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Media win partial access to Moussaoui hearing, documents

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Media win partial access to Moussaoui hearing, documents

  • Classified information will remain secret, but appeal of decision granting Moussaoui access to captured al-Qaida leader will be open to the public in part.

May 14, 2003 — The U.S. Court of Appeals in Richmond (4th Cir.) ruled yesterday that it will partially open its doors to the public regarding whether accused September 11 terrorist Zacarias Moussaoui should be permitted to have access to a captured al-Qaida operative to aid in his defense.

The Fourth Circuit will bifurcate the oral arguments in which the government seeks to reverse U.S. District Judge Leonie M. Brinkema’s Jan. 30 order permitting Moussaoui to take the deposition of a Ramzi Bin al-Shibh, the alleged planner of the September 11 attacks and who Moussaoui argues will exonerate him at trial.

The first part of the appellate oral arguments scheduled for June 3 will be open to the public, the Fourth Circuit ordered. During these public proceedings, the court will hear arguments pertaining to whether the court has jurisdiction over the appeal, whether separations of powers require reversal of Brinkema’s order, and whether the captured al-Qaida operative who is an “enemy combatant held overseas” can be compelled to appear and give deposition testimony in the proceedings.

The second part of the arguments, which involve classified information, will be closed to the public.

“Unquestionably, our decision to partially seal argument infringes, albeit for good reasons, upon the rights of the press and the public,” the Fourth Circuit wrote in its order. “We believe, however, that this harm can be substantially ameliorated by the release of a redacted transcript of the sealed hearing as soon as is practicable after the conclusion of argument.”

Under the Fourth Circuit’s order, the government should be provided a transcript of the proceedings within 24 hours of the closed oral arguments and should make redactions based on classified information.

The redacted transcript should be available to the public “no later than five business days after submission of the unredacted transcript to the Government,” the court ordered.

“The court put the government and itself on a fairly tight time line,” said Jay Ward Brown, who represented media organizations seeking access to the proceedings. “The court’s decision recognizes that public access has to be contemporaneous or nearly contemporaneous,” he said.

In addition, the Fourth Circuit rejected the government’s argument that the Classified Information Procedures Act (CIPA), which protects classified information from disclosure in court proceedings, prevented access to all of the documents and oral arguments related to the appeal.

The court struck a careful and appropriate balance between the government’s interest in protecting national security and access to the proceedings, Brown said.

In addition, the court refused to allow certain classified documents to overwhelm the entire appellate process, he explained.

The Fourth Circuit’s order came after eleven media organizations, including The Reporters Committee for Freedom of the Press, intervened and requested that the court modify its March orders that sealed oral arguments, the substantive record and documents related to the government’s appeal.

(U.S. v. Moussaoui; Media counsel: Jay Ward Brown, Levine Sullivan & Koch, Washington, D.C.) ST

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