A federal judge in Texas rejected a local journalist's request today to open to the public a status hearing in U.S. v. Aldawsari, a case in which a Saudi Arabian man is accused of plotting to attack several U.S. targets.
Khalid Aldawsari, 21, is charged with attempted use of weapons of mass destruction after allegedly making a chemical bomb in Lubbock, Texas, in a plot to blow up several potential locations, including former President George W. Bush’s house. Aldawsari had an open status conference scheduled for Monday, but, on June 9, U.S. District Judge Sam Cummings decided to hold the conference in chambers instead.
James Clark, executive producer at KCBD in Lubbock, filed a motion — on his own behalf and not representing the news organization — to intervene, asking the decision be reconsidered. Clark argued the last-minute decision violated his First Amendment speech and Fifth Amendment due process rights.
Clark's motion cited a recent decision by the U.S. Court of Appeals in New Orleans (5th Cir.), Hearst Newspapers, LLC, as supporting his right to challenge the court closing. In Hearst, the Fifth Circuit ruled the public and press have a presumptive constitutional right to attend sentencing hearings in criminal trials, and a sentencing court must provide the public notice and opportunity to file any objections before closing a sentencing proceeding.
Clark added that, if the case were to be closed, the public be given prior notice and a chance to object.
“A final decision was made without first allowing interested parties to raise objections or point out alternatives,” Clark said Monday. “A final decision was made first, and that’s not what Hearst called for. There must be opportunity to be heard, and then the court can make a final decision.”
However, Cummings said Hearst applies to sentencing hearings, not status conferences.
“Although the Fifth Circuit in In re Hearst found that sentencing hearings are matters that are normally open to the press and public, here, the purpose of the June 13, 2011 'status conference' is to enter a scheduling order for this case — a matter historically not open to the public or the press and left to the sound discretion of the trial court.”
Cummings also said the case was moot because prosecutors gave notice late on June 10 that a status conference was no longer needed after both parties agreed on a scheduling order, which was the purpose of the hearing.
Clark said, after reviewing the decision, he will not contest it because of the mootness factor. However, he said he will fight future closings of pretrial hearings.
“I’m not afraid to file another petition in the future, or in New Orleans with the [Fifth Circuit] if I have to,” he said. “Should future hearings that should be open be closed, I will take up the issue again.”
Clark has also, on his behalf, asked the Fifth Circuit to reverse a gag order for the case that was issued in March due to the amount of national media attention it was receiving. The district court had denied his request.
His petition to the appellate court, which is still pending, argues the gag order is overbroad and injures reporters’ ability to gather news.
Clark said the case rightfully has received national attention because it relates to the well being of Americans and a potential terrorist attack — making it all the more important for the case to be conducted openly.
“The case, generally, is very important because it pertains to the government’s response to keeping its citizens safe," he said.