Access to Terrorism Proceedings

Criminal Proceedings

Many of the detainees have been charged with criminal violations. According to a report issued by the Justice Department in November, at least 93 people have been charged with assorted federal crimes and will be tried in federal district court. Their cases are not sealed.

Since then, criminal terrorism charges have been brought against Zacarias Moussaoui and John Walker Lindh. They will be tried in federal court in Alexandria, Va.

In the past, accused terrorists have been tried in federal court, and there was some press access to the proceedings. Although the trials could not be televised, the press was permitted to attend the trial of Timothy McVeigh and the trials of the 1993 World Trade Center bombing conspirators.

Federal judges should not close any of the criminal proceedings without first evaluating the First Amendment issues involved.

The Supreme Court has established procedural requirements that must be carried out before closing a courtroom in a criminal case. In Globe Newspaper, the Court stated that "representatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion.'" For the "opportunity to be heard" to be meaningful, some notice must be provided before the trial court closes a courtroom. (Globe Newspaper Co. v. Superior Court; United States v. Cojab)

If a trial court wants to close its courtroom following the hearing, it must issue specific findings of fact that "closure is essential to preserve higher values [than the constitutional right of access] and is narrowly tailored to serve that interest." One reason that this procedural component is so important is so "that a reviewing court can determine whether the closure order was properly entered." (Press-Enterprise Co. v. Superior Court (Press-Enterprise I); Press-Enterprise Co. v. Superior Court (Press Enterprise II))

Any judge who wishes to close a proceeding should make the necessary determinations with written findings on the record before excluding the press.

SIDEBAR:

What is the Foreign Intelligence Surveillance Act Court?

The FISA court is not a court that holds trials. The only job of the FISA court is to review applications for search and surveillance warrants. It allows intelligence officials to request warrants without compromising the secret or security-oriented information that may be used to justify the warrant.

The FISA court -- a group of seven judges from different federal circuits that meets twice a month in Washington, with two judges always available in Washington -- is entirely confidential and there is no public or press access to its proceedings or records. It is required to release only the number of applications for warrants and the number of warrants approved each year. The only way the public learns about any particular FISA court warrant is if criminal charges are eventually filed against the suspect.

With regard to the "War on Terrorism," the FISA court is not involved in the detainment or trial processes, but may be used by the Justice Department to obtain surveillance warrants to spy on those who have been released or others suspected of any potential terrorist involvement.

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