Justice Can't Be Done in Secret
The most recent federal prosecution of terrorists is an example of how a court effectively handled national security information while balancing the press and public's First Amendment rights of access. In early 2001 Judge Leonard Sand in New York presided over a trial of four members of Al Qaeda, who were jointly charged with Osama bin Laden in a far-reaching conspiracy that spanned at least ten years. The conspiracy culminated in the truck-bombing of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, on August 7, 1998, when 224 people, including twelve Americans, were killed and more than 4,500 others injured.
Once the trial began, Judge Sand balanced the need for secrecy with the First Amendment requirement that the trial must, except in extraordinary circumstances, be open to the public. Jury selection, for example, was closed, based on the court's determination that openness would discourage prospective jurors from being candid about their views of capital punishment. Judge Sand also ruled that for their own protection the identity of the jurors would not be released. Similarly, when an FBI informant took the witness stand, the judge ordered the courtroom artists not to sketch him. Judge Sand closed the courtroom so that two secret plea agreements could be reached; he sealed documents and heard secret testimony about the jail conditions of the Al Qaeda defendants. As a result, no classified information was leaked.
The press, which inserted itself into the case by filing motions with Judge Sand for access, criticized even these restrictions on First Amendment grounds. In a trial that involved four months of testimony, ninety-two witnesses called by the prosecution and more than 1,300 exhibits, the actual limitations on access were minimal. The constitutional balance between access and protection of national security information was maintained.
Several other federal trials have handled similar secrecy concerns. The 1991-92 trial of former Panama dictator Gen. Manuel Antonio Noriega involved undercover government agents, secret investigative techniques and other classified information. The judge occasionally sealed evidence, did not permit evidence to be introduced and sometimes ruled that evidence should come into open court. Despite the intricacy and sensitivity of the underlying issues, the trial was open and the public was able "to participate in and serve as a check upon the judicial process," wrote the trial court in its opinion. Acknowledging the importance of an open trial in a "controversial" case such as this one, the judge wrote that he had specifically "sought to make public all aspects of these proceedings to the extent legally permissible."
Similarly, Oklahoma City bomber Timothy McVeigh was tried and convicted in open federal court with classified information shielded from improper disclosure. From the outset, publicity was pervasive and intense. Massive amounts of secret government materials were introduced as evidence, including more than 10,000 FBI interview reports. The news media sought access to a variety of documents that had been filed under seal. Balancing the interests of secrecy and openness, Judge Richard Matsch condemned the "routine practice of sealing documents without adequate recognition of the public interest," and he granted access to some of the documents sought. The trial itself was open to the public. To protect the jury, the judge had a custom-built wall erected between them and spectators. He scrambled juror numbers so that the public could not match individual jurors with the answers given to questions during voir dire and kept the identity of individual jurors confidential. Each of these actions was challenged by a coalition of seventy press representatives at the time, but citing juror safety and privacy, the judge refused to budge.
The 1993 World Trade Center bombing cases also raised serious national security concerns that had to be weighed against the public and press's rights of access. Once again, the federal judge was able to strike that balance without any leak of national security information.
All of these examples of successful federal court prosecutions should reassure the Bush Administration that it too can apply the First Amendment right of access to its military tribunals without threatening national security. By issuing regulations that give the tribunals more discretion than the First Amendment permits and by specifically stating that the Constitution does not apply in the tribunals, the President may repeat some of the mistakes of his predecessors in the use of such tribunals. During the Civil War, for example, secret military tribunals, rather than civilian courts, were used as part of a broader campaign of the Lincoln Administration to quash public dissent and to try to punish civilians who criticized the federal government or the war.
A military tribunal was used again in 1942 by President Franklin Roosevelt to try eight German saboteurs who plotted terrorist attacks strikingly similar to Al Qaeda's in 2001. The Nazis planned to destroy key railroad installations, aluminum factories, power plants, bridges and canal locks, plus targets such as Jewish-owned department stores. That case more than any other points up how secrecy breeds corruption and contempt of justice. All of the saboteurs were found guilty; six were executed and two were sentenced to life in prison.
J. Edgar Hoover, the head of the FBI, was heralded for his swift capture of the Germans. The military proceedings were kept so secret that prior to the start of the trial officials would confirm neither the exact location nor the start date of the trial. Once it began there were only terse statements after each day's proceedings and a single visit by the press to the courtroom when the trial was suspended. There was a great deal of speculation in the press about the trial. But because it was closed, no informed opinions about the strength of the government's case could be formed.