Justice Can't Be Done in Secret : WHY PUBLIC AND PRESS HAVE A RIGHT TO WITNESS PROCEEDINGS OF MILITARY TRIBUNALS

By Klaris, Edward J. | The Nation, June 10, 2002 | Go to article overview

Justice Can't Be Done in Secret : WHY PUBLIC AND PRESS HAVE A RIGHT TO WITNESS PROCEEDINGS OF MILITARY TRIBUNALS


Klaris, Edward J., The Nation


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."

The United States Court of Military Appeals has also recognized the constitutional right of access, mandating the same test for closure in courts-martial as applied by federal courts: "where the state attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Justice Can't Be Done in Secret : WHY PUBLIC AND PRESS HAVE A RIGHT TO WITNESS PROCEEDINGS OF MILITARY TRIBUNALS
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.