LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

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WRITER’S DIRECT DIAL

(212) 850 6103
dschulz@lskslaw.com

May 4, 2011

BY ELECTRONIC MAIL
Jeh Charles Johnson, Esq.
General Counsel of the Department of Defense
1600 Defense Pentagon
Washington, D.C. 20301 1600
Jeh.Johnson@osd.mil

Re: Lack of Access to Military Commissions at Guantanamo Bay

Dear Mr. Johnson:

We represent Associated Press, CBS Broadcasting, Inc., Cable News Network, LLP,
Dow Jones & Company, Inc., Fox News, The Los Angeles Times, McClatchy Corporation, The
Miami Herald, The New York Times, New Yorker Magazine, Reporters Committee for Freedom
of the Press, Reuters, Time, Inc., The Washington Post, and USA Today, whose journalists cover
the military commissions at Guantanamo Bay. I am writing to follow up on the significant open
issues that remain from the round table discussions last year about public access to the
commissions, and to bring to your attention the enclosed letter from the Pentagon Press
Association (PPA) to Assistant Secretary of Defense Douglas Wilson. Our clients agree with the
PPA that the ability of reporters to cover the proceedings is being thwarted by the continuing
failure to provide access to basic information about the commission proceedings—information
that is routinely available in the criminal justice system, constitutionally required under the First
Amendment and essential for meaningful press coverage of a criminal prosecution.

The current lack of transparency surrounding the military commissions at Guantanamo

prevents effective reporting and undermines public confidence in the integrity and fairness of the
proceedings. In light of the Obama Administration’s recent decision to prosecute the 9/11
suspects in military commissions, instead of the civilian courts in New York, the inadequacy of
access to the commissions has taken on added urgency and requires a prompt resolution. We
hereby request the Department of Defense (DOD) immediately to correct the unlawful
impediments that continue to prevent meaningful public access to the military commissions.
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May 4, 2011
Page 2

BACKGROUND

The PPA letter identifies a number of ways that existing rules and practices impede or
defeat the ability of reporters to cover prosecutions conducted by the DOD at Guantanamo Bay.
The news organizations we represent agree with these concerns, and specifically agree with the
key steps identified by the PPA:

1. That a public docket be provided on a real time basis that discloses case
developments, including filings made by the parties, notice of hearing dates, and
summaries of rulings. During the round table last September, DOD pledged to improve
the website operated by the Office of Military Commissions to provide information about
motions and developments in proceedings. The Legal Advisor to the Military
Commissions promised in the interim to provide reporters an updated Filings Inventory
by no later than the eve of any public hearing. To date, the website improvements have
yet to be implemented, and I understand that the Filings Inventory has not always been
provided. Without the functional equivalent of a court docket it is impossible for a
reporter to follow a case or to interpret in a meaningful way the events that occur at a
public proceeding. As the Court of Appeals explained in Hartford Courant Co. v.
Pellegrino, 380 F.3d 83, 93 94 (2d Cir. 2004), docket information “endow[s] the public
and press with the capacity to exercise their rights guaranteed by the First Amendment,”
and without dockets, their ability to cover proceedings is “frustrate[d]” and “merely
theoretical.”

2. That prompt access be provided to motions and other records when they are filed.
DOD has yet to establish a procedure to provide the public with timely access to motion
papers, orders, and other documents filed in a prosecution, including redacted versions of
filings that contain classified information. Again, there is no real transparency to a
proceeding if motions remain confidential and the positions taken by the parties remain
sealed when a motion is argued and decided. It is often not even possible to make sense
of what transpires at an “open” hearing if the issues to be discussed and the positions of
the parties are not known in advance.

3. That a live, closed circuit video feed of the 9/11 trials be made available to reporters
at a location within the United States. The distance of Guantanamo from the United
States, the restrictions imposed on entry to and departure from the Naval Base, and
physical limitations of the facilities at Guantanamo, all serve to impose significant
practical limitations on meaningful press access to the proceedings of the Military
Commissions. Only a limited number of reporters at Guantanamo are physically
permitted into the courtroom itself, and others must watch from a separate facility on
video monitors. Only 60 news media representatives at a time are currently allowed to be
present at the Naval Base, and the media center does not even have sufficient capacity for
60 people to work there. In light of these realities, DOD should make a video feed
available at a more convenient location within the United States. Video feeds are
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May 4, 2011
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routinely made available by civilian courts in high profile trials where physical
limitations preclude physical access by all journalists seeking to cover a case. Similar
arrangements should be made to facilitate remote access by journalists covering the
proceedings of the military commissions.

4. That procedures be adopted to allow reporters to be heard on requests to limit

public access to records and proceedings and to challenge closure orders, including
a mechanism to seek review of redactions to publicly filed documents. There are
currently no procedures at all to allow reporters covering the proceedings at Guantanamo
to be heard in opposition to a request to close a proceeding, or to object to the entry of a
protective order barring the use of the name or disclosure of information during a trial,
even when that information is already public. Procedures need to be created. A hearing
should be held before any proceeding is closed or any document sealed, during which the
judge is required to make findings explaining on the record why a limitation on access is
necessary, and the press afforded an opportunity to be heard. Similarly, a mechanism
must exist for reporters to challenge any decision limiting access to information.

5. That practices which unnecessarily limit reporters’ ability to cover proceedings

should be eliminated. DOD should clarify that reporters have the right to speak with
lawyers and witnesses without the prior consent or approval of OSD PA, and that
interviews are permitted to take place away from DOD “minders.” If an individual is
willing to speak with a reporter, DOD should not otherwise intervene. DOD should also
remove existing rules that impose limits on reporters’ ability to ask questions of
courtroom security officers, and provide a point of contact where reporters can go to
obtain information about ongoing proceedings. In addition, DOD should remove
unnecessary travel restrictions that effectively prohibit many reporters from covering the
proceedings at all, and hinder news organizations from rotating in reporters to cover
protracted proceedings.

I am writing to request your involvement in addressing these concerns, because the

effective press access to the commission proceedings sought by our clients is not only good
policy, it is also mandated by law.

PUBLIC’S RIGHT OF ACCESS TO COMMISSION RECORDS AND SESSIONS

Both the Military Commissions Act (“MCA”) and the Constitution of the United States
recognize a qualified right of public access to the proceedings and records of the military
commissions at Guantanamo. In adopting the Military Commissions Act in 2006, Congress
recognized the critical importance that these proceedings be conducted in the open so the
watching world would accept their validity. See, e.g., 152 Cong. Rec. H7522, H7534 (Sept. 27,
2006) (statement of Rep. Hunter); 152 Cong. Rec. H7508, H7509 (Sept. 27, 2006) (statement of
Rep. Cole); 152 Cong. Rec. H7522, H7552 (Sept. 27, 2006) (statement of Rep. Sensenbrenner);
152 Cong. Rec. H7925, H7937 (Sept. 29, 2006) (statement of Rep. Hunter); 152 Cong. Rec.
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H7925, H7945 (Sept. 29, 2006) (statement of Rep. Sensenbrenner). Congress thus expressly
mandated, in 2006 and again in 2009, that the commission proceedings must be open to the press
and public, except in certain narrowly limited circumstances. See 10 U.S.C. § 949d(c)(2).
The MCA and its implementing regulations mandate a public right of access that extends
to all aspects of any “proceeding” against an enemy combatant. See MCA § 949d(c)(2)
(extending right of access broadly to all “proceedings” of the commissions). The Department of
Defense Regulation for Trial by Military Commission (“Regulation” or “Reg.”), the Manual for
Military Commissions (“Manual” or “R.M.C.”), and the Military Commissions Trial Judiciary
Rules of Court (“R.C.”) make plain that the proceedings are to be open to “representatives of the
press, representatives of national and international organizations, … and certain members of both
the military and civilian communities,” R.M.C. 806(a), and that the “proceedings” open for
public inspection include motion papers, rulings, and conference summaries that form the record.
Under the Regulation, the right of access applies “from the swearing of charges, until the
completion of trial or disposition of the case without trial,” Reg. 19 2, and extends specifically to
all “[i]nformation that has become part of the record of proceedings of the military commission
in open session,” and “[t]he scheduling or result of any stage in the judicial process,” Reg. 19
4(a)(3) (4). Motions, rulings, and summaries of Rule 802 conferences are all required to be part
of the Record of Trial, and hence expressly subject to the right of access.1 Under the Manual,
pre trial motions are among the “proceedings” controlled by the military judge. R.M.C.
801(a)(3); see also R.M.C. 908(b)(4)(A) (motions not affected by order on appeal “may be
litigated, in the discretion of the military judge, at any point in the proceedings”); R.C. 2.2c (“All
filings may be subject to public disclosure” and so parties must submit redacted versions
“suitable for disclosure to the public”); R.C. 3.9 (“Public Release of Pleadings”). Where
Congress has mandated proceedings open to the press, and permitted a limitation of access by a
military judge only upon a “specific finding” that it is “necessary” to protect national security or
ensure physical safety, DOD cannot impose restrictions that are inconsistent with this statutory
mandate and frustrate the Congressional objectives embodied in the MCA itself.
The First Amendment independently “protects the public and the press from abridgement
of their rights of access to information about the operation of their government.” Richmond
Newspapers, 448 U.S. 555, 584 (1980) (Stevens, J., concurring) (recognizing First Amendment
right of public access to criminal trials); Press Enterprise Co. v. Superior Court, 464 U.S. 501,

1
See Reg. 22 5(a)(5) (“All accompanying papers, to include stipulations, motions, briefs, appellate
exhibits and copies, should, to the maximum extent practicable, be prepared in accordance with the
standards noted above” for preparation of the record of trial for appellate review.); Reg. 17 4(e) (“A
summary of the conference, including any matter resolved or agreed upon, will be entered into the record
of proceedings by the military judge, either orally or in writing at the military judge’s discretion, at or
before the next commission session in the case.”); R.C. 6.7b (Appellate exhibits, which include
“[m]otions, briefs, responses, replies, checklists, written instructions by the Military Judge for the
Commission members, findings and sentencing worksheets, and other writings used during motions
practice,” R.C. 6.2d(1), “become part of the record once the Military Judge has directed that they be
marked.”).
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508 10, 513 (1984) (“Press Enterprise I”) (recognizing First Amendment right of public access
to voir dire proceedings); Press Enterprise Co. v. Superior Court, 478 U.S. 1, 10 (1986) (“Press
Enterprise II”) (same as to preliminary hearings in a criminal prosecution). This First
Amendment right of public access attaches to proceedings of adjudicative military tribunals,
including military commissions.2 It also attaches to court records in such criminal prosecutions.3
Consistent with this constitutional right, the Rules of Court provide that records are not sealed
unless the military judge orders that they “should not be released in the interests of ensuring the
parties receive a fair trial or for other reasons,” R.C. 8.3, and records should be released “at the
earliest appropriate time,” R.C. 3.9a.
The public’s constitutional right of access to the records and proceedings of the
commissions at Guantanamo is a qualified, not an absolute, right. But the qualified right can
only be overcome where there exists a countervailing interest of “transcendent” importance that
requires a restriction of the access right. E.g., Richmond Newspapers, 448 U.S. at 581; Globe
Newspaper v. Superior Court, 457 U.S. 596, 606 07 (1982). To justify closure or sealing, the
tribunal must make specific factual findings, on the record, that closure or sealing “is essential to
preserve higher values and is narrowly tailored to serve that interest.” E.g., Press Enterprise II,
478 U.S. at 13 14 (internal quotation marks omitted).4

2
See, e.g., United States v. Anderson, 46 M.J. 728, 729 (A. Ct. Crim. App. 1997) (per curiam) (absent
adequate justification clearly set forth on the record, “trials in the United States military justice system are
to be open to the public”); ABC, Inc. v. Powell, 47 M.J. 363, 366 (C.A.A.F. 1997) (First Amendment right
of public access applies to investigations under Article 32); United States v. Travers, 25 M.J. 61, 62
(C.M.A. 1987) (First Amendment right of public access extends to courts martial); United States v.
Hershey, 20 M.J. 433, 436, 438 & n.6 (C.M.A. 1985) (finding First Amendment right of public access to
a court martial proceeding); United States v. Scott, 48 M.J. 663, 665 (A. Ct. Crim. App. 1998) (same);
United States v. Story, 35 M.J. 677, 677 (A. Ct. Crim. App. 1992) (per curiam) (same).
3
See, e.g., Washington Post v. Robinson, 935 F.2d 282, 287 88 (D.C. Cir. 1991) (holding that First
Amendment right of access attaches to plea agreement); Globe Newspaper Co. v. Pokaski, 868 F.2d 497,
502 04 (1st Cir. 1989) (same for sealed criminal court files); Seattle Times Co. v. U.S. Dist. Court, 845
F.2d 1513, 1515 17 (9th Cir. 1988) (documents relating to pretrial release hearing); In re Search Warrant
for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (search warrant
affidavits); United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988) (plea agreement); In re Storer
Commc’ns, Inc., 828 F.2d 330, 336 (6th Cir. 1987) (motion to recuse judge); In re New York Times Co.,
828 F.2d 110, 114 (2d Cir. 1987) (pre trial suppression motion); In re Washington Post Co., 807 F.2d
383, 389 90 (4th Cir. 1986) (plea and sentencing materials); Associated Press v. U.S. Dist. Court, 705
F.2d 1143, 1145 (9th Cir. 1983) (all pretrial court filings).
4
The adjudicatory tribunals of the military branches have applied this same standard. As explained in
Hershey, “the party seeking closure must advance an overriding interest that is likely to be prejudiced [by
openness]; the closure must be narrowly tailored to protect that interest; the trial court must consider
reasonable alternatives to closure; and it must make adequate findings supporting the closure to aid in
review.” 20 M.J. at 436; see also Anderson, 46 M.J. at 729 (“[T]he military judge placed no justification
on the record for her actions. Consequently, she abused her discretion in closing the court martial.”).
The Army Court of Military Appeals has also applied this standard as the substantive prerequisite for a
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The concerns with the current impediments to effective press access are thus rooted in
legal rights that DOD should acknowledge and protect.

1. Access rights require a contemporaneous, public docket.

The public and the press have a constitutional right to docketing information relating to
the prosecutions before the military commissions. See Pellegrino, 380 F.3d at 93 (“[T]he ability
of the public and press to attend civil and criminal cases would be merely theoretical if the
information provided by docket sheets were inaccessible.”); United States v. Ochoa Vasquez,
428 F.3d 1015, 1029 30 (11th Cir. 2005) (“[P]ublic docket sheets are essential to provide
meaningful access to criminal proceedings.” (internal quotation marks omitted)); Grove Fresh
Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 98 (7th Cir. 1994) (holding that the
district court erred in sealing, inter alia, the civil docket for a case); Washington Post v.
Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (striking down a trial court’s practice of failing to
publicly docket certain filings in criminal cases); In re State Record Co., 917 F.2d 124, 128 29
(4th Cir. 1990) (requiring public docketing of a criminal case because of the constitutional right
of access); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 575
(8th Cir. 1988) (reversing order sealing docket entries). As the Second Circuit observed in
Pellegrino, “[p]recisely because docket sheets provide a map of the proceedings in the
underlying cases, their availability greatly enhances the appearance of fairness.” 380 F.3d at 95.

The promise last fall of an online docket has never materialized. At a minimum, the
government should make the Filings Inventory available on a real time basis, with out delay.
There is no reason for withholding access to the Filings Inventory, which is neither classified nor
otherwise protected. See R.C. 5.3c (“The names given to matters that may appear on the Filings
Inventory such as the subject of a motion will not be classified or otherwise protected as the
Filings Inventory is intended to be transmitted through unsecured networks. Counsel must
therefore ensure that the names of their filings are not in themselves classified.”).

The denial of basic docketing information has plagued commission proceedings for four
years running, thwarting effective coverage of the early prosecution of David Hicks, whose
motion to disqualify the chief prosecutor and other filings were not disclosed until after Hicks
was sentenced and sent to Australia. The still unresolved issue must be addressed.

2. Access rights require open access to motions and orders.

Even when reporters learn of the existence of filings, their requests for access to motions
and court rulings have been ignored and their ability to cover “open” proceedings needlessly
frustrated. For example, in the November 18, 2009, hearing in U.S. v. Mohammed Kamin, four

court to enter a “protective order” limiting public access to documents admitted into evidence in a court
martial proceeding. See Scott, 48 M.J. at 665.
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separate defense motions were to be argued, but no motion was publicly available; and in the
December 2, 2009, hearing in U.S. v. Ibrahim Ahmed Mahmoud al Qosi, six motions were heard
but only one was available for reporters to review. Thus, even those reporters who manage to
travel to Guantanamo to attend open commission proceedings remain in the dark about what,
precisely, is being discussed, and the legal arguments supporting the parties’ positions.

Federal and state courts have widely concluded that the First Amendment right extends to
court records in criminal cases. See, e.g., supra at n.3. Courts have widely recognized a
constitutional right of public access to motions, and accompanying exhibits, in criminal cases.
See In re New York Times Co., 828 F.2d at 114 (First Amendment right of access attaches to pre
trial motions and exhibits in criminal case); In re Storer Commc’ns, 828 F.2d at 336 (First
Amendment right of access attaches to motions seeking recusal of judge); In re Knight Publ’g
Co., 743 F.2d 231, 235 36 (4th Cir. 1984) (reversing order sealing motions and affidavits filed in
criminal trial). The public right of access extends as well to transcripts of proceedings. See, e.g.,
Press Enterprise I, 464 U.S. at 512 13 (holding that judge’s order denying access to a transcript
of the voir dire was a violation of the First Amendment right to attend judicial proceedings);
United States v. Antar, 38 F.3d 1348, 1359 (3d Cir. 1994) (“the right of access to voir dire
examinations encompasses equally the live proceedings and the transcripts which document
those proceedings”); United States v. Brooklier, 685 F.2d 1162, 1172 (9th Cir. 1982) (same with
respect to transcript of suppression hearing; “the denial of the motion to release the transcripts
was itself a denial of the right of access protected by the first amendment.”); cf. Phoenix
Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 948 (9th Cir. 1998) (transcripts must be
released “when the competing interests precipitating hearing closure are no longer viable”).5

And this right clearly extends to court rulings, for a “court’s decrees, its judgments, its
orders, are the quintessential business of the public’s institutions.” EEOC v. Nat’l Children’s
Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996); see Republic of Philippines v. Westinghouse Elec.
Corp., 949 F.2d 653, 663 64 (3d Cir. 1991); In re Continental Illinois Secs. Litig., 732 F.2d
1302, 1308 09 (7th Cir. 1984).

Indeed, the Court of Military Commission Review assumes that the military commissions
are adjudicating motions to seal and providing contemporaneous access to the records of the
proceedings. See CMCR Rule of Practice 29(e) (“Motions to seal all or any part of the record
are presented to and resolved by the lower court or agency in accordance with applicable law
during the course of trial, hearing, or other proceedings below.”); id. 29(g) n.31 (noting “First
Amendment’s requirements for timely release of trial level documents”).

5
Merely providing a transcript, however, “does not satisfy the First Amendment right of access.” United
States v. Alcantara, 396 F.3d 189, 201 02 (2d Cir. 2005); ABC, Inc. v. Stewart, 360 F.3d 90, 99 100 (2d
Cir. 2004) (same); Antar, 38 F.3d at 1360 n.13 (“a court may not deny access to a live proceeding solely
on the grounds that a transcript may later be made available”).
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Both the Court of Military Commission Review and the Trial Judiciary require that
parties filing classified or protected information also submit redacted versions for public
disclosure. See CMCR Rule of Practice 29(f)(3)(ii) (when “sealed material is included in a”
filing, parties must also file “a redacted version of the same document for the public file”); R.C.
2.2c (“All filings may be subject to public disclosure” and so parties must submit redacted
versions “suitable for disclosure to the public”); R.C. 3.9 (“Public Release of Pleadings”). While
procedures to enable the press to challenge such redactions should be implemented, see infra,
delays in the release of redacted filings are unacceptable.

3. Physical constraints compel alternative, effective access through a video feed.

The Obama Administration’s decision to conduct these proceedings on a remote military

base cannot be used to frustrate effective and meaningful press coverage. The Manual
recognizes that “closed circuit video or audio transmission” may be warranted “to permit
viewing or hearing … by spectators when courtroom facilities are inadequate to accommodate a
reasonable number of spectators.” R.M.C. 806(c) (authorizing military judge to permit such
transmissions). The DOD has effectively acknowledged the inadequacies posed by limiting
access to those able to visit Guantanamo and fit into the courtrooms there, for, we understand, it
is providing a video feed to enable 9/11 victims and their relatives to observe the proceedings
from the mainland.

Moreover, the provision of a video feed to select members of the public refutes any
possible government interest in denying similar access to representatives of the press, needlessly
hindering them from fulfilling their critical function as “surrogates for the public.” Richmond
Newspapers, 448 U.S. at 573. And providing selective access by distinguishing between
members of “the organized press” and other members of the public itself raises serious
constitutional questions. Branzburg v. Hayes, 408 U.S. 665, 704 05 & n.40 (1972); First Nat’l
Bank v. Bellotti, 435 U.S. 765, 801 02 (Burger, C.J., concurring). “A court may not selectively
exclude news media from access to information otherwise made available for public
dissemination.” Anderson v. Cryovac, Inc., 805 F.2d 1, 8 9 (1st Cir. 1986); see, e.g., Nation
Magazine v. U.S. Dep’t of Defense, 762 F. Supp. 1558, 1573 (S.D.N.Y. 1991) (“Once a limited
public forum has been created, the government is under an obligation to insure that ‘access not
be denied arbitrarily or for less than compelling reasons.’” (quoting Sherrill v. Knight, 569 F.2d
124, 129 (D.C. Cir. 1977)).

4. The access rights are procedural as well as substantive.

To justify closure or sealing, a court must make specific factual findings, on the record,
that closure or sealing “is essential to preserve higher values and is narrowly tailored to serve
that interest.” E.g., Press Enterprise II, 478 U.S. at 13 14 (internal quotation marks omitted). If
access is to be denied, judicial findings on the need for closure must be entered as written
findings of fact, made with sufficient specificity to allow appellate review. Id. at 9 10, 14; In re
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Time, Inc., 182 F.3d 270, 271 (4th Cir. 1999) (“the court must (1) provide public notice that the
sealing of documents may be ordered, (2) provide interested persons an opportunity to object
before sealing is ordered, (3) state the reasons, supported with specific findings, for its decision if
it decides to seal documents, and (4) state why it rejected alternatives to sealing.”); Alcantara,
396 F.3d at 192, 199 200 (same).
The adjudicatory tribunals of the military branches have applied this same standard. As
explained in Hershey, “the party seeking closure must advance an overriding interest that is
likely to be prejudiced [by openness]; the closure must be narrowly tailored to protect that
interest; the trial court must consider reasonable alternatives to closure; and it must make
adequate findings supporting the closure to aid in review.” 20 M.J. at 436; see also Anderson, 46
M.J. at 729 (“[T]he military judge placed no justification on the record for her actions.
Consequently, she abused her discretion in closing the court martial.”). The Army Court of
Military Appeals has also applied this standard as the substantive prerequisite for a court to enter
a “protective order” limiting public access to documents admitted into evidence in a court martial
proceeding. See Scott, 48 M.J. at 665.
The MCA likewise mandates that denial of access by “the public” to all “proceedings” of
any military commission is permitted “only upon making a specific finding that such closure is
necessary to (A) protect information the disclosure of which could reasonably be expected to
cause damage to the national security, including intelligence or law enforcement sources,
methods, or activities; or (B) ensure the physical safety of individuals.” 10 U.S.C. § 949d(c)(2)
(emphases added).

In recognition of the public’s right of access to these proceedings, the Court of Military
Commission Review requires that any motion to seal filed with the Court “be placed on the
public docket for at least five calendar days before the Court rules on the motion,” with a movant
expressly required to:

(i) identify with specificity the documents or portions thereof for

which sealing is requested;
(ii) state the reasons why sealing is necessary;
(iii) explain why a less drastic alternative to sealing will not afford
adequate protection; and
(iv) state the period of time the party seeks to have the material
maintained under seal and how the material is to be handled
upon unsealing.

CMCR Rule of Practice 29(e)(2), (3). Similar procedures, including the right of the press to be
heard in opposition to any sealing or closure motion, must be implemented for the military
commissions.6

6
Military tribunals have recognized the right of the press to be heard on such applications to enforce the
public right of access. See, e.g., ABC, Inc. v. Powell, 47 M.J. at 365 (“[W]hen an accused is entitled to a
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5. Unnecessary restrictions should be lifted to improve transparency and promote

public confidence in the fairness of the proceedings.

Judges within the military justice system have long recognized that openness
significantly assists the functioning of the adjudicative process, including by fostering public
respect for the process. “‘Not only is respect for the law increased and intelligent acquaintance
acquired with the methods of government, but a strong confidence in judicial remedies is secured
which could never be inspired by a system of secrecy.’” United States v. Brown, 22 C.M.R. 41,
45 (C.M.A. 1956) (quoting Wigmore, Evidence § 1834 (3d ed.)), overruled, in part, on other
grounds by United States v. Grunden, 2 M.J. 116 (C.M.A. 1977); Travers, 25 M.J. at 62 (“public
confidence in matters of military justice would quickly erode if courts martial were arbitrarily
closed to the public.”); United States v. Hood, 46 M.J. 728, 731 & n.2 (A. Ct. Crim. App. 1996)
(“‘Openness thus enhances both the basic fairness of the criminal trial and the appearance of
fairness so essential to public confidence in the system.’” (quoting Press Enterprise I, 464 U.S.
at 508)).
“[O]pen societ[ies] do not demand infallibility from their institutions, but it is difficult for
them to accept what they are prohibited from observing.” Richmond Newspapers, 448 U.S. at
572 (Burger, C.J.); id. at 592 (Brennan, J., concurring) (“Open trials are bulwarks of our free and
democratic government: public access to court proceedings is one of the numerous checks and
balances of our system, because contemporaneous review in the forum of public opinion is an
effective restraint on possible abuse of judicial power.” (internal quotation marks omitted)).
Thus, Richmond Newspapers “unequivocally holds that an arbitrary interference with
access to important information is an abridgement of the freedoms of speech and of the press
protected by the First Amendment.” 448 U.S. at 583 (Stevens, J. concurring); id. at 576 77
(Burger, C.J.) (“The explicit, guaranteed rights to speak and to publish concerning what takes
place at a trial would lose much meaning if access to observe the trial could … be foreclosed
arbitrarily.”).
Arbitrary interferences, such as DOD meddling into conversations between reporters and
willing lawyers or witnesses, cannot stand. See Richmond Newspapers, 448 U.S. at 576 (“Free

public hearing, the press enjoys the same right and has standing to complain if access is denied.”)
(emphasis added); Denver Post Corp. v. United States, Army Misc. 2004 1215 (A. Ct. Crim. App. Feb.
23, 2005) (noting “obvious” “procedural error” in closing proceedings before allowing newspaper’s
counsel to address the issue). It is widely recognized that news organizations have standing to enforce the
access rights identified here. See Richmond Newspapers, 448 U.S. at 573 74; Globe Newspaper, 457
U.S. at 609 n.25; In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (“[T]hose who seek access to
such material have a right to be heard in a manner that gives full protection of the asserted right.”); United
States v. Valenti, 987 F.2d 708, 711 (11th Cir. 1993) (Press has “standing to intervene for purposes of
challenging its denial of access to the underlying litigation, even though it is otherwise not a party.”);
E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998); In re New York Times Co.,
828 F.2d 110, 114 (2d Cir. 1987); United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985).
LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

Jeh Charles Johnson, Esq.

May 4, 2011
Page 11

speech carries with it some freedom to listen.”); United States v. Wecht, 484 F.3d 194, 202 03
(3d Cir. 2007) (restrictions on willing speakers injure the rights of putative recipients of their
speech); In re Dow Jones & Co., 842 F.2d 603, 607 (2d Cir. 1988) (“the First Amendment
unwaveringly protects the right to receive information and ideas.”); CBS Inc. v. Young, 522 F.2d
234, 237 38 (6th Cir. 1975) (per curiam) (press’s “ability to gather the news concerning the trial
is directly impaired” by restrictions on “access to potential sources of information”).

SUBSTANTIAL INTEREST IN TIMELY AND EFFECTIVE ACCESS

The overarching concern should be to remove unnecessary, unlawful impediments to the

press’s right to report these historic proceedings “at the precise time when public interest in the
matters discussed would naturally be at its height.” Bridges v. California, 314 U.S. 252, 268
(1941). As the Supreme Court observed in Nebraska Press Association, “[d]elays imposed by
the governmental authority” are inconsistent with the press’s “traditional function of bringing
news to the public promptly.” 427 U.S. at 560 61; Hirschkop v. Snead, 594 F.2d 356, 373 (4th
Cir. 1979) (“It is no answer to say that” the proceedings can be discussed at some unspecified
later date, “for it is well established that the first amendment protects not only the content of
speech but also its timeliness.”).
The right of access conveys a right of contemporaneous access. See, e.g., Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 126 27 (2d Cir. 2006) (“Our public access cases and
those in other circuits emphasize the importance of immediate access when a right of access is
found.” (emphasis added)); Grove Fresh Distribs., Inc., 24 F.3d at 897 (access to court
documents “should be immediate and contemporaneous”); Republic of the Philippines, 949 F.2d
at 664 (“[T]he public interest encompasses the public’s ability to make a contemporaneous
review of the basis of an important decision of the district court.” (emphasis added));
Washington Post, 935 F.2d at 287 (recognizing “the critical importance of contemporaneous
access . . . to the public’s role as overseer of the criminal justice process”); Valley Broad. Co. v.
U.S. Dist. Ct., 798 F.2d 1289, 1292 (9th Cir. 1986) (noting that because the Press “seeks to
obtain the tapes for contemporaneous broadcast when presumably they will pack the greatest
punch, delay will prejudice its application in a way not correctable on appeal” (internal quotation
marks omitted)); Continental Illinois Secs. Litig., 732 F.2d at 1310 (“[T]he presumption of
access [to court records] normally involves contemporaneous access.”); In re Application of
National Broadcasting Co., 635 F.2d 945, 952 (2d Cir. 1980) (“[T]here is significant public
interest in affording [opportunity to scrutinize evidence] contemporaneously . . . when public
attention is alerted to the ongoing trial.”).
Indeed, military courts have stayed Article 32 proceedings that have been closed and
expedited review of the closure orders precisely because “awaiting relief in the ordinary course
of appellate review would be an inadequate remedy to preserve the public interest . . . .” Denver
Post Corp., Army Misc. 2004 1215 at 6 (lifting stay of Art. 32 proceeding only upon release of
redacted transcript of improperly closed portion); see ABC, Inc. v. Powell, 47 M.J. at 364
(granting immediate Writ of Mandamus directing Art. 32 proceedings to be opened even before
issuance of written decision).
LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

Jeh Charles Johnson, Esq.

May 4, 2011
Page 12

Until the practices listed here are reformed, “each passing day may constitute a separate
and cognizable infringement of the First Amendment.” CBS, Inc. v. Davis, 510 U.S. 1315, 1317
(1979) (Blackmun, J., in chambers) (quoting Nebraska Press Ass’n v. Stuart, 423 U.S. 1319,
1329 (1975) (Blackmun, J., in chambers)); Lugosch, 435 F.3d at 126 27 (noting, in context of
action by news media seeking access to judicial records, that the “loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”
(internal quotation marks omitted)); United States v. Simone, 14 F.3d 833, 842 (3d Cir. 1994)
(holding that ten day delay in release of transcript of closed hearing violates the press’ right of
contemporaneous access); Associated Press v. U.S. Dist. Court, 705 F.2d at 1147 (delay of
release of filed documents for 48 hours violates right of access); Brooklier, 685 F.2d at 1172 73
(holding that delay in release of transcript of closed suppression hearing until end of trial
violated right of access to attend judicial proceedings).

CONCLUSION
Given the especially heightened public interest in the proceedings now or soon to be under way
at Guantanamo Bay, journalists cannot accept the existing barriers to information about the
proceedings. We respectfully request the opportunity to meet with you and other appropriate
individuals at the Department in the very near future to ensure that the necessary changes are
promptly accomplished.

Very truly yours,

David A. Schulz

cc: Douglas Wilson, Ass’t Sec. of Defense for Public Affairs (Douglas.Wilson@osd.mil)
Vice Adm. Bruce MacDonald, Convening Authority (Bruce.MacDonald@osd.mil)
Robin Jacobsohn, Deputy General Counsel (robin.jacobsohn@osd.mil)