Earlier this month, President George W. Bush designated six foreign nationals in the custody of United States government, all suspected of involvement in terrorism, as eligible to be tried before military tribunals. This is the first group of people implicated in the War on Terrorism that will be tried outside of the civilian court system.

In the interval since September 11, 2001, the government has acknowledged the importance of public oversight in the trials of suspected terrorists and enemy combatants. In both the civilian and the military setting, however, no clear policy has emerged to guarantee that oversight.

Instead, as to military commissions, the Department of Defense has set forth only broad guidelines concerning the extent to which the public and media will have access to the proceedings. Moreover, those guidelines that have been published leave even broader discretion for officials to close the doors during portions of a trial in a military court.

On November 13, 2001, President Bush issued a military order decreeing that certain non-citizens who commit terrorism or harbor or assist terrorists would be subject to trial by "Military Commissions." Military Commissions have convened since the Revolutionary War but they have not been used since President Roosevelt's administration, during World War II.

Under President Bush's rendition, defendants will enjoy many of the traditional safeguards of American law, for example, the presumption of innocence, the requirement of proof of guilt beyond a reasonable doubt, and assistance of counsel. But a trial by Military Commission, unlike a civilian trial, will not take place in front of a jury. Instead, defendants will be tried by officers of the Armed Forces who are to be appointed by the Secretary of Defense or his designee. Conviction, while still based on the traditional criminal standard of "reasonable doubt," requires only a 2/3 vote rather than a unanimous verdict, but to levy a sentence of death, the Commission must be unanimous in its decision. All appeals, instead of being heard by an appellate tribunal, will go directly to the president.

Military Order of November 13, 2001 grants all authority for conducting the Commissions to Secretary of Defense Donald Rumsfeld or his designee. In a subsequent order, Rumsfeld designated Deputy Secretary of Defense Paul Wolfowitz as the "Appointing Authority," which means he will hold the ultimate responsibility for appointing Military Commissions to conduct the trials, as well to decide whether to actually try individuals President Bush identifies as subject to trial by Military Commission. Wolfowitz will designate a "Presiding Officer," the Commission member who serves as a sort of Chief Judge, making decisions as they relate to the conduct of the individual trial.

At this point, the Pentagon has not identified the six people whom the president announced will be tried by a Commission. Nor has the government publicly disclosed where the Commissions will convene.

On March 21, 2002, the Department of Defense issued "Department of Defense Military Commission Order No. 1." The document chiefly lays out the rules of procedure that will govern the tribunal when it tries an accused.

Military Commission Order No. 1 explicitly provides that the Commissions should: "Hold open proceedings... [which] may include, at the discretion of the Appointing Authority, attendance by the public and accredited press. . . . Proceedings should be open to the maximum extent practicable." But the Order also provides for the following restrictions:

• an absolute ban on photographic or electronic coverage: "[P]hotography, video or audio broadcasting or recording of or at Commission proceedings shall be prohibited, except by the Commission pursuant to the direction of the Presiding Officer as necessary for the preservation of the trial record."
• the Presiding Officer may close a proceeding, on his or her own initiative, at the request of the prosecution or defense, or on command from Deputy Secretary Wolfowitz, based on any of the following grounds:
• Protection of classified or classifiable information.
• Limiting access to information protected by law or rule from unauthorized disclosure.
• The physical safety of participants in Commission proceedings, including:
- Prospective witnesses;
- Intelligence and law enforcement sources, methods or activities; and
- Other national security interests.
• Deputy Secretary Wolfowitz retains discretion on whether to make public transcripts of the proceedings "at the appropriate time."
• "Members of the Commission may meet in closed conference at any time."

In follow-up directives, the Department of Defense has designated the Assistant Secretary of Defense for Public Affairs as the sole authority for release of DoD information and audiovisual materials regarding Military Commissions.

Additionally, the directives provide that representatives of the Office of Chief Prosecutor, the Office of Chief Defense Counsel, and any civilian lawyers a defendant retains and pays for (the civilian lawyer must meet certain qualifications under DoD Military Commission Order No. 1) "may communicate with news media representatives only when approved by" Deputy Secretary Wolfowitz or the General Counsel of the Department of Defense.

The Defense Department has held a series of background briefings with the press to discuss the upcoming military commissions. In these briefings, military public information officials have pledged that the government will maintain open hearings "to the maximum extent possible," and that no proceeding will automatically be closed.

The government has said the rationale behind the gag rule on counsel is to "focus" all participants in the proceedings on a "full and fair trial process." But DoD also has indicated that the gag on counsel will continue after the proceedings conclude. Some journalists have questioned at briefings whether, without open press access to the prosecution and defense counsel, the public may view Military Commissions as a sort of kangaroo court. DoD's response: "That's actually where you come in. . . . it is going to be an open and public trial, as long as we can, protecting classified and protected information. So we're going to rely on you folks to make sure that the word gets out on what you see[.]"

The limited information from the government raises more questions than it answers. Will the commissions meet in a place the public and media can be granted access, like a military base? Or instead, will they meet somewhere harder to reach, like aboard an aircraft carrier? How many journalists will be allowed to attend? How will they be selected? Are there any avenues to appeal a ruling by the Presiding Officer or Wolfowitz to close a proceeding? Hopefully, as the Executive Branch continues planning for the proceedings President Bush has announced, clear answers will emerge.

If you would like to learn more about media access to military commissions, we would be happy to assist. Meanwhile, here are additional places you can look for background information on Military Commissions:

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