A pretrial hearing investigating the alleged torture and murder of an Iraqi general during interrogation by US soldiers is presumptively open to the public, The Reporters Committee for Freedom of the Press argued in a brief filed yesterday with the U.S. Army Court of Criminal Appeals.
The Committee filed a friend-of-the-court brief in support of The Denver Post, which has challenged the closure of a pretrial hearing, called an Article 32 hearing, to determine whether four Army soldiers should stand trial in the suffocation death of Maj. Gen. Abed Hamed Mowhoush in November 2003. Capt. Robert Ayers closed the entire hearing at Fort Carson, Colo., in December because of the supposed difficulty in separating classified from non-classified testimony. The proceedings were stayed after The Post asked the appeals court to overturn Ayers’ ruling.
The Committee’s brief argues that the First Amendment guarantees a right of public access to Article 32 hearings, and that the order closing the entire proceedings to the public violated the constitution.
“This court has recognized the vital role that public access plays in safeguarding the fairness of the military justice system,” the brief said, citing a 1997 case entitled United States v. Anderson. Another case, ABC v. Powell, which was decided by the U.S. Court of Appeals for the Armed Forces, requires a court to determine on a “case by case, witness by witness, and circumstance by circumstance basis” whether closure of an Article 32 hearing is necessary.
The Committee contends that the blanket closure order in this case is unconstitutionally overbroad, and that the purported difficulty in segregating classified and non-classified testimony “is hardly ‘compelling’ enough to cloak the entire proceedings in secrecy.” The Committee joined the Post in urging the court to direct Ayers to rescind his order and tailor any closure to comply with the requirements of ABC v. Powell.
It is uncertain when the appeals court, which has not scheduled oral arguments in the matter, will issue its decision.
The Reporters Committee is a voluntary, unincorporated association of reporters and editors working to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee provides representation, guidance and research in First Amendment and Freedom of Information Act litigation
A copy of the friend-of-the-court brief can be found at: www.rcfp.org/news/documents/20050216-amicusbrie.html