October 16 Commission Session #6: Media Matters

Onward with the topic of the day: the government's proposed protective order.  Here to challenge it on First Amendment grounds are David Schulz and Hina Shamsi. Schulz appears on behalf of 14 news organizations.  His clients, he says, object to the protective order, in particular its restrictions on the public’s right of access.  The fundamental question is this, he says: does the public’s constitutional right to observe and attend proceedings extend to military commission proceedings?  The lawyer’s answer is “yes," and it is precisely why the government’s proposed order is unlawful. Exactly how? True, courts can be closed, provided secrecy is necessary to protect a compelling interest, and closure is narrowly tailored.  Yet the prosecution’s proposal (and the statutory provisions that underlie it) reaches more broadly than than limits set by the First Amendment. Judge Pohl doubts this, in light of the commissions’ Rule 505 procedure---during which the court must initially determine, among other things, whether a courtroom must be closed.  The implication is that the court could resolve the problem, by accounting for First Amendment principles when applying Rule 505.   That cues Schulz, who refers to the military rule's analogue, the Classified Information Procedures Act, or "CIPA."  Under CIPA,  if national security information cannot be presented in an open forum, then the government's case may not go forward; the protective order, by contrast, leans heavily towards closure, and thus turns CIPA on its head.  The key, the lawyer says, is that before closing the court, Judge Pohl first must find the classified information is so important that it overrides the public interest in openness; he must also ensure that the closure is as limited as possible.  Rule 505, in the lawyer’s reading, calls for closure whenever classified information is at issue, and the protective order codifies that.  There's also the protective order's overbreadth: in its proposal, the government says everything that happened to the defendants is classified.  But so much of it has been released to the public, even officially, by the President.  Of course unofficial acknowledgement, the lawyer continues, would not not trigger a First Amendment claim by news organizations.  But here, we’re dealing with officially disclosed matters, many of which, under the protective order, would still have to be treated as “classified.”   The court and counsel trade some more words about courtroom closure, and the 40-second audio feed, and Schulz brings his discussion to an end. Hina Shamsi is the ACLU lawyer arguing for open access.  Everyday, she says, courts in the United States deal with national security information, but without transforming those same courts into secrecy chambers.  No other American courtroom has an official with a censorship button, the very purpose of which is to preclude the public from ever learning the details surrounding the defendants’ detention, interrogation, and rendition. Shamsi summarizes her client’s disagreements with the government.  The biggest one is encapsulated in this question: if non-government employees come to learn classified information, can the executive impose a gag order on them?  The relevant authority for that issue is the Pentagon Papers case, in Shamsi’s view.  The government’s protective order---Section 7 in particular--stops the accused from talking about, and the public from hearing, what the defendants experienced outside the courtroom.  But wait: that, Judge Pohl says, addresses discovery and not the accused’s ability to speak in court.  The lawyer rejoins that the protective order allows for courtroom closure at all phases of the case, based upon MCA criteria that cannot meet the Pentagon Papers standard.  The latter insists on a strong showing of need by the government, and narrow tailoring. She continues: here, in the most important terrorism case of our time, the public has a pronounced interest in learning of the government’s conduct as well as the defendant’s, and in ensuring the fairness and legitimacy of the commission proceedings.  Compare that to the government's position. According to Shamsi, prosecutors cannot now argue that the government has a compelling interest in preserving the secrecy of information surrounding the RDI program, especially since that information was forced upon the accused involuntarily, and officially disclosed in any case.  After a good silence, Judge Pohl stops the lawyer.  Again, and quite unlike Shamsi and the ACLU, Judge Pohl does not view the protective order proposal as calling for closure of all proceedings; instead, he would read it in light of Rule 505, which aims to minimize courtroom closure.  Shamsi still doesn’t buy that, in no small part because the government doesn’t appear to, either: the proposed order might mean what the court thinks it means, but it doesn't say as much. Lastly, the court asks about the delayed audio feed.  Precisely how is a 40-second delay unlawful?  Shamsi acknowledges the delay’s seductive reasonableness, but insists that before any delay may be imposed, the government first must meet the First Amendment standard.  And in this case it cannot, because, as she’s established, the government no longer has any interest in safeguarding RDI information which it already has disclosed so promiscuously. Around this time, we come to the day’s lone audio-blackout, as Cheryl Bormann and her client, Walid Bin Attash, pipe up.  Their remarks impress upon the court the long slog ahead of the parties---and the late hour.  (The court earlier had agreed to recess at 16:00).  The court thus calls a recess until tomorrow.  We'll see y'all then.