Media access to the legal proceedings of detainees remains unclear following Supreme Court rulings
From the Summer 2004 issue of The News Media & The Law, page 27.
By James McLaughlin
Two recent rulings by the U.S. Supreme Court appear to ensure at least some degree of media scrutiny of what had previously been an entirely secret process: the military’s indefinite detention of hundreds of alleged enemy combatants without charges, legal representation or contact with the outside world.
In Rasul v. Bush and Hamdi v. Rumsfeld, both decided June 28, the high court decisively rejected the Bush administration’s core argument that the president, as commander-in-chief, has the authority to order the indefinite imprisonment of anyone he deems to be an “enemy combatant” — that is, a person “who engaged in an armed conflict against the United States,” as Justice Sandra Day O’Connor puts it. The Bush administration has used the “enemy combatant” label to include both pro-Taliban fighters in Afghanistan and civilians who allegedly pl otted terrorist attacks against Americans.
The Court dismissed a third enemy combatant case, Rumsfeld v. Padilla, on procedural grounds.
The Court’s rulings mean that detainees held at the American naval base in Guantanamo Bay, Cuba, or in the United States will have an opportunity to challenge their captivity in federal court. In addition, the nearly 600 Guantanamo detainees will have the chance to contest the factual basis for their imprisonment before a newly created Combatant Status Review Tribunal composed of military officers.
But while the Court’s decisions guarantee that there will be legal and administrative proceedings for the news media to cover, the extent of the media’s access to those proceedings remains unknown.
“We’ll see how it plays out, but I’m skeptical,” says Jeffrey Fogel, legal director of the Center for Constitutional Rights, which has spearheaded legal efforts on behalf of the Guantanamo detainees. “The administration could let reporters attend and then exclude them every time something important happens.”
The scope of the news media’s access to legal challenges by the detainees depends largely on whether they are heard by federal judges — who are subject to an extensive set of legal precedents recognizing the public’s right to attend hearings — or by military bodies such as the Combatant Status Review Tribunal, where the rules are uncertain.
And that, in turn, hinges on the legal validity of the tribunals as a substitute for court action.
The Supreme Court’s rulings in Hamdi and Rasul helped clarify the detainees’ rights, but left many unanswered questions.
In the case of Yaser Esam Hamdi, an American citizen who was allegedly captured in late 2001 while fighting for the Taliban in Afghanistan, the Court firmly established that the government may not detain a U.S. citizen indefinitely and without charges, even after labeling him an enemy combatant. Hamdi is being held in a military brig in Charleston, S.C.
All but one justice, Clarence Thomas, agreed that a U.S. citizen 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 constitutes a “neutral decision-maker.” The plurality opinion, written by O’Connor, suggested that an “appropriately authorized and properly constituted” military tribunal might suffice. But that statement attracted only three other votes.
The justices voted 5-4 to dismiss the case of Jose Padilla, another U.S. citizen whom President Bush has declared an enemy combatant. Padilla was arrested in May 2002 for allegedly plotting to detonate a radioactive bomb in the United States. Like Hamdi, he is in a military brig in South Carolina.
The justices agreed that Padilla’s case should have been filed in South Carolina rather than New York. On July 6, his attorneys re-filed his suit in U.S. District Court in Charleston.
In the case of Shafiq Rasul and 15 other Guantanamo detainees, the justices made clear that prisoners at the U.S. naval base there have a right to bring cases in federal court. “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.
The Pentagon announced July 16 that it had notified all Guantanamo detainees of their rights under the Rasul decision. But the one-page notification focused mostly on the Combatant Status Review Tribunal, which was hastily devised in response to the court’s ruling and devoted just a few sentences to the right to go to court.
Fogel, of the Center for Constitutional Rights, questions whether the notification was adequate.
“If you’re a detainee at Guantanamo, you have no means of communicating with a U.S. court,” he says. “You probably don’t speak English. You have no knowledge of the American legal system, no idea what a pleading is supposed to look like. The bottom line is, you need access to a lawyer.”
The Combatant Status Review Tribunal was established on July 7, less than 10 days after the court’s ruling. The tribunal was created in a four-page order from Deputy Defense Secretary Paul Wolfowitz to Navy Secretary Gordon England, who is overseeing the detainee review process.
In press briefings, England has sent mixed signals about the scope of the news media’s access to the tribunals, which began in late July.
“We will make them as open and transparent as we can,” England told reporters July 9. But he hastened to add that “the data in most of the files is highly classified,” and that proceedings would be closed when classified information is discussed. England also suggested that the press might be barred from reporting the names or nationalities of any of the detainees, though he stopped short of making a definitive pronouncement.
The names of the first detainees to go before the review tribunal were, in fact, withheld, as were the panel’s decisions.
Another point of contention is the size of the media contingent permitted to attend. At a July 16 press briefing, England predicted that only “a small media pool” of “probably about three people” would be allowed to observe each review proceeding. No members of the media were allowed to attend any of the proceedings in late July.
By contrast, the Pentagon has allotted space for 84 media representatives at the forthcoming military tribunals that will determine the guilt or innocence of the Guantanamo detainees. None of those tribunals has yet been held.
Media scrutiny of the review tribunals could be particularly crucial given questions concerning their basic fairness. According to Wolfowitz’s July 7 order, detainees appearing before the tribunals will not have an attorney. The rules of evidence do not apply, allowing the government to rely on hearsay testimony. And the government’s allegations are presumed to be true, a stark contrast to the presumption of innocence in American criminal courts.
Better prospects for media access may lie in the federal courts, which have less discretion to exclude the press. But most of those proceedings will take the form of habeas corpus petitions, used to challenge the legal basis for one’s detention. Such petitions are typically decided on the basis of written submissions and without a personal appearance by the prisoner. As a result, there may be little for the media to report.
Even the attorneys for the Guantanamo detainees who have already filed habeas petitions have not met their clients. Fogel, whose group represents 53 Guantanamo detainees, says he faxed a letter to Defense Secretary Donald Rumsfeld on July 1 demanding access to his clients.
Rumsfeld never responded, Fogel says. “A person convicted of a serious crime, like murder, has more rights than a detainee who has been labeled an enemy combatant without any legal review at all,” he says.
Still, the Rasul and Hamdi decisions signify that the government can no longer retain control over the detainees without any public scrutiny at all. As the detainees begin to receive their day in court — or, at least, their day before a tribunal — the media’s access battles are likely just beginning.