Media Access To The New Special Tribunals: Lessons Learned From History And The Military Courts

Co-written by Andrew M. Mar

The right of the public and the press to attend the recently authorized special military tribunals has not been established as of this writing. History suggests any such right will be limited, but there are steps members of the news media can take to maximize their access to the records and proceedings of such tribunals.

On November 13, 2001, President Bush signed a military order allowing special military tribunals to try non-citizens charged with acts of terrorism. 66 Fed. Reg. 57,833 (Nov. 13, 2001) ("Military Order"). As of mid-December, Secretary of Defense Donald Rumsfeld was developing the rules and procedures for such tribunals, including the right of the public (and the press) to attend. It is possible that the rules for each specific case may be different.

The Military Order itself does not spell out what rules, if any, will be used by these military tribunals, but some relevant sections of the order suggest that neither the Rules for Courts Martial nor the Federal Rules of Civil Procedure will necessarily apply, and the right of access to proceedings and documents may be scarce. The order states:

• "It is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." Military Order §1(F)
• The Secretary of Defense has the authority to issue orders and regulations regarding "the conduct, closure of, and access to proceedings." Id. §4(C)(4)(b)
• "An individual subject to this order does not have a right to seek a remedy in any other tribunal, such as state or federal court, courts of a different nation, or an international court." Id. §7(B)(2)(i)-(iii).

While many of the specifics of these proceedings are unknown, they likely will be quite different from civilian and traditional military trials. The military tribunals will feature a panel of judges, not a jury, to decide guilt or innocence and the sentence, including the death penalty. Convictions may not require a unanimous vote, only a two-thirds majority, and the tribunals could convict on an evidentiary standard less stringent than "beyond a reasonable doubt." The military tribunals only apply to non-U.S. citizens, but may apply even if the individual is a resident alien. Therefore, it is possible that a U.S. citizen living abroad who is suspected of acts of terrorism may be tried in one of the existing (civilian or military) courts, while a non-citizen living in the U.S. may be tried before a military tribunal.

The United States actually has a storied, if relatively unknown, tradition of using secret military tribunals. As early as the Revolutionary War, military tribunals were used to prosecute individuals accused of spying on the United States. The practice continued in the Civil War and World War II. 1

The Supreme Court has acknowledged the constitutionality of military tribunals. During World War II, the Roosevelt administration used military tribunals to secretly try and convict a group of German agents accused of entering the United States illegally with explosives and the intent to commit acts of terrorism. In 1942, the Supreme Court upheld their convictions in Ex parte Quirin, 317 U.S. 1 (1942), and six of the eight agents were ultimately executed.

However, there are limits to the power of the executive and legislative branches to use or authorize military tribunals. In 1866, the Supreme Court held that military tribunals could only try civilians – in this case, a U.S. citizen – if the civil courts are actually closed and it is impossible to administer criminal justice. Ex parte Milligan, 71 U.S. 2 (Wall) (1866).2 Milligan’s other significant limitations were that martial law may only be declared by Congress, military tribunals may only be used during wartime, and decisions of military tribunals are subject to judicial review. During World War II, both local governments and the federal government implemented military tribunals. In Hawaii, authorities closed the traditional courts, declared martial law, and used military tribunals to prosecute ordinary civilian crimes, including securities fraud and assault. The Supreme Court found this unconstitutional because martial law did not allow the elimination of civilian courts in favor of military tribunals. Duncan v. Kahanamoku, 327 U.S. 403 (1946).

Quirin does not necessarily support President Bush’s Military Order because the case is distinguishable in several ways. First, Quirin involved the trial of individuals who entered the country illegally. Second, the court upheld the rights of the accused to judicial review. Third, citing Milligan, the Supreme Court noted Congress formally had declared war and expressly authorized military trials for acts "against the law of war." In the current campaign against terrorism, Congress has not declared war, calling into question the President’s authority to create military tribunals. Any authority the President has with regard to military powers is generally shared with the legislative branch. Congress, not the President, is empowered by the Constitution, Article I, Section 8, "[t]o make Rules for the Government and Regulation of the land and naval forces." The Military Order is not limited to individuals accused of entering the United States as spies or terrorists, and it provides no right to judicial review.

Because it is unclear if the press will have access to military tribunals, a discussion of the existing military court system may be instructive. Courts-martial are presumptively open to the public, but there is no right to camera, photojournalism, or radio access. 3

The media has access rights based on military court rules and the First Amendment. Rule for Courts-Martial 806(b) states courts are presumptively open to the public, unless certain exceptions apply. The most relevant ground for closure is introduction of classified information. Military Rule of Evid. 505(j). If the decision to close is supported by individual findings, is narrowly tailored, and protects compelling government interests, as a general matter, closure to protect classified information is possible. United States v. Grunden, 2 M.J. 116 (C.M.A. 1977). Closure should not be greater than necessary: military courts have held that a witness testifying in part to classified information requiring closure should testify in open court during the remainder of his or her testimony. Id. at 123.

The media also have First Amendment rights of access to military trials. "It is clear that the general public has a qualified constitutional right under the First Amendment to access to criminal trials." ABC, Inc. v. Powell, 47 M.J. 363, 365 (1997); U.S. v. Scott, 48 M.J. 663 (Army Ct. Crim. App. 1998). The press has standing to complain if access is denied. ABC, 47 M.M. at 365.

There is no indication, however, that these rules or the First Amendment right will apply to tribunals established under the Military Order. The Supreme Court held it unconstitutional to bar all access at all times, but this holding may be limited to the federal court system and not military courts or the military tribunals. Globe Newspapers v. v. Superior Court, 457 U.S. 596 (1982). None of the Supreme Court cases involving special military tribunals addresses whether the proceedings must be open to the public, but there is some historical precedent for access. Towards the end of the Civil War, military tribunals were established to try the alleged conspirators to President Abraham Lincoln’s assassination. The proceeding initially was closed. Reporters complained about their lack of access to witness General Ulysses S. Grant. Grant arranged for a meeting with President Andrew Johnson, and the tribunals were opened to the public and press the following day. 4

Military court rules and the First Amendment also provide for access to judicial records.5 Because the procedures for tribunals permitted under the Military Order have not yet been made public, it is difficult to ascertain he potential for journalists and media organizations to gain access to proceedings. Since these proceedings may occur outside of the United States, or even on aircraft carriers or military bases, it may be logistically difficult to obtain access even if the proceedings were open to the public. Therefore, it may be best for news organizations to familiarize themselves with military court laws and procedures to obtain documents once the proceedings are over.

This procedure is less than clear. Because the tribunal documents may be classified, it is questionable whether the Freedom of Information Act will be useful. Also, because military attorneys likely will represent both the government and the defendant,6 there may not be any party willing to give reporters access to records or to offer accounts of the proceedings, even on an "off the record" basis.

In general, there is a First Amendment right of access to judicial records in courts-martial trials.7 Military judges are required to consider if sealing a particular record meets the compelling interest, specific finding, and narrow tailoring prongs of the traditional First Amendment analysis. Moreover, there is a limited common law access right to court records, but the procedure for obtaining such records is unclear. FOIA and the Privacy Act do not apply to federal court or courts-martial records while the proceedings are on-going.8 But because the armed services, in their capacity as federal agencies, maintain the records of courts-martial, FOIA and the Privacy Act may be used to obtain judicial records once a case ends. The problem is that a specific record may be subject to FOIA until the start of a proceeding, then not subject to disclosure because proceedings are on-going, and then subject to FOIA again once the proceedings end. Finally, the Department of Defense has multiple grounds, many particular to DOD, to deny FOIA requests, making access particularly difficult.

In sum, access to the newly authorized special military tribunals may be difficult to obtain. Media organizations should be prepared to marshal arguments for access based on the history and legal precedent discussed above. Ultimately, however, they may be served best by understanding how to access judicial records efficiently in order to analyze the proceedings, or at least their outcomes, after they have concluded.

1 See generally Ex parte Quirin, 317 U.S. 1, 42 n. 14 (1942) (listing historical uses of military tribunals without juries).

2 But see Mudd v. Caldera, 134 F.Supp. 2d 138, 146 (D.D.C. 2001) (in reconsidering a Civil War-era conviction, court found it proper for citizen charged with a "law of war violation" to be tried by military commission, even though civilian courts were open).

3 See Rules for Courts-Martial 806(c); U.S. Court of Appeals for the Armed Forces, Rules of Practice and Procedure 41(a) (prohibiting photographing, televising, recording or broadcasting of hearings).

4 James H. Johnston, Swift and Terrible, Wash. Post, Dec. 9, 2001 at F1.

5 See Scott, 48 M.J. at 665. There is also a common law right of access to civilian court records, and this may apply to military court records. Id. at 666, discussing Nixon v. Warner Communications, 435 U.S. 589, 599 (1978) (establishing, in non-military case, common law rights in addition to First Amendment rights).

6 This was true in the World War II secret military tribunals. See e.g., Quirin, 317 U.S. 1 (1942).

7 United States v. Scott, 48 M.J. 663 (Army Ct. Crim. App. 1998) (setting aside judicial seal).

8. Courts-martial are not agencies for the purpose of FOIA or the Privacy Act. 5 U.S.C.A. § 551(1)(B), (F) (2001); but see 5 U.S.C.A. § 552(a)(e)(4); Privacy Act System Notice Requirement Applies to Courts-Martial Files, Op. Defense Privacy Board, No. 32 (Armed services maintain records of courts-martial proceeding).