also restricts immigration court officials from confirming or denying whether a particular case exists on the docket.

The Creppy memorandum appeared to mandate an across-the-board closure policy that departed drastically from the previous practice that each immigration case is evaluated on its own merit to determine whether closure is necessary. In response to lawsuits from media and public interest organizations, two federal courts of appeals reached conflicting decisions on whether the policy in the Creppy memorandum was constitutional. The U.S. Supreme Court declined to hear the case, meaning the circuit split remains.

Sixth Circuit: Across-the-board closure is unconstitutional

On Jan. 28, 2002, the Detroit Free Press and the Ann Arbor News filed a lawsuit in U.S. District Court in Michigan challenging the closure of immigration proceedings. The next day, the American Civil Liberties Union filed a similar lawsuit in Detroit. The ACLU's lawsuit was filed on behalf of two newspapers, The Detroit News and the Metro Times, and Rep. John Conyers (D-Mich.). Conyers and the two papers complained because they had been excluded from the deportation hearing of Rabih Haddad, a Muslim community leader suspected of raising money for terrorist activities.

Both lawsuits alleged that the immigration proceedings relating to Rabih Haddad should be open to the public. The Free Press's suit asked for access to all future proceedings and for copies of transcripts of all past proceedings. On March 5, 2002, the two lawsuits were consolidated into Detroit Free Press v. Ashcroft.

A U.S. District Court judge in Detroit ruled April 3, 2002, that across-the-board closure was unconstitutional and Haddad's proceedings should be open. Judge Nancy G. Edmunds wrote in her opinion: "Openness is necessary for the public to maintain confidence in the value and soundness of the government's actions." Edmonds ordered the immigration court to release transcripts of the deportation proceedings against Haddad.

In August 2002, the U.S. Court of Appeals in Cincinnati (6th Cir.) issued an opinion strongly affirming the trial court ruling, finding that the across-the-board closure of immigration proceedings was unconstitutional. The court held that the First Amendment requires a presumption of openness that must be applied to immigration proceedings.

The desire to protect national security may be a "compelling interest" but the immigration judge had failed to make particularized findings to justify closure, and the Creppy Memorandum also failed to specify particular facts requiring closure, the court concluded. Most importantly, the court found that the Creppy Memorandum was not "narrowly tailored."

"The Government offers no persuasive argument as to why the Government's concerns cannot be addressed on a case-by-case basis," Judge Damon Keith wrote.

Haddad's deportation case continued, and he was eventually deported to Lebanon on July 14, 2003.

Despite the resolution of the Haddad case, the government may still seek to close immigration hearings. In August 2003, the government requested a closed hearing in the case of Nabil al-Marabh, a Detroit man once suspected of having links to al-Qaida leader Osama bin Laden. al-Marabh, once No. 27 on the U.S. government's terror watch list, had been detained on Sept. 19, 2001, just eight days after the Sept. 11 attacks.

After news organizations in Michigan filed a legal challenge to the government's attempt to close the al-Marabh proceedings, the government dropped its request for secrecy. A public hearing was held before Immigration Judge Robert D. Newberry in September 2003. On Jan. 21, 2004, Newberry ordered al-Marabh deported to Syria. The publicly available opinion states that Marabh had been "credibly linked to elements of terrorism" and posed a danger to U.S. national security.

Third Circuit: Blanket closure is justified

A media coalition also battled the blanket closures on immigration hearings in New Jersey, but with less success.

On March 6, 2002, North Jersey Media Group Inc. and the New Jersey Law Journal filed a lawsuit in U.S. District Court in New Jersey. Like the ACLU lawsuit in Michigan, the New Jersey suit challenged the constitutionality of Creppy's order.

On May 29, 2002, U.S. District Judge John Bissell ruled that the across-the-board closure of immigration proceedings was unconstitutional. Bissell found that the First Amendment right of access was infringed by a blanket closure order and declared that proceedings should not be closed unless there is a showing of a particular need on a case-by-case basis.

Bissell's ruling was appealed to the U.S. Court of Appeals in Philadelphia (3rd Cir.), which heard arguments in September 2002. The following month a split panel of the Third Circuit court issued its ruling, finding that blanket closure of immigration courts was justified by the potential threat to national security.

The Third Circuit found that the First Amendment right of access can apply to administrative proceedings such as immigration hearings, but it must consider the "experience and logic" of allowing access to a particular type of proceeding before determining if the right actually applies. The court noted that "Congress has never explicitly guaranteed public access" to immigration proceedings.

Furthermore, because some cases have upheld closure of specific immigration proceedings, the court ruled that there was not an "unbroken, uncontradicted history" of openness that would require a presumptive right of access under Richmond Newspapers.

The court also found that the "logic" of allowing access, which the Supreme Court has said depends on "whether public access plays a significant positive role in the functioning of the particular process in question," does not mandate openness because of the negative effects access would have.

The court stated that the September 11 attacks changed our "national life," making national security a primary concern. Therefore, the court found, "to the extent open deportation hearings might impair national security, that security is implicated in the logic test." The court rejected the argument that openness should be favored as long as openness played a positive role in the proceeding, finding that a court must also evaluate whether "openness impairs the public good."

The court held that the government presented "substantial evidence that open deportation proceedings would threaten national security." It relied entirely on the affidavit of Dale Watson, an FBI counterterrorism and counterintelligence expert, who listed seven concerns with openness: (1) open proceedings would reveal sources and methods of investigation; (2) terrorists would be able to learn how others have entered the United States illegally; (3) terrorists could learn which members of cells had been detained; (4) it may motivate terrorists to accelerate the timing of attacks; (5) public hearings could permit terrorists to create false or misleading evidence, or destroy evidence, or tamper with witnesses; (6) detainees have a privacy interest in keeping secret their involvement in a government investigation; and (7) to prove the need for secrecy on a case-by-case basis would require the government to divulge sensitive information. Although the court agreed that some of those concerns were speculative, the court stated that it was "quite hesitant to conduct a judicial inquiry into the credibility of these security concerns, as national security is an area where courts have traditionally extended great deference to Executive expertise."

In a dissent, Judge Anthony Scirica said that he found that "experience and logic" show a long history of access to immigration proceedings and an important public interest served by such access. In addition, the harms the government warns of can be addressed through a case-by-case determination of the need for sealing orders, and do not merit a blanket prohibition on access.

Showing just how divisive the case was in the Third Circuit, a petition for rehearing by the entire court was voted down in a 6-5 vote on Dec. 2, 2002 -- with Scirica voting against rehearing.

On Feb. 28, 2003, the media parties petitioned the U.S. Supreme Court to review the Third Circuit's decision. However, on May 27, the Supreme Court decided not to review the case. The Court's failure to review the case means that the split in the Circuits will remain.

Although the Supreme Court did not disclose its reasoning in rejecting review, the Solicitor General had urged the Court not to take the case, arguing that there was no right to attend deportation hearings and the issue was moot, anyway, because most hearings had already taken place.

Other immigration proceedings

Individual detainees have challenged the Creppy memorandum as well, with mixed results. On Feb. 28, 2002, Malek Zeidan filed a complaint in U.S. District Court in New Jersey challenging the Creppy Memorandum as it applied to his removal proceedings.

Zeidan, a Syrian with an expired visa, had been living in New Jersey. He was arrested on Jan. 31, 2002, by INS agents. A closed hearing was held three weeks later. His lawyer, Bennet Zurofsky, challenged the closure rule during the hearing. When the immigration judge refused to open the case, Zeidan's suit was filed in U.S. District Court.

The complaint alleged that the closure of his case violated his due process rights and was contrary to protections in INS regulations and the Administrative Procedures Act. In March 2002, after the suit was filed, the government removed the "special interest" designation from his case. Because the issue was deemed to be moot, the Zeidan case was dismissed on April 16, 2002. Zeidan was released on bail.

Zurofsky filed an amicus curiae brief in the North Jersey Media Group case with Bissell. Zurofsky argued that the closure orders violate due process rights because they prevent detainees from defending themselves. The New Jersey Law Journal reported that Zurofsky's client wanted his cousin to attend the proceedings as a witness, but the secrecy order prevented it.

The Justice Department has defended the Creppy Memorandum, claiming that it is necessary for national security. However, the detainees' lawyers argue that because their clients have not been charged with terrorism, the national security concerns are not so strong.

Although there have been at least 600 -- and possibly more than 750 -- secret immigration proceedings, few of the detainees have been identified.

The Village Voice reported on the case of Muhammad Qayyum, a Pakistani citizen who was detained in a raid on a mosque, held for three months without legal representation and questioned by various government agencies. He finally obtained lawyers who, after four months of appeals, were able to get him released on a bond. Qayyum's hearings were closed.

The Daily Illini reported that former University of Illinois student Ahmed Bensouda was arrested by the INS for having an outdated visa. His case was designated "special interest," his hearing was closed, secret evidence was used at the hearing and, reportedly, no transcript of the proceeding was made.

In Phoenix, Zakaria Soubra, a Lebanese student known for speaking out on behalf of Islamic causes, was arrested by the INS because he had too few college credits to maintain his student visa. Immigration judge Scott Jeffries closed the hearing and issued a gag order preventing anyone from speaking about the hearing or disclosing any information presented.

For the hundreds of detainees who have been arraigned or deported, justification for their detention has mostly been kept secret. Because of the high level of secrecy involved, a coalition of groups filed a Freedom of Information request with the INS, asking for the names of the detainees. When the INS refused to release the information, the groups, including the Reporters Committee, filed a lawsuit in U.S. District Court in Washington, D.C., asking the court to rule that the names must be released. On Aug. 2, 2002, District Court Judge Gladys Kessler ordered the government to release the detainees' names. However, on June17, 2003, the federal Court of Appeals in Washington, D.C., ruled that the government did not have to release the names of the detainees.

In July 2003, the Office of the Inspector General for the United States Department of Justice issued a report that criticized government agencies for using "preventive detention," the practice of detaining immigrants even when there is no evidence of involvement with terrorist activities. The report said that immigrants were locked up for months merely because their visas had expired. "Detention without evidence is not the hallmark of a free society," the report stated.

Gag orders, other restraints on speech

Prosecutors, judges and prison officials have gone to unusual lengths to prevent suspected or convicted terrorists from communicating with the outside world once they have been detained. These measures have included the liberal use of gag orders, the imposition of "Special Administrative Measures" (SAMs) that bar prisoners from communicating with anyone but their lawyers, and efforts to monitor attorney-client communications in terror cases. The result has been to diminish the amount of information available to the public and news media in terrorism cases.

Gag orders

Judges have routinely imposed gag orders upon the attorneys in terrorism-related cases, despite the objections of some defense lawyers that the gag orders interfere with their ability to defend their clients.

In the case of Richard Reid, the so-called "shoe bomber" who was accused of trying to blow up an American Airlines flight from Paris to Miami, U.S. District Judge William Young of Boston, citing "national security concerns," issued an extremely broad gag order that forbade Reid's attorneys from repeating anything Reid said. Reid's public defender, Owen Walker, complained that the order hindered his ability to provide a defense, because Walker was unable to confer with other lawyers or investigate Reid's factual contentions. Reid eventually pleaded guilty and was sentenced to life in prison.

Gag orders were also imposed by Judge Leonie Brinkema in the Zacarias Moussaoui case, and by U.S. District Judge Robert Jones in the case of Portland, Ore., lawyer Brandon Mayfield, who was wrongly accused of having a role in the Madrid train bombing attacks of March 2004. Jones lifted the order after Mayfield was exonerated. A court issued a gag order in another material-witness proceeding involving Hussein al Attas, a former roommate of Moussaoui.

In one case, a judge's gag order snared an unusual victim: U.S. Attorney General John Aschroft. Ashcroft was publicly rebuked by U.S. District Judge Gerald Rosen for violating Rosen's gag order during the trial of four Detroit men accused of supporting Islamic terrorists. The attorney general apologized, and two of the men, Abdel-Ilah Elmardoudi and Karim Koubriti, were convicted in June 2003 of providing material support to terrorists. More recently, accused Lebanese terrorist Adham Hassoun asked a Miami federal judge in February 2005 to lift a gag order on him, claiming Ashcroft publicly discussed wiretap evidence against him last year.

Special Administrative Measures

According to the Justice Department, 26 inmates in the federal prison system were subject to special administrative measures (SAMs) at the end of last year that restrict their contact with other people. The measures typically include placing the inmate in special housing and limiting such privileges as correspondence, visiting, interviews with the news media and use of the telephone.

Federal regulations authorize the attorney general or the head of a law enforcement agency to order SAMs for a prisoner where "there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons." SAMs can also be imposed to prevent disclosure of classified information.

Three convicted terrorists at the so-called "Supermax" federal penitentiary in Florence, Colo., have filed lawsuits challenging the legality of SAMs that they say are overly punitive and restrictive. Richard Reid, Ramzi Yousef, and Wadih El Hage all complain that the measures go well beyond what is necessary for security purposes. Reid, for instance, said in a handwritten lawsuit that he is denied access to all religious materials, books, classes and correspondence courses, phone calls with family members, television news programs, and newspapers and magazines. Yousef and El Hage have made similar complaints. The lawsuits are pending in U.S. District Court in Denver.

The Bush administration has made a point of showing that it will enforce the most controversial measures aggressively. In a move that startled the legal community, the government indicted defense attorney Lynne Stewart in April 2003 for allegedly helping her client, Sheikh Omar Abdel-Rahman, communicate with members of a reputed terrorist organization, the Islamic Group, in violation of the SAMs governing Abdel-Rahman's confinement. Abdel-Rahman is serving a life sentence for conspiring to bomb the United Nations and other New York targets. Stewart, who was convicted by an anonymous jury in February 2005, is scheduled to be sentenced in September.

From the perspective of the news media, SAMs make it impossible to interview many of the key figures in the war on terror, even after they've been convicted and sentenced. The so-called "American Taliban" John Walker Lindh, for example, is barred by SAMs from talking to reporters, and likely will remain so until his sentence ends in the year 2019. Convicted Sept. 11 conspirator Zacarias Moussaoui has asked Judge Brinkema for permission to speak to reporters, but has been denied on the basis of his SAMs.

Monitoring attorney-client talks

Even in the traditionally sacrosanct area of attorney-client communications, the normal rules often do not apply in terrorism cases. Most notably, in the context of the enemy combatant cases, the government has sought to monitor meetings between terror suspects and their lawyers, and in some cases, to deny access to counsel altogether.

Yaser Hamdi and Jose Padilla, two of the U.S. citizens designated as enemy combatants, were denied access to counsel until shortly before the Supreme Court considered their cases. In what was widely seen as a cynical ploy to enhance the administration's chances of prevailing in the high court, both men were given limited access to a lawyer just hours before the government's briefs were due.

Attorneys representing the Guantanamo Bay detainees have had even more difficulty securing access to their clients. The lawyers who brought the Rasul case before the Supreme Court did so without ever having met their clients; they were retained by family members or friends of the detainees. After the Supreme Court ruled that the Guantanamo detainees must be permitted to bring legal challenges, the government appeared to drag its heels on providing the necessary security clearances or making arrangements for the meetings.

In October 2004, U.S. District Judge Colleen Kollar-Kotelly ruled that three Kuwaiti detainees who brought habeas petitions before the court had a right to counsel. She refused to allow the government to monitor meetings between the detainees and their lawyers or to review any notes taken during the meetings, ruling it would violate the attorney-client privilege. To protect national security, however, she ordered the defense lawyers to treat any information they learn from their clients as classified.

Conclusion

The battle over access to terrorism-related proceedings is being fought on several fronts -- from civilian, military and immigration courts within the U.S. to administrative review boards and military tribunals at Guantanamo Bay. The degree of media oversight of these processes varies considerably. For the most part, however, the government has sought to shield proceedings and documents from the public view.

Accordingly, the news media must remain vigilant in seeking to force the issue of access whenever possible. In the absence of such pressure, judges are likely to defer to prosecutors' requests for secrecy, especially when national security is invoked.

Next section: Domestic coverage