Banned from the Courtroom: Despite Worldwide Interest, a Federal Judge Rules against Electronic Coverage of the Zacarias Moussaoui Case. (First Amendment Watch)

Article excerpt

On January 17, Attorney General John D. Ashcroft made a very good case for

why federal District Judge Leonie M. Brinkema should allow cameras in the upcoming trial of Zacarias Moussaoui, the French national who is to be tried in October on charges stemming from the September attacks on the World Trade Center and Pentagon. Ashcroft released videotapes and still photographs of five suspected al Qaeda members--including Ramzi Binalshibh, an unindicted coconspirator in the case against Moussaoui. The images of the men were posted on the FBI's Web site, where, as Ashcroft put it, they would provide "another opportunity for the public around the world to join the campaign against terrorism" by helping law enforcement to locate them.

During the press conference, a reporter asked Ashcroft whether posting the images on the Internet would unnecessarily frighten people or prompt them to accuse innocent individuals who might resemble the suspected terrorists. Ashcroft said by releasing the photographs and the video rather than "generalized identification," the risk of mistakes would be far less. "The American people are accustomed to being a part of this investigation...and they realize they can be a constructive part," he said.

It's unusual for Ashcroft to embrace freedom of information as a means to encourage citizen participation, but more power to him for doing so. It shows a confidence in the public that is as commendable as it is justified. What a shame that Brinkema didn't see it that way Instead, only one day after Ashcroft's press conference, she ruled that cameras and other recording devices would be banned from Moussaoui's trial in Alexandria, Virginia.

In many ways, Brinkema's decision was predictable. After all, the media companies who argued the case for electronic coverage of the trial faced a formidable obstacle in the form of Federal Rule of Criminal Procedure 53, which states that photographs or radio broadcasts of federal criminal trials "shall not be permitted."

The language of the rule is both absolute and mandatory, meaning that, as a trial judge, Brinkema had no discretion to override it--unless, of course, she was willing to take the audacious course urged upon her by the media intervenors: to declare the rule unconstitutional.

Brinkema conceded that Supreme Court opinions from the 1980s recognize that the public, and by implication the press, have a First Amendment right of access to criminal trials. But that doesn't mean that every individual who might like to attend the trial must be allowed to do so in person, or through "the surrogate of the media. …