Justice Can't Be Done in Secret
On March 21, the Defense Department issued its long-awaited regulations governing the trials of alleged terrorists in military tribunals. The regulations answer some of the criticisms raised against the preliminary order issued by the Bush Administration in November. The government will, for example, permit defendants to have court-appointed military lawyers, defendants will be presumed innocent until proven guilty and death-penalty sentences must now be unanimous. On the key question of whether trials will be held in secret, however, the government answered its critics somewhat misleadingly. The regulations do state that trials should be open, but they also give the judges complete discretion to close the proceedings to the press and public for just about any reason. The regulations also stress that "no provision in this Order shall be construed to be a requirement of the United States Constitution."
President George W. Bush is determined to use military tribunals rather than federal courts to try noncitizen terrorists either in this country or abroad. According to recent reports, one reason to favor military tribunals is that the government is hoping to obtain convictions without having specific evidence that the defendants engaged in war crimes, something a federal court would require. But even if military tribunals are used to avoid certain evidentiary requirements against noncitizen defendants, there is no good reason for the President to abandon the delicate balance federal courts have struck between the First Amendment right of the press and public to observe criminal trials and the government's desire to protect classified information.
Military tribunals have been used periodically throughout US history, and the Supreme Court during the Civil War and World War II was asked to decide whether the President had the power to create these tribunals under his constitutional authority during times of war. Those Supreme Court cases--some of which upheld the wartime powers of Presidents to create tribunals and one that held after the Civil War that President Lincoln had exceeded his powers--have looked at the impact on the constitutional rights of the defendants. No court has ever considered the constitutional rights of the press and public to attend and report on proceedings in military tribunals.
Public criminal trials are so commonplace in our society that few think twice about the rights underlying this openness. When they do, the criminal defendant's Sixth Amendment right to a public trial usually comes to mind. However, it is now beyond dispute that a separate right of access to attend trials also arises from the First Amendment. That right to attend criminal proceedings--which belongs to the press and public, not to the defendants--mandates that trials be open, absent compelling and clearly articulated reasons for closing them. This independent constitutional right of access was first recognized by the Supreme Court in 1980 in Richmond Newspapers v. Virginia. In that case, the Court held that an order closing the courtroom for the trial was unconstitutional, noting the public policy reasons behind the rule: "When a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion." In describing the need for open criminal proceedings, Professor Laurence Tribe of Harvard Law School wrote: "The courthouse is a 'theatre of justice,' wherein a vital social drama is staged; if its doors are locked, the public can only wonder whether the solemn ritual of communal condemnation has been properly performed."
The United States Court of Military Appeals has also recognized the constitutional right of access, mandating the same test for closure in courts-martial as applied by federal courts: "where the state attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." In both federal courts and courts-martial it is now clear that these rights belong to the public, not to the government or the defendant, and are fundamentally necessary for the effective functioning of our criminal justice system. Neither the defendant nor the government nor both jointly can shield a proceeding from public view without meeting the stringent constitutional test.
Military tribunals are the functional equivalent of federal courts and courts-martial in terms of the press and public's right of access. The tribunals will act as a "theatre of justice" where those who allegedly sought to terrorize and undermine the United States will be tried. While the defendants may not have constitutional rights because they are noncitizens captured abroad, the press and public do not give up their rights based solely on the forum chosen by the President. The right of access, though, is not absolute. There are many rules federal judges follow that balance the right of access against the need for closure--for example, when national security information might be revealed in court. If the typical First Amendment guidelines are applied in the military tribunals, classified information will be shielded from improper disclosure and appropriate access will be provided the press and public.
Terrorists, hijackers, spies, mobsters, drug dealers and others have all been tried in open federal court, where the First Amendment applies, in cases involving serious national security concerns, without classified information being leaked. Federal judges routinely close the proceedings for a limited time when classified information is introduced into evidence. The Classified Information Procedure Act permits prosecutors to keep from defendants and the public certain sensitive information, and federal judges must defer to the government's reasonable concerns about national security.