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.”