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.
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.
After the war, when Harry Truman was President, his Attorney General, Tom Clark, decided to open the files of the secret trial. It turned out that the two saboteurs who were given lengthy sentences, George Dasch and Ernst Burger, hated the Nazi regime and had left Germany expressly determined to expose the plot. Soon after they landed on the beach in Amagansett, Long Island, Dasch and Burger phoned the FBI in New York. They went to Hoover's Washington office, revealed the plot in full and explained how and why they had led the real saboteurs into the trap.
William Turner, one of Hoover's veteran FBI agents, later wrote: "Ironically, [Dasch] is most probably an authentic American war hero, responsible for saving many lives. But fate had made him a threat to the FBI's public image." As Lloyd Cutler, former White House counsel under Bill Clinton and a junior member of the prosecution team, explained it to the Atlanta Journal-Constitution in 1980, "I think the major reason the trial was kept secret, was the fact that it wasn't the FBI that had done the real work in capturing the Nazis." Had the trial been open, the military officials who presided over the tribunal would have been hard pressed to convict Dasch and Burger. But it was not, and the damage to these two men was devastating.
According to a series of articles published in 1980 by the Journal-Constitution, two years after Dasch and Burger arrived in prison, there was a riot because the prisoners objected to being housed with Nazis and Dasch was almost thrown off the roof of the penitentiary. Dasch was then transferred to solitary confinement at Leavenworth, Kansas, forbidden to have even a pencil. In April 1948 both Dasch and Burger were granted executive clemency and deported. Dasch, forced to return to Germany, was branded both a Nazi criminal and a traitor to the fatherland in the magazine Der Stern. His hometown paper, in a front-page article, dubbed him "The Judas of Speyer." Dasch tried to return to the United States many times during his lifetime but was never permitted to. He died in Germany in 1991.
History shows that giving unfettered discretion to the executive branch to capture, prosecute and try defendants without public scrutiny is likely to yield results that will be questioned for years to come and set a precedent for further incursions on individual liberties. Whether the Administration or the officers presiding over the military tribunals will comply with First Amendment requirements affirmed by the Supreme Court remains an open question, but so far the message the President has sent is that he does not have to. Since September 11, the Bush Administration has pursued a secretive legal strategy. The Immigration and Naturalization Service continues to detain secretly hundreds of aliens rounded up after September 11 whose links to the terrorist plot, if any, have not been explained. Without public announcement, for example, on September 21, 2001, the country's chief immigration judge, Michael Creppy, who is appointed by the Attorney General and comes under the executive branch of government, issued a memorandum ordering that immigration hearings designated by the Justice Department be kept secret, with court officials forbidden even from confirming that cases exist.
Since September 11, civil rights groups and news organizations have sued the federal government for blocking press and public access to immigration proceedings and detentions. In one case, decided on April 3, in which the Detroit Free Press and Ann Arbor News filed suit seeking access to deportation proceedings of a Detroit-area Muslim leader, the court held that the government had violated the First Amendment by excluding the press and public. On March 6 another suit was brought by the New Jersey Civil Liberties Union, the Center for Constitutional Rights and other legal groups challenging the government's closed immigration hearings; and in late February a federal judge in California declined to permit civil rights groups to obtain a list of Afghan detainees being held at Guantánamo Bay, Cuba.
The State Department has repeatedly criticized secret military tribunals in other countries, and with good reason. The public policy rationale the Supreme Court has used in expanding the First Amendment right of access is that just results come from openness. Secrecy does little more than cloak potential corruption, foment distrust and prevent the community from seeing justice done. The President, even in a time of war, may not alter that equation by simply changing the forum in which defendants are tried from courts to tribunals. If asked, the Supreme Court should find that the public and press have a First Amendment right of access to military tribunals as well.