Secret Justice: Access to Terrorism Proceedings The War on Terrorism immediately prompted sweeping arrests and detentions — all conducted in almost unprecedented secrecy. Reporting on detainees like John Walker Lindh and Zacarias Moussaoui has often been difficult, and the other detainees might be tried before military tribunals like those that convicted Nazi saboteur John Dasch and seven WinterWinter 20022002 others in 1942. Will TheThe ReportersReporters CommitteeCommittee journalists get the ForFor FreedomFreedom ofof thethe PressPress access they need? Secret Justice: Gaining access to A continuing series terrorism proceedings The response to the September 11 terror- Code of Federal Regulations (8 CFR). Immi- ist attacks in New York and Washington, gration violations may be civil or criminal. A The American judicial system has, D.C., has highlighted a long-standing con- civil immigration proceeding may lead to de- historically, been open to the public, flict in the public access area, pitting those portation. A criminal proceeding may lead to and the U.S. Supreme Court has con- who believe that government should be able incarceration. tinually affirmed the presumption of to act without public scrutiny during times of 2. The “material witness” statute. The openness. However, as technology ex- trouble against those who believe that public “material witness” statute, 18 USC § 3144, is pands and as the perceived threat of scrutiny of the legal process is more impor- a general criminal statute. It can be used in violence grows, individual courts tant than ever. any criminal case. It is not limited to use in attempt to keep control over proceed- It was immediately clear that the four pas- terrorism cases or cases involving immigrants. ings by limiting the flow of information. senger jets that destroyed the World Trade It is designed to ensure that people who have Courts are reluctant to allow media ac- Center, severely damaged the Pentagon and information about a case are available to tes- cess to certain cases or to certain pro- crashed in a Pennsylvania field had been hi- tify and will not flee. ceedings, like jury selection. Courts jacked as part of a coordinated effort by ter- With respect to the “War on Terrorism,” routinely impose gag orders to limit rorists to destroy American sites. All of the the material witness statute is being used in public discussion about pending cases, hijackers — there were 19 men on four planes connection with grand jury proceedings in presuming that there is no better way to — appear to have been Arab Muslims. Osama New York and Alexandria, Va. These grand ensure a fair trial. Many judges fear that bin Laden, head of the al Qaeda terrorist juries were impaneled to investigate the at- having cameras in courtrooms will some- organization, is believed to have orchestrated tacks on the World Trade Center and the how interfere with the decorum and the attacks. And so in the weeks following the Pentagon, respectively. solemnity of judicial proceedings. Such attacks, federal agents detained more than Until the attacks, the material witness stat- steps, purportedly taken to ensure fair- 1000 people for violating immigration laws or ute was used rarely — usually in cases involv- ness, may actually harm the integrity of for being a possible “material witness” to the ing organized crime — where prosecutors a trial because court secrecy and limits investigation of the attacks. feared that a potential witness would flee or on information are contrary to the fun- Despite numerous requests from the press be killed if they were not taken into custody. damental constitutional guarantee of a and from civil rights groups, U.S. Attorney 3. General criminal laws. A person may public trial. General John Ashcroft refused to reveal who be detained or arrested for violating any fed- The public should be the beneficiary was being detained, the reason for the detain- eral or state law, under the ordinary rules of of the judicial system. Criminal pro- ment, or even the total number of detainees. criminal procedure. These would be ordinary ceedings are instituted in the name of The press has had difficulty reporting on the criminal proceedings, and all normal rules of “the people” for the benefit of the pub- investigation because of the lack of informa- criminal procedure would apply. lic. Civil proceedings are available for tion made available to the public. 4. Capture on the battlefield. Any per- members of the public to obtain justice, To complicate matters, prosecutors are be- son who has fought against the United States either individually or on behalf of a ginning to try alleged terrorists or others de- in Afghanistan may be captured and possibly “class” of persons similarly situated. The tained in the wake of the September 11th attacks. tried for war crimes or, perhaps, conspiracy. public, therefore, should be informed It is not yet clear how open the trials will be. John Walker Lindh, the American Taliban — well informed — about trials of public This report is designed to familiarize jour- fighter, is an example of this type of detainee. interest. The media, as the public’s rep- nalists and media law attorneys with laws and There is currently a debate over whether resentative, needs to be aware of threats issues regarding access to proceedings in light the non-Americans captured during battle to openness in court proceedings, and of the “War on Terrorism.” It will attempt to should be labeled “prisoners of war” or “un- must be prepared to fight to insure con- answer basic questions about the detainment lawful combatants.” The distinction is im- tinued access to trials. process, access to detainees, and access to the portant because it will determine what kinds In this series, the Reporters Com- various types of proceedings. of rights they have, and, therefore, what kinds mittee takes a look at key aspects of As discussed below, in most cases there of rights the press will have to access the court secrecy and how they affect the should be a presumption of openness. How- relevant proceedings and records. newsgathering process. We will exam- ever, because of the “War on Terrorism” and ine trends toward court secrecy, and the perception of immediate danger to the What types of proceedings what can be done to challenge it. public, many of the proceedings have been may be used? The first article in this “Secret Jus- closed and the records have been sealed. Un- It appears that there are four kinds of tice” series, published in Fall 2000, con- fortunately, the First Amendment does not relevant proceedings: cerned the growing trend of anonymous contain a self-executing enforcement mecha- 1. Immigration proceedings: These are juries. The second installment, pub- nism. Because there is no automatic check on administrative trials conducted by the Immi- lished in Spring 2001, covered gag or- the government agencies or the courts, they gration and Naturalization Service, a division ders on participants in trials. The third will be able to close proceedings and seal of the U.S. Department of Justice. They will installment, published in Fall 2001, cov- records if no one challenges their actions. be used to try to deport or jail those persons ered access to alternative dispute reso- who are in the United States illegally. lution procedures. What legal justification do the INS 2. Material witness hearings: Federal and FBI have to detain people? courts may hold hearings to determine wheth- In the “War on Terrorism,” there are four er a material witness warrant is valid. In the- This report was researched and written primary reasons why a person may be detained: ory, such proceedings are ordinary court by Ashley Gauthier, who is the 2001-2002 1. Immigration violations. A person may proceedings and should be open to the public, McCormick-Tribune Legal Fellow at the be detained if he or she is in the United States but some judges have closed the courtroom Reporters Committee. illegally. The immigration laws are codified due to “security” concerns. in Title 8 of the U.S. Code (8 USC); agency 3. Criminal prosecution in federal court: regulations are contained in Title 8 of the Some detainees have been charged with crimes PAGE 2 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS FALL 2001 and will be tried in federal court. These pro- the use of military tribunals. There was sub- the public or press would have any access to ceedings should be conducted like any other stantial opposition to this proposal, and, as of these proceedings or whether the public would federal criminal trial. the date of this report, the administration is even be notified of such proceedings. 4. Prosecution in military tribunal: Pres- still trying to create standards that would Each of these types of proceedings are ident Bush issued a Military Order permitting govern such tribunals. It is not clear whether discussed in detail in the articles below. preliminary finding. If there is no evidence gation process that there is an implicit excep- Immigration that the detainee is removable, he must be tion for aliens who are “terrorists.” There- released. If the detainee is removable, then fore, Ashcroft issued new regulations that the judge must consider any defenses the allow the INS to indefinitely detain an alien if Proceedings detainee might have. Defenses include re- the Attorney General decides that the alien quests for political asylum or other justifica- poses a significant risk of committing terrorism. How do the immigration laws work? tions for remaining in the United States. If someone is held for alleged immigration An individual may be detained for an im- If there are no defenses, the judge may violations, they may be held indefinitely be- migration violation, which could include over- order that the detainee be deported.