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.

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