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From the Winter 2010 issue of The News Media & The Law, page 4. As plans to try the architects…

From the Winter 2010 issue of The News Media & The Law, page 4.

As plans to try the architects of the Sept. 11 attacks in a federal courtroom in downtown Manhattan crumbled under the weight of expensive security estimates and intensifying political opposition, it became clear that the trial of Khalid Sheikh Mohammed will be a defining event in Attorney General Eric Holder’s career.

Whether Holder realizes his plan to try Mohammed and four co-conspirators in a civilian courtroom — and not in front of a military commission, as his detractors suggest — could also define how much access the media can expect in high-profile terrorism cases going forward.

“Part of the problem with these military commission trials is that we just don’t know what that means in practice,” said Emily Berman, counsel at New York University’s Brennan Center for Justice. “In the civilian courts we have hundreds of years of precedent to fall back on.”

Military commissions were set up by the Bush administration in the wake of 9/11 to try suspects charged in the war on terror. Though there have been several iterations of the commissions — Congress passed two laws revising the commissions in the wake of a successful Supreme Court challenge — their use has been so infrequent that legal experts and the media have little idea what to expect.

Since Sept. 11, New York University’s Center on Law and Security reports that 174 suspects have been convicted of terrorism in civilian courtrooms and only three by military commission. If Mohammed’s trial, and those of others such as would-be Christmas Day 2009 airplane bomber Umar Abdulmutallab, are moved from the federal court system to military commissions, journalists and others with an interest in monitoring the proceedings will be left to chart unknown territory.

“We can assume that journalists will be let into a civilian trial … they might not be let into a certain portion of it, but for the most part you can expect that the press will be there,” said Center on Law and Security Director Karen Greenberg. “You can’t have any expectation like that for the military proceedings, with military court proceedings we actually don’t know.”

Even accessing terrorism trials in civilian courtrooms has at times been an uphill battle. Since the 9/11 attacks, the media has angled, pushed and fought for access to a host of national security cases the government would have preferred to keep under wraps. At times, the press has lost. But it has become clear that in civilian courtrooms, media groups can achieve some degree of success.


Tracking the larger fight for access through the Moussaoui lens


The Bush administration’s decision to try Zacharias Moussaoui, the alleged would-be 20th hijacker, in the Eastern District of Virginia in 2002 was the first sign that covering civilian trials in national security cases isn’t always smooth sailing.

Attorney Jay Ward Brown represented a coalition of media organizations that pressed for more access during the Moussaoui trial. He recalled that given the peculiarities of the case, the urgency of the government’s concerns and the headiness of the political atmosphere, Judge Leonie Brinkema was in a tough position.

“She had the practical problem of bringing this fellow to trial” without making decisions that would lead to a reversal or undue acquittal, Brown said. “I think she, as many judges would, made that her first priority, and therefore issued orders limiting access that in view of the media coalition went further than necessary. So, much of our effort went to asking the judge to back up and recalibrate her balancing.”

To begin with, Moussaoui, who was defending himself, repeatedly filed pleadings filled with rants the government feared contained encoded messages to would-be terrorists. As the case was getting underway, Brikema ordered them sealed.

Brown, on behalf of a group including The Washington Post, Tribune, CBS and the Reporters Committee for Freedom of the Press, quickly petitioned the court to reconsider. Rather than categorically seal pleadings that traditionally would be open, the coalition suggested the court seal them for up to 10 days after they were filed. That way the government could argue against the release of any portions it decided contained threats or inflammatory language.

To Brown this was a crucially pragmatic request on the media’s part, showing a willingness to settle for less than it was constitutionally due “in the spirit of getting its job done.” Though the government was unmoved, Brinkema sided with the media, saying the government’s national security concerns could not run roughshod over the traditional First Amendment balancing test.

The entire debate played out again the following spring when a media coalition appealed to the U.S. Court of Appeals in Richmond (4th Cir.) to open a hearing on whether Moussaoui would be allowed to have access to a government detainee as a witness. Prosecutors argued that the federal Classified Information Procedures Act barred the public from attending the appellate hearing.

This time it fell to the appeals court to find a middle ground, which it did by splitting the hearing and allowing the public in for part of it. Classified information needs to be protected, the court said, but CIPA lays out a process for handling such material in order to keep as much of the case open as possible. In a footnote the court even scolded the government for suggesting that every filing held classified information, writing “we decline the Government’s implicit invitation to gloss over the significant differences in the kinds of materials that have been presented to us.”

Four years later, when Moussaoui was on trial, the Fourth Circuit gave the news media its most stunning win. Brinkema had decided that reams of evidence introduced in court and fully aired before the jury would not be released until the trial ended. On behalf of the media coalition, Brown appealed, asking for a decision that would effectively tell Brinkema to follow the law by releasing at least whatever evidence the jury had seen.

At best, Brown said he expected the Fourth Circuit panel to deny the request and to gently encourage Brinkema to “do the right thing.” But, the portions of evidence the media coalition requested were released.

Throughout the Moussaoui proceedings, the Bush administration made clear that when it came to transparency, the terrorist attacks had changed the stakes and sought wholesale closure at every opportunity. Despite a body of case law that showed even national security cases could be dealt with openly, the media often resorted to strategic if somewhat controversial compromises while pressing for access in the courts.


Persistent push to get inside Guantanamo cases


Nowhere has that been harder to do than in Guantanamo Bay.

Secrecy at the detainee camp there has been a constant fighting issue, under both the Bush and Obama administrations. For years the Pentagon refused to release the names of the detainees. When they were brought before tribunals, reporters had limited access to the proceedings and were told the government could shut them out at anytime without explanation. In the last year alone the government has balked and even flouted court orders when it came to sharing information about Guantanamo-related cases. In September, for instance, the government seemed willing to at least partially open oral arguments when Belkacem Bensayah, an Algerian national who was arrested at his home in Bosnia one month after 9/11, asked the U.S. Court of Appeals in the District of Columbia to reconsider the denial of his habeas corpus petition to challenge his detention in court.

Bensayah’s attorney, Mark Fleming, insisted that opening the proceedings partially without also unsealing key evidence wasn’t much of a concession — and would make arguing the case difficult. Fleming wrote in a letter to the court that the government’s refusal to declassify the record meant that arguments “would be limited to incomplete generalities, rather than the actual evidence and rulings under review.”

“We certainly believe that there is a strong public interest in this appeal, and we would welcome an argument in open session if the government were to agree that the record below and all of the rulings under appeal could be discussed publicly,” Fleming wrote.

The court ordered the hearing sealed.

As more Guantanamo and other terrorism-related proceedings move into the federal court system, judges seem to be increasingly skeptical of the government’s insistence on secrecy. Chief Judge Royce Lamberth of the U.S. District Court in Washington, D.C., said in a recent interview that “the traditional arguments the government makes about classifying information, I think in the past might have [met with] more blind deference.”

But now, with the global war on terror nearly a decade old, “I think judges like me who have seen things that didn’t make sense to us have probably held the government to a little more stringent standard. While I still say I give them deference, it’s not blind.”

That may have been the balance sought by U.S. District Judge Gladys Kessler in December when she held the Defense Department in contempt of court for failing to videotape the testimony of a Guantanamo detainee in his habeas petition, despite a court order.

Lawyers for Mohammed Al-Adahi, the detainee, argued that the government willfully violated the order expressly to keep from the public “the brutality of Guantanamo.” Kessler found no evidence of that, but decided contempt was necessary anyway to deter the government from ignoring the court’s efforts “to ensure that the public [has] an opportunity to observe as much of the testimony as possible.”

A similar motion was made in the U.S. District Court in Washington, D.C., in January over the government’s refusal to release the unclassified portions of factual returns, which are the government’s written response to habeas corpus petitions, in dozens of Guantanamo cases. The motion to hold the government in contempt was denied, but Judge Thomas Hogan ordered that the documents be released by April.

The contempt motion came after Hogan’s June 2009 order had not been complied with. In that order, Hogan noted that the U.S. Court of Appeals for the D.C. Circuit was on record as refusing the government’s prior requests for the unilateral authority to seal off whatever aspects of the Guantanamo cases it wanted. The government was trying to “usurp the Court’s discretion to seal judicial records,” Hogan wrote. “Moreover, the public has a limited First Amendment and common law right to access the unclassified factual returns.”

At the time, he ordered the government to release the returns or come up with narrow requests for redactions. After the January motion, he extended the time for the government to do so.


Looking ahead


Lamberth echoed attorney Jay Ward Brown’s sense that the media has played a key role in pushing the courts to open sensitive cases. Judges can get in the habit of simply signing off on agreements the parties reach, Lamberth said, including on whether to close proceedings or seal documents.

“Aggressiveness by the press helps the process, ultimately, because judges can easily approve stipulated orders. We do it every day on a variety of topics,” Lamberth said. In national security cases it can fall to news outlets to step in and “get the judge to focus on, is it really necessary to be that broad on what they’re excluding?”

In cases involving classified information, access can mean a great deal more work for the court — judges may have to wade line by line into reams of classified documents a case can churn up and make specific decisions about what must be withheld. Nationwide training efforts in the judicial system are aimed at getting courts to do just that. “It takes effort … but my point is it can be done,” Lamberth said.

Lamberth cited The Washington Post’s push last fall for access to a key pre-trial hearing in the Blackwater case as an example of the system working well, with constructive involvement from all sides. An alert Post reporter following the case of five Blackwater security guards charged in a fatal shooting in Iraq had learned the day before the hearing was to begin that it would be held in secret.

Operating on nothing more than a law clerk’s impression that closure was supposed to protect the jury pool, Post attorney James McLaughlin laid out his objections that evening in a letter to presiding Judge Ricardo Urbina, though the hearing was nowhere on the docket and the judge’s reasons for closing it were neither presented in detail nor on the record. The Post lost that round and the hearings were closed. Urbina noted that the hearing concerned earlier testimony that could not be used at trial, as well as discussions of testimony before the grand jury.

After the government’s case fell apart — the charges against the guards were dismissed because the government had used the immunized testimony to secure the indictments — Urbina returned to the secrecy issue and ordered the release of legal memos and transcripts of the secret hearings. (However, that release was stayed by the appellate court, and no final decision had been made by early March.)