Gaining access to terrorism proceedings

The response to the September 11 terrorist attacks in New York and Washington, D.C., has highlighted a long-standing conflict in the public access area, pitting those who believe that government should be able to act without public scrutiny during times of trouble against those who believe that public scrutiny of the legal process is more important than ever.

It was immediately clear that the four passenger jets that destroyed the World Trade Center, severely damaged the Pentagon and crashed in a Pennsylvania field had been hijacked as part of a coordinated effort by terrorists to destroy American sites. All of the hijackers -- there were 19 men on four planes -- appear to have been Arab Muslims. Osama bin Laden, head of the al Qaeda terrorist organization, is believed to have orchestrated the attacks. And so in the weeks following the attacks, federal agents detained more than 1000 people for violating immigration laws or for being a possible "material witness" to the investigation of the attacks.

Despite numerous requests from the press and from civil rights groups, U.S. Attorney General John Ashcroft refused to reveal who was being detained, the reason for the detainment, or even the total number of detainees. The press has had difficulty reporting on the investigation because of the lack of information made available to the public.

To complicate matters, prosecutors are beginning to try alleged terrorists or others detained in the wake of the September 11th attacks. It is not yet clear how open the trials will be.

This report is designed to familiarize journalists and media law attorneys with laws and issues regarding access to proceedings in light of the "War on Terrorism." It will attempt to answer basic questions about the detainment process, access to detainees, and access to the various types of proceedings.

As discussed below, in most cases there should be a presumption of openness. However, because of the "War on Terrorism" and the perception of immediate danger to the public, many of the proceedings have been closed and the records have been sealed. Unfortunately, the First Amendment does not contain a self-executing enforcement mechanism. Because there is no automatic check on the government agencies or the courts, they will be able to close proceedings and seal records if no one challenges their actions.

What legal justification do the INS and FBI have to detain people?

In the "War on Terrorism," there are four primary reasons why a person may be detained:

1. Immigration violations. A person may be detained if he or she is in the United States illegally. The immigration laws are codified in Title 8 of the U.S. Code (8 USC); agency regulations are contained in Title 8 of the Code of Federal Regulations (8 CFR). Immigration violations may be civil or criminal. A civil immigration proceeding may lead to deportation. A criminal proceeding may lead to incarceration.

2. The "material witness" statute. The "material witness" statute, 18 USC § 3144, is a general criminal statute. It can be used in any criminal case. It is not limited to use in terrorism cases or cases involving immigrants. It is designed to ensure that people who have information about a case are available to testify and will not flee.

With respect to the "War on Terrorism," the material witness statute is being used in connection with grand jury proceedings in New York and Alexandria, Va. These grand juries were impaneled to investigate the attacks on the World Trade Center and the Pentagon, respectively.

Until the attacks, the material witness statute was used rarely -- usually in cases involving organized crime -- where prosecutors feared that a potential witness would flee or be killed if they were not taken into custody.

3. General criminal laws. A person may be detained or arrested for violating any federal or state law, under the ordinary rules of criminal procedure. These would be ordinary criminal proceedings, and all normal rules of criminal procedure would apply.

4. Capture on the battlefield. Any person who has fought against the United States in Afghanistan may be captured and possibly tried for war crimes or, perhaps, conspiracy. John Walker Lindh, the American Taliban fighter, is an example of this type of detainee.

There is currently a debate over whether the non-Americans captured during battle should be labeled "prisoners of war" or "unlawful combatants." The distinction is important because it will determine what kinds of rights they have, and, therefore, what kinds of rights the press will have to access the relevant proceedings and records.

What types of proceedings may be used?

It appears that there are four kinds of relevant proceedings:

1. Immigration proceedings: These are administrative trials conducted by the Immigration and Naturalization Service, a division of the U.S. Department of Justice. They will be used to try to deport or jail those persons who are in the United States illegally.

2. Material witness hearings: Federal courts may hold hearings to determine whether a material witness warrant is valid. In theory, such proceedings are ordinary court proceedings and should be open to the public, but some judges have closed the courtroom due to "security" concerns.

3. Criminal prosecution in federal court: Some detainees have been charged with crimes and will be tried in federal court. These proceedings should be conducted like any other federal criminal trial.

4. Prosecution in military tribunal: President Bush issued a Military Order permitting the use of military tribunals. There was substantial opposition to this proposal, and, as of the date of this report, the administration is still trying to create standards that would govern such tribunals. It is not clear whether the public or press would have any access to these proceedings or whether the public would even be notified of such proceedings.

Each of these types of proceedings are discussed in detail in the articles below.