Military Commissions Trial Judiciary Guantanamo Bay, Cuba UNITED STATES OF AMERICA AE093 Response/Opposition by 14 News Organizations to Potential C losure of Hearing on Defense Motions July 12. 2012 v. ABD AL RAHIM H USSA YN M UHAMMAD AL NASHIRI 1. Timeliness. This Opposition is timely filed under the Rules of Court ("R.C.") in response to the Government's motion (AE 093) for an in camera hearing to determine the extent to whi ch oral argument of two defense motions (AE 088 and AE 089) will be closed to the public. The Governm ent's motion was first posted to the public webs ite on July 6, 2012, and thi s opposition is fil ed within two weeks of that date . R.C. 3.7.c(J). 2. Relief Sought. Pursuant to Rul es of Court 3.5.c and Regulations 17- 1 and 19-3(c) & (d) of the 20 11 Regulation for Tri al by Military Commi ss ions, The Miami Herald, ABC, Inc., Associated Press, Bloomberg News, CBS Broadcasting, Inc., Fox News Network, The McC latchy Company, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Wall Street Journa l, and Wash ington Post (co ll ectively the "Press Objectors") respectfully submit thi s response to the Government's request for a Rule 505 confe rence, which suggests that portions of the hearing on two pending defense discovery motions (AE 088 and AE 089) will need to be closed to the public. The Commi ss ion should reject any request by the Government to close proceedings automatically whenever any classified information may be disclosed, and may properly deny public access to a proceeding onl y when secrecy is essenti al to avo id a clearly estab li shed risk of haml . Speci fica lly, the public's 100526035;\'2) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI?Nashiri) Page 1 of 24 constitutional right to observe these proceedings may only be overcome if the Government demonstrates that ( I) the disclosure of spec ifi c informat ion would create a substa nti al probability of harm to a compe lling governmenta l interest, (2) no alternative other than closure can avo id that harm, (3) closure will in fact be effective in preventing the threatened harm, and (4) the cl osure requ ested is narrowly tailored in scope and time. 3. Burden of Proof. Because these proceedings are subj ect to both a statutory and constituti onal right of publi c access, the Government bears the burden of estab li shing a proper factual basis for closing any proceed ings, in whole or in part . See Press-Enterprise Co. v. Superior COllrt, 464 U.S. SO l, 510 ( 1984) (" Press-Enterprise f'); Press-Enterprise Co. v. Superior COllrt, 478 U.S. I, 15 (1986) ("Press-Ente/prise If') ; Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123?24 (2d Cir. 2006); ABC, Inc. v. StelVart, 360 F.3d 90, 106 (2d Cit. 2004) ; Washington Post v. Robinson , 935 F.2d 282, 288 (D.C. Cit. 199 1). 4. Statement of Facts. Mr. al Nashiri stands accused of having orchestrated AI Qaida's bombing of the U.S . nava l warsh ip, the USS Co le, off Yemen in October 2000, resu lting in the death of seventeen U.S. sa ilors. Mr. al Nashiri is the first U.S. deta inee to face cap ita l punishment if convicted in thi s Military Commi ss ion , and there is thus signifi cant public interest in the Commission proceedings in thi s case. The court record includes all egations that Mr. al Nashiri was subj ected to torture in U.S. custody, adding to the public' s need to know. Pending before the Commi ssion are two sea led defense mot ions that, according to the docket entries, seek pre-tri al discovery from two witnesses (whose identities are redacted from the publi c record) on facts relating to the "arrest, detenti on and rendition" of the defendant. Press Objectors do not know the compl ete focus or scope of the discovery requests, because the motions are entirely redacted in the public record . The Government 's responses (AE088A and 2 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 2 of 24 AE089A), fi rst made publicly availabl e on July 11 , 201 2, anicul ate the government 's legal position without ever full y discl os ing the scope of di scovery sought by defendant. On July 6, a public fil ing was made of the Government req uest (AE 093) for a prehearing conference pursuant to Military Commission Rul e of Ev idence ("M.C. R.E.") 505(h)( 1)(A) to determine th e "use, relevance, or admi ss ibility of classifi ed information" at the hearing on defendant' s discovery motions, and the extent to which the hearing would need to be cl osed to the public. The Government 's moti on is premi sed upon the view that the hearing necessaril y will need to be closed during the discuss ion of any cl ass ified information. 5. Discussion. The Commiss ion should deny the Government 's over-reaching req uest fo r automatic closure of proceed ings- by means of a white noise generator or otherwise-any time cl assifi ed informati on may be di scussed. The fac t that information is deemed to be class ifi ed by the Government, alone, does not constitute a suffi cient basis for overriding the public's constituti onal rights, as the Government requests. Rather, the Government is req uired to identify to the Commiss ion the specifi c secret facts whose di sclosure would truly threaten national sec urity or personal safety, and if the Commi ss ion finds that disc losure wou ld indeed create a substanti al probability of hann, then only disc ussion of those facts may be subj ect to initial exclusion of the publi c. I. COMMISSION PROCEEDINGS MA Y NOT A UTOMATICALLY BE CLOSED ANY TIME CLASSIFIED INFORMATION IS DISC USSED A. The Press and Public Have An Affirmative Right of Access to Commission Proceedings Both the Military Commi ss ions Act ("MeA") and the Constitution of the United States recognize a qualifi ed ri ght of public access to the proceedings and records of the military commissions at Guantanamo. 3 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 3 of 24 1. Statutory Based Right of Public Access In fi rst 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 CONGoREC. H7522, H7534 (Sept. 27, 2006) (statement of Rep. Hunter); 152 CONGoREC, H7 508, H7509 (Sept. 27, 2006) (statement of Rep. Cole); 152 CONGo REC, H7522 , H7 552 (Sept. 27, 2006) (statement of Rep. Hunter); 152 CONGo REC. H7925 , H7937 (Sept. 29, 2006) (statement of Rep. Sensenbrenner); 152 CONGo REC, H7925 , H7945 (Sept. 29, 2006) (statement of Rep. Sensenbrenner). Congress thus exp ress ly mandated, in 2006 and again ill 2009, that the co mmi ssion proceedings must be open to the press and publi c, except in certain narrowly limited circumstances. See 10 U.S.c. ? 949d(c)(2). Consistent with thi s statutory mandate, the Department of De fense Regulation for Trial by Military Commission (" Regul ati on" or " Reg."), the Manual fo r Military Commi ssions ("Manu al" or " R.M.C." ), and the Military Commiss ions Tria l Judic iary Rules of Court ("R. C.") all make pl ain that the proceedings are to be open to "representati ves of the press, representati ves of national and international organizati ons, . . . and certain members of both the military and civilian communities." R. M.C. 806(a). The " proceedings" open for public inspection include motion papers, rulings, and conference summaries that form the record. Under the Regul ation, the ri ght of access applies " from the swearing of charges until the completion of tri al and appell ate proceedings or any fin al di sposition of the case." Reg. 19-2 . Under the MCA, proceedings of the Commi ss ion may onl y be closed to the public where a military judge makes a " spec ific findin g" that closure is " necessary" to protect infonnation "which cou ld reasonabl y be expected to cause damage to the nati onal security" or to " ensure phys ica l safety of indi vidu als." See MCA ?949(c)(2). DOD cannot impose by regulation restrictions on access that are inconsistent with thi s statutory mandate. See 10 U.S.c. 949a(a) 4 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 4 of 24 ("Pretrial, trial , and post-trial procedures" before military commiss ions, to be prescribed by Secretary of Defense, " may not be contrary to or inconsistent with thi s chapter."). Recognizing this fact, Reg. 19-6 states that " [t]he military judge may close proceedings of military commissions to the public only upon making the findings required by MCA ? 949d(c) and R.M.C. 806." (Emphasis added.) See also Reg. 18-3 (requiring express findin g, wh ich "shall be appended to the record of trial"). 2. Constitutional Right of Access The First Amendment independentl y "protects the public and the press from abridgement of their rights of access 10 information about the operation of their government." Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 584 ( 1980) (Stevens, J. , concurring) (recognizing First Amend ment right of public access to crimina l tri als) ; Press-Enterprise Co. 1,464 U.S. at 508 (B lackmun, J. and Stevens, J., concurring) (recognizing First Amendment right of public access to voir dire proceedings). The scope of this qualified constitutional right was first defined by the U.S. Supreme Court in Richmond Newspapers, a case invo lving access to a criminal trial that the State of V irgini a had conducted entirely in secret. A Virgin ia statute granted the trial judge discretion to conduct a secret trial , but the Supreme Court held that the First Amendment created an affirmative, enforceable constitutional right of access to certa in government proceedings that trumped the state statute. The Court found this righ t 10 be implicit in the First Amendmen t's guarantees of free speec h and press, just as the right of association, right of privacy, right to travel, the right to be presumed innocent and other rights are implicit in various provisions of the Bill of Rights. 1 As 1 See Id. at 577 (Burger, J.) (the right of access is "assured by the amalgam of the First Amendment guarantees of speech and press" and Iheir "affinity to the right of assembly"); Id. at 585 (Brennan, J., concurring) ("the First Amendment - of itself and as applied to the States through the Fourteenth Amendment - secures such a public right of access). 5 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 5 of 24 the Court later put it in Globe Newspaper Co. v. Superior COllrt, 45 7 U.S. at 604, the First Amendment ri ght of access is based upon, the common understanding that a " maj or purpose of that Amendment was to protect the free di scuss ion of government affairs." By offering such protection, the First Amendment serves to ensure that the indi vidual citizen can effecti vely parti cipate in and contribute to our republi can system of self-government. (Citation omitted. ) Richmond Newspap ers "unequi voca ll y holds that an arbitrary interference with access to important information is an abridgement of the freedoms of speech and of the press prot ected by the First Amendment." 448 U. S. 583 (Stevens, J. concurring).2 Under the " history and poli cy" analys is adopted by the Supreme Court, the constitutional right of access ex ists where government proceedings traditionall y have been open to the public, and public access plays a "significant positi ve role" in the functioning of the proceeding. E.g. , Globe Newspaper, 45 7 U.S . at 605-07; Press.Enterprise 11, 478 U.S. at 8-9. Whil e thi s ri ght has most frequently been assert ed to compel access to judicial proceedings, the ri ght equally applies to proceedings conducted in the executive branch. E.g., New York Civil Liberties Union v. New York City Transit AlIth., 652 F.3 d 247 (2d Cir. 2011) (administrative adjudication) ; Detroit Free Press v. Ashcroft, 303 F. 3d 68 1, 695 -96 (6th Cir. 2002) (deportation hearings); Whiteland Woods, L. P. v. West Wh iteland, 193 F.3d 177, 18 1 (3d Cir. 1999) (planning meeting). Appl ying the same history and poli cy analysis, the First Amendment ri ght of access plainly applies to these proceedings: Like any member of the public, the press has standing to be heard in opposition to the denial of publi c access. See, e.g., Globe Newspaper Co., 457 U.S. at 609 n.25 ("representatives of the press and general public ' must be given an opportun ity to be heard on the question of their excl usion"') (citat"ion omitted); ABC, fnc. v. POlVell, 47 M.J. 363, 365 (C.A.A. F. 199 7) (press has standing to complain if access is den ied); Deliver Post Corp. v. United States, Army Misc. 20041 2 15, at *2 (A. Ct. Crim. App. Feb. 23, 2005) (noting "obvious" error in closing proceed ings be fore allow ing newspaper's counsel to address the issue). 2 6 100526035;\'2 ) Filed with TJ 12 July 2012 Appellate Exhibit 0938 (AI-Nashiri) Page 6 of 24 Historical Experience. William Winthrop, known as the "B lackstone of Military Law" (Reid v. Covert, 354 U.S. I , 19, n. 38 ( 1957) (plura lity opini on)), described in hi s class ic opus on military law a hi story of open military tribuna ls that dates back centuri es: Ori ginall y, (under the Carlovingian Kings,) courts- martial . . were held ill the open air, an d in the Code of Gustavus Adolphus . . . crimina l cases before such courts were req uired to be tried "under the blue skies." The modern practice has inherited a similar public ity . William Winthrop, MI LI TARY LAW AND PRECE DENTS 16 1?62 (rev. 2d ed. 1920). The sa me trad ition o f public access to courts? marti al also runs through the history of mili tary commissions. After all, commi ssions hi stori cally have "d iffered fro m the court-marti al onl y in terms of jurisdict ion." Dav id W. G lazier, Notes, Kangaroo Court or Competent Tribunal?: Judging the 21st Centwy Military Commission, 89 VA. L. REV. 2005 , 2092 (2003). As the Supreme Court has explained: [T] he procedures govern ing trials by military commi ss ion histori ca lly have been the same as those governing courts-martia l. . . . The military commission was not born ofa des ire to dispense a more summary form of j ustice than is affo rded by courts-marti al; it devel oped, rather, as a tribunal of necess ity to be employed when courts? marti al lac ked jurisdict ion over e ither the accused or the subject matter. See Winthrop 83 1. Exigency lent the commi ss io n its legitimacy, but did not fu rther justi fy the who lesa le jetti soning of procedural protections. That hi story exp lain s why the military commission 's proced ures typica ll y have been the ones used by courts? martial. Hamdan v. Rums/e/d, 126 S. Ct. 2749, 2788, 2792 (2006).' With rare exception,4 military commissions have been co nducted pu blicl y throughou t our nation's history: 3 The United States COUft of Military Commission Review has also recognized that Congress intended the practices of mili tary commissions to "mirror" those of cOUl1s?martial. United States v. Khadr, CMCR 07? 001 at 23 & n.35 (Sept. 24, 2007) (citing and quoting MeA ?? 949a(a) & 948b(c)). 7 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI?Nashiri) Page 7 of 24 o During the Civil War, for example, me mbers of the 1864 military commi ss ion of Lambdin P. M illi ga n and othe rs retired from the room to deliberate in order "to avo id the inconvenience of dismissing the audience assembled to listen to the proceedings ." William W inthrop, MILITARY LAW AND PRECEDENTS 289 (rev. 2d ed. 1920) (emphasis added and internal quotation marks om itted) . The military commi ss ion estab li shed to try John Wilkes Booth's co-conspirato rs in Linco ln 's assassination was opened to the pub lic after re porters comp lained and Gen . Ulysses S. Grant " led them to the W hite House to ta lk to the president." See James H. Johnston, Swift and Terrible: A MiiitGlY Tribunal Rushed to Convict After Lincoln's Murder, WASH . POST, FI (Dec. 9, 200 l V The military commi ss ion that tried General Tomoyuki Yamash ita in 1945 was also open to the press a nd publi c. See Ass' n of Bar of City of NY, The Press and o o the Public's First Amendment Right of Access to Terrorism Paper, 22 CARDOZO ARTS & ENT. LJ. 767, 790 (2005). 011 Trial: A Position The we ight of experi ence across centuries supports the recognition of a public right o f access to prosecutions in m ili tary courts. Policies A dvanced bv Public Access. Justice Brennan wrote separate ly in Richmond Newspapers to unde rscore the crucia l structural role o f publi c access in c riminal cases, describing open trials as " bulwarks of our free and democratic governme nt." Richmond Newspapers, 448 U.S. at 592 (Brennan, J., concurring) . The Supreme Court in that case ide ntifi ed at least fi ve distinct inte rests that a re advanced by open proceedings, each of w hic h app li es to prosecutions by mil itary commissions as we ll : ( 1) ensuring that proper procedures are 4 A 1942 trial of Nazi saboleurs was conducted in secret, bUI that precedenl underscores how secrecy is counterproductive in the long run. It is now widely believed that the "real reason President Roosevelt authorized these military tribunals was to keep evidence of the FB I's bungling of the case secret." Department ofJustice Oversight: Presen'illg Ollr Freedoms While Def ending Against Terrorism, HEARINGS BEFORE THE SENATE COMM . ON HI E JUDICIARY, 107th Congo 377 (Nov. 28, 2001) (statement ofN . Katyal, Visiting Professor, Yale Law School, and Professor, Georgetown University), available at hup :llwww.judiciary.senate.govlhearings/testimony.cfm?id=4 fl e08995 33 f7 680e 78d03 28 I fdabd2 c& wi 1_i d=4fle0899533f7680e78d03281 fdabd2 c-O-0 (last visited July 11 ,2012). S The openness of these Civil War era commissions is particularly significant in light of the rampant suppression of the freedom of the press and "gross violations of the First Amendment" thai otherwise occurred during the Civil War era . See William H. Rehnquist, ALL TH E LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME (1998). 8 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI?Nashiri) Page 8 of 24 being followed; (2) discouraging perj ury, misconduct of participants, and biased decisions; (3) providing an outlet for comm un ity hostility and emotion; (4) ensuring public confidence in a trial's results through the appearance offa imess; and (5) inspiring confidence in government through public education regard ing the methods followed and remedies granted. See id. , 448 u.s. at 569-7 1. Judges with in the military justice system have long recognized that openness sign ificant ly assists the functioning of military tribunals in this very same fashion. Even before the Supreme Court first articulated the const itutional access right in Richmond Newspapers , the Court of Military Appea ls had identified the functional benefits of public proceedings to include: (I) improving the quality of testimony; (2) curb ing abuses of authority; and (3) fostering greater public confi dence in the proceedings. See United States v. Brown, 22 C.M .R. 41 , 45-48 (C.M .A. 1956). Just as in c ivili an courts, publi c access to military tribunals improves the performance of all in volved, protects judges and prosecutors from cla ims of dishonesty, and provides a forum for ed ucating the public. See Ass'n of Bar of City of NY , "{[it Walh, Talh and Squawks . . . " The First Amendment Right of Access to Administrative Aqjudications: A Position Paper, 23 CARDOZO ARTS & ENTERT. U. 2 1, 25 (2005). For a ll the reasons cited in BrowlI , a long chain of precedent since Richmond Newspapers recognizes that the pu bli c's constitutional ri ght of access extends to mili tary tribunals. See, e.g., United States v. Anderson , 46 M.J. 728, 729 (A. Ct. Crim . App . 1997) (per curiam) (absent justification clearly set forth on the record, "tri als in the Un ited States military justice system are to be open to the public"); United States v. Travers, 25 M.1. 6 1, 62 (C.M .A. 1987) (F irst Amendmen t right of public access extends to courts-mania I); United States v. Hershey, 20 M.1. 433,436,438 n.6 (C.M.A. 1985) (finding First Amendment right of public access to a court- 9 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 9 of 24 martial proceeding); United States v. Scott, 48 M.J. 663, 665 (A. Ct. Crim. App. 1998) (same); United States v. Sta/y, 35 MJ . 677, 677 (A. Ct. Crim. App. 1992) (per curiam) (same); ABC, Inc. v Powell, 47 M.J. 363 (C.A.A.F. 1997) (F irst Amendment right of access app li es to invest igations under Article 32). As ex pl ained by Wigmore in his seminal treatise quoted in Brown , "[n]ot only is respect for the law increased and intelli gent 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." Wigmore, Evidence (3 d ed.) ? 1834, quoted in BroWII , 22 C.M. R. at 45 ; see also United States v. Hood, 46 M.J. 728, 73 1 n.2 (A. Ct. Crim. App. 1996). Openness is particularly important here, given the world-w ide attention being paid to these proceed ings: Secrecy of judicial action can on ly breed ignora nce and distrust of courts and suspi cion concern ing the competence and impartiality of judges; free and robust reporting, criti cism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system, as well as improve the quality of that system by subjecting it to the cl eansing effects of exposure and public accountability. Nebraska Press Ass '11 v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J. , concurring). See also United States v. Clark, 475 F.2d 240, 247 (2d Cir. 1973) ("Secret hea rings - though they be scrupulously fair in rea li ty - are suspect by nature."); United States v. Scott, 48 M.J . 663, 665 (A. Ct. Crim. App. 1998) (publi c confidence can "quickl y erode" when proceedings are closed); United States v. Anderson , 46 M.J. 728, 73 1 (A. Ct. Crim. App. 1997) (same). As one commentator has cauti oned: "Conducting military commi ss ion tri als today that fall short of both their hi stori c purposes and contemporary standards of justice is likely to stain the reputation of both the American military and the American justice system as a whole." David W. Glazier, Notes, Kangaroo Court or Competent Tribunal?: Judging the 21st Centllly Militwy Commission , 89 VA . L. REV. 2005, 2093 (2003). 10 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 10 of 24 B. To Overcome The Public's Access Rights, The Government Must Demonstrate A Substantial Probability Of Risk To National Security or Personal Safety As an element of the supreme law of the land, the constitutional access ri ght necessarily supersedes any contrary law, rule or regu lation. While the constitutional access right is a qualified ri ght, not an absolute right, a proceeding subj ect to the First Amendment right may be closed only if the party seeking to sea l can satisfy a rigorous four-part test. Different verbal formulations have been used by various courts to defin e the showing that must be made , but the governing standard applied by the Supreme Court encompasses four di stinct factors: l. There must be a substantial probability of prejudice to a compelling interest. Anyone seeking to restrict the access ri ght must demonstrate a substantial probability that openness will cause harm to a compelling governmental interest. See, e.g., Richmond Newspapel:5, 1nc. v. Virginia, 448 U.S. at 582; PressEnterprise 1, 464 U.S. at 510; Press-Enterprise 11, 478 U.S. at 13- 14. In PressEnterprise 1, the Supreme Court stressed that a denial of access is permi ssible on ly when "essential to preserve higher va lues." 464 U. S. at 510. In PressEnterprise 11 it specifically he ld that a " reasonable likelihood" standard is not sufficiently protective of the access right, and directed that a "substantial probability" standard must be applied. 478 U.S. at 14- 15. There must be no alternative to adequately protect the threatened interest. Anyone seeking to defeat access must furth er demonstrate that there is nothing short ofa limitation on the constitutional access right that can adequatel y protect the threatened interest. Press-Entelprise 11, 478 U. S. at 13- 14. A "trial judge must consider alternat ives and reach a reasoned conclusion that closure is a preferable course to follow to safeguard the interests at issue. " 1n re The Herald Co., 734 F.2d 93, 100 (2d Cir. 1984). Any restriction on access that is imposed must be effective. Any order limiting access must be effective in protecting the threatened interest for which the limitation is imposed. As articu lated in Press-Enterprise 11, 478 U.S. at 14, the party see king sec recy must demonstrate "that closure wou ld prevent" the harm sought to be avoided. See 1n re The Herald Co. , 734 F.2d at 101 (closure order cannot sta nd if "the information sought to be kept confidential has already been given sufficient pub lic exposure"); Associated Press v. Us. District COllrt, 705 F.2d 1143, 1146 (9th Cir. 1983) (must be "'a substantial probability that closure will be effective in protecting aga inst the perce ived harm '" (citation om itted)) . Any restriction on access must be narrowly tailored. The Supreme Court has long recognized that even " legitimate and substantial" governmental interests "cannot be pursued by means that broadly stifl e fundamental personal liberties \I 2. 3. 4. 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 11 of24 when the end can be more narrowly achieved. " Shelton v. Tu cker, 364 U.S. 479, 488 ( 1960). Any limitation imposed o n public access thus must be no broader than necessary to protect the threatened interest. See, e.g., Press-Enterprise 11, 478 U.S. at 13- 14; Lugosch , 435 F. 3d at 124; In re New York Times Co. (Biaggt), 828 F.2d at 116. The adjudicatory tribunals of the mili tary branches have applied these same standards to their proceedings. As explained in Hershey, "the party seeking closure must ad vance an overridin g interest that is like ly to be prejudiced [by openness]; the closure must be narrowly tailored to protect that interest; the trial court must consider reasonabl e alternatives to closure; and it must make adequate findin gs 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 o n the record for her acti ons. Consequentl y, she abu sed her di scretion in closing the court-marti al. "). The Arm y Court of Military Appeals has also applied thi s standard as the substantive prerequi site for a court to enter a " protective order" limiting publi c access to doc uments admitted into ev idence in a coun martial proceeding. See Scott, 48 M.J . at 665 . C. The Fact That Classified Information May Be Discussed is Not, By Itself, An Adequate Grounds for Closing A Commission Proceeding Although the Government was able to arti culate it s oppos ition to the defense motions in a publicl y fil ed document, it apparentl y seeks closure of any portions of the hearing on defendant's di scovery motions where class ifi ed info nnati on is di scussed. The Government, however, cannot j ustify the clos ing ofa criminal proceeding simply by observing that "cl ass ified" information will be disc ussed, and asserting that " nat ional sec uri ty" concerns are thu s automatically present. As Justice Bl ack warned in the Pentagon Papers case: The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fund amental law embodi ed in the First Amendment. The guarding of military and dipl omatic secrets at the expense of informed representati ve government provides no rea l securi ty for our Republic . 12 100526035;\'2 ) Filed with TJ 12 July 2012 Appellate Exhibit 0938 (AI-Nashiri) Page 12 of 24 United States v. New York Times Co., 403 U.S. 7 13, 7 19 (1 97 1) (Black, J. , concurring). Advancing this same theme, the Fourth Circuit has aptly noted that "the mere assertion of national sec urity concerns by the Government is not sufficient reason to close a hearing or deny access to documents . . . . Rather, [co urts] must independentl y detemline whether, and to what extent, the proceedings and documents must be kept under sea l." United States v. MOllssao ll i, 65 F. App 'x 88 1, 887 (4th Cir. 2003) (unpublished) (internal citation omitted). Consistent with their obligation to uphold pub lic access rights, courts previously have rej ected the argument that the he ightened First Amendment closure requirements are sati sfied automaticall y whenever cl ass ified information is invo lved: [T]roubled as we are by the ri sk that disclosure of cl assified information could endanger the lives of both Americans and their foreign informant s, we are eq uall y troub led by the notion that the judiciary shou ld abdicate its dec ision-making responsibility to the executive branch whenever national sec urity concerns are present. Hi story teaches us how easily the spectre of a threat to "nationa l security" may be used to justify a wide variety of repress ive government actions. A blind acceptance by the courts of the government' s insistence on the need for secrecy, without notice to oth ers, without argument, and without a statement of reasons, would impermiss ibly compromi se the independence of the judiciary and open the door to poss ible abu se. In re Washington Post, 807 F.2d 383, 39 1-92 (4th Cir. 1986). The MCA's prov isions governing the handling of cl assifi ed information in these proceedings are deri ved fro m, and premi sed upon, the Classifi ed Infonnation Procedures Act ("C IP A"). The crr A statut e does not trump pres umption of access to a public tri al. "Even disputes about cl aims of national security are litigated in the open." Union Oil Co. v. Lea vell, 220 F.3 d 562, 567 (7th Cir. 2000)(citing New York Times Co. v. Un ited States, 403 U.S. 7 13 (1 971 )); see also United States v. Progressive, Inc., 467 F. Supp. 990 (W.O. Wis. 1979). 13 100526035;\'2 ) Filed with TJ 12 July 2012 Appellate Exhibit 0938 (AI-Nashiri) Page 13 of 24 Notabl y, all coun s to address the issue have uniforml y held that CLPA neither purports to - nor could it - override the requirements of the First Amendment with respect to public access to the trial itse lf. See, e.g. , In re Washington Post Co., 807 F.2d at 393 (even ifC IPA " purported to resolve the iss ues raised here, the di strict court would not be excused fro m making the appropriate constitutional inqui ry"); MOllssaolli , 65 F. App'x at 887 (a lthough press did not seek access to class ified information, court noted "C rPA alone cannot justify the sealing of ora l argument and pl eadings"); United States v. Poindexter, 732 F. Su pp. 165, 167 n.9 (D.D.C. 1990) ("C rPA obv iously cannot override a constitutional ri ght of access"); United States v. Pelton , 696 F. Supp. 156, 159 (D. Md. 1986) (holding that CIPA statute does not provide for the closure of a criminal trial and First Amendment standards must be sati sfied prior to closure of crimina l trial).6 CrPA does not relieve the Government of its hea vy constitutional burden to overcome the public's access right. Notwithstandi ng CIPA, thi s Commi ss ion is required to make an independent assessment of whether the Government has met its burden, and may not blindly accept a blanket insistence of secrecy for all purponedly class ified information. Merely because information is class ifi ed does not automatica ll y mean that either a " likelihood" or a "substantial probability" exists that its disclosure in a criminal prosec ution w ill harm our national securi ty.7 6 See also United States v. Rosen, 487 F. Supp. 2d 703, 71 0 (E .D. Va. 2007) ("C losing a trial, even partiall y, is a highly unusual result disfavored by the law. A statute, even one regulating the use of classified infonnation, should not be construed as authorizing a trial closure . . . . Rather, because a trial closure implicates important constitutional rights, CIPA should not be read to authorize closure absent a clear and explicit statement by Congress in the statutory language.") See Too Many Secrets: Overc1assification as a Barrier to Critical/II/ormation Sharing: Hearing Before the Subcomm. on National Security, Emerging Threats, and International Re lations of the Comm. on Government Refonn 108th Congo 263 at 82-83 (2004) (statement of J. William Leonard, Director, Infonnation Security Oversight Office, National Archives and Records Adm inistration) (estimat ing that more than 50 percent of all classified government infonnation has been improperly designated as such); see also Pub. L. I I 1-258, ? 2, 124 Stat. 2648 (Oct. 7, 20 I0) codifi ed at 6 U.s.c. ? 124m & 50 U.S.c. ? 7 14 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 14 of 24 To sati sfy its constitutional burdens, before excluding the public the Government must make a factual showing that each step of the four? part test is sati sfi ed with respect to spec ific items of information. Discuss ion only of those items may be withheld, even temporaril y. fl. THE GOVERNMENT SHO ULD STRICTLY BE HELD TO ITS CONSTITUTIONAL BURDEN OF ESTABLlSH1NG A PROPER FACTUAL BASIS FOR SECRECY The Government' s apparent request to close portions of the hearing on defendant' s motions for di scovery relating to his arrest, detention and rendition must be considered in light of all that is already publi cly known about these iss ues. The Government cannot credibl y establish a ri sk to nati onal sec urity or personal safety from di scussion in the courtroom of informati on that is already widely known and ava il able on the Internet. And the circumstances of Mr. al Nashiri 's detention have alread y been the subj ect of signifi cant public and press attenti on worldwide. Reports include detail s about "enhanced interrogation techniqu es" empl oyed on Mr. Nashiri (waterboarding, blindfolding the deta inee and holding an electric drill near hi s ear, discharging a fireann in an adj acent holding ce ll) , the government agency in volved (C IA), and the locations where such techniques were utilized (e.g., Afghani stan, Thail and , Poland). Here, mere ly by way of illustration, is a non-exhausti ve compilation of news reports and other publicl y availabl e reports that address, in significant detail, the treatment Mr. al Nashiri is all eged to have been subj ected to while in U.S. custody: NY Times o Joanna Berendti & Nicholas Kulish, Polish Ex-q fficiai Charged With Aiding C. I. A., NEW Y ORK TIMES (Mar. 27, 2012), http://www .nytimes.comI20 12/03128/worl dleurope/poli sh? ex-offi c ial-charged-with-aiding-c ia.html ?scp= 1&sq=nashiri+and+pol and&st=nyt 135d (the Reducing Over-Classificat ion Act) (congressiona l fi nding that " the over- cl assification of infomlation . . . needlessly limits stakeholder and publ ic access to in form ation."). 15 100526035;\'2 ) Filed with TJ 12 July 2012 Appellate Exhibit 0938 (AI?Nashiri) Page 15 of 24 o " In Poland, deta inees were held in a makeshift prison at a secret base near Szymany Airport, about 100 miles north of Warsaw. A ll three of the c. 1.A. pri soners who were water boarded are believed to have been held in Poland, incl uding . . . Abd ai-Rahim al-Nashiri , who is charged in the 2000 bombing of the American destroyer Co le." o Charlie Savage, Prepares to Lift Ban on Guantimamo Cases, NEW Y ORK TIMES (J an. 19, 20 II ), http://www .nytimes.coml2011 /01 /20/us/20trials.html o "[H] e was previo usly he ld in secret Central Intelligence Agency prisons and is one of three deta inees known to have been subj ected to the drowning technique known as waterboarding"; " Last year, Polish prosecutors in vest igat ing a now-closed C. I. A. prison granted Mr. Nashiri 'victim status. '" u.s. o o Mark Mazzetti , C. I. A. Document Details Destruction o/Tapes, NEW YORK TI MES (A pr. 15, 20 I 0), http://www. nytimes.coml2010/04/1 6/us/ 16tapes. html o " In 2002, C.I .A. operatives in Thailand videotaped the interrogations of Abu Z ubaydah and Abd ai-Rahim al-Nashiri, two Qaeda suspects whom the C I.A. was holding in sec ret in that country." o T imes Topi cs, Abd ai-Rahim al-Nashiri, NEW YORK T IMES (Apr. II , 20 12), http://to pi cs.n ytimes.com/top ics/reference/timestopics/peopl eInlabd _ alrahim _ al_ n ashirilindex. html o Goes into deta il about the interrogation techniques used, including: o "one of three detainees subj ected to the suffocation technique ca lled waterboarding"; o "the C.I.A. inspector general called his the " most significant" case of a detainee who was brutalized in ways that went beyond the Bush administration ' s approved tactics"; o "the inspector general said, Mr. Nashiri 's interrogators threatened him with a power drill in a mock exec ution" o Mark Mazzetti, Says C. I. A. Destroyed 92 Tapes 0/ Interrogations, NEW Y ORK TIMES (Mar. 2, 2009), http://www. nytimes.comI2009/03/03/washington/03webintel.html?scp=7&sq=nashiri +and+thail and&st=nyt o "The tapes had been held in a safe at the C I. A. stat ion in Thail and , the country where two detain ees - Abu Zubaydah and Abd ai-Rahim al-Nashiri - were interrogated." u.s. CNN o Tim Li ster, Ten years oJ'Gitmo ' -- and more to come, CNN (J an. 11 ,201 2), http://www .cnn .com/201 2/01 / 11 /world/analys is-g itmo-ten-yearsli ndex. html 16 100526035;\'2) Filed with TJ 12 July 2012 Appellate Exhibit 0938 (AI-Nashiri) Page 16 of 24 o "A I-Nashiri's case is emblematic of much of the controversy sw irling around Guantanamo. The CIA inspector-general found in 2004 that he was water-boarded and had a power-drill revved close to hi s head while being interrogated in 2002 at a ' bl ack site' in Thailand, whi ch may complicate the task of prosecuting him. " Associated Press o Adam Goldman, Report: CIA ofJicer implicated in abuse case back at work, ASSOCIATED PRESS (Sept. 7, 20 I 0), http://www. msnbc .msn. com/idl39043456/ns/us_ news-securit y/# o o o "A I-Nashiri was captured in Dubai in November 2002 and was taken to another CIA secret prison in Afghanistan known as the Sa lt Pit - a fac ility that fi gures in a separate Durham prosecution ofa deta inee death in 2002. A I-Nashiri was fl own to still another secret C IA prison in Thail and, where he stayed briefl y, then taken to the Po land pri son o n Dec. 5, 2002, just days after that fac ility was o pened. In Po land , al-Nashiri was su bjected to a seri es of enhanced interrogation techniques - incl uding some not authorized by Justice Depa rtment guidelines." "According to the rev iew, Albert took an unloaded semi automatic handgun to the ce ll where al-Nashiri was shackled. The offi cer then racked the slide - a coc king acti on - of the unloaded weapon once or twice next al- Nashiri's head, according to the rev iew." "The special review sa id that, probably on the same day, Albert revved a power drill to fri ghten a l-Nashiri , who had been left naked and hooded" o New Charges Filed Against Suspect ill Us.s. Cole Bombing, ASSOCIATED PRESS (Apr. 20, 20 II ), http://www .nyt imes.com/20 11 /04/2 1/usl2 l gitmo.html ?scp=2&sq=nashiri+and+po land&s t=nyt o " Mr. Nashi ri was captured in Dubai in November 2002 and fl own to a C.I.A. prison in Afghanistan known as the Salt Pit before being moved to a cl andestine C.I. A. fac ili ty in Thailand, where he was waterboarded h\'ice." Wall Street Journal: o Jess Bra vin , Treatment a/Suspect Is issue in Cole Trial, WALL STREET JOURNAL (Jan . 17, 201 2), http://o nline.wsj .com/artici e_email/S BI 000 14240529702045559045771675704355 109 12 -IMyQiAxMT AyM D AwN D EwN DQyWj. html ? mod~ wsLshare_email o "The shac kl es, by whi ch Mr. Nashiri 's legs are attached to a bolt in the fl oor, recall his conditions when agents put a gun to his head and threatened him with a power drill , sa id Mr. Kammen, a civili an death-penalty spec ialist from Indi anapo li s. He sa id the shackles cou ld tri gger post-traumat ic stress disorder in Mr. Nashiri ." "The gun and power-drill incidents were detailed in a long-withheld 2004 Central Intelligence Agency report released in 2009. The government didn 't 17 100526035;\'2) Filed with TJ 12 July 2012 o Appel late Exhibit 0938 (AI?Nashiri) Page 17 of 24 dispute Mr. Kammen's account at the hearing and didn't have immediate comment afterward ." o Jess Bravin , Cole Suspect 's Trial Tests Gitmo Rules , WALL STREET JOURNAL (Nov . 10, 20 11), http://online.wsj.com/article_email/SB I 000 1424052970204224604577028240352809390 -IMyQi AxMT AyMDA wND EwN DQyWj .html?mod=wsLshare_ emai I o "The Saudi -born Mr. Nashiri spent years in the secret prisons o f the Central Intelli gence Agency after hi s 2002 capture, where he \\'as one of three detainees the government acknowledges were waterboarded during a harsh interrogation regime defense attorneys describe as torture. Mr. Nashiri's attorneys indicated that their strategy cou ld focus on hi s treatment. " o Dan Slater, Gov 't Seeh Death for Saudi Charged With USS Cole Bombing, WALL STREET JOURNAL (Jnne 30, 2008), http://blogs.wsj.com/law/200 8/06/30/govt-seeksdeath -for-saud i-charged -with -uss-co Ie-bomb ingI?b log_ id= 14& post _ id =6066 o " Last year, at a Gitmo hearing, Nashiri confessed to helping plot the Co le bombing only becau se he was tortured by U.S. interrogators. The CIA conceded that Nashiri was among terrorist suspects subjected to waterboarding in 2002 and 2003." o S iobhan Gonnan, Peter Spiegel, Cam Simpso n, Special Proseclitor to Probe CIA Handling of Ten"or Suspects, WALL STREET JOU RNAL (Aug. 25, 2009), http ://on line.wsj .com/articl e_ email/S B 125 111 55986555357 1IM yQiAxMT IyNT AxND EwMTQ I Wj. html ? m od~ wsLshare_ emaiI 0" the Ju st ice Department released a heavil y redacted report from the CIA ' s inspector genera l . . . ." o "The report desc ribes the threat of the use o f a handgun and power drill on the alleged architect ofU .S.S. Co le bombing, A bd ai-Rahim al-Nashiri. The debriefer took an unloaded semiautomatic handgun and simul ated a bullet being chambered twice near Mr. Nas hiri 's head." "That debriefer also helped stage a ' mock execution ,' in which a gun was fired outside an interrogation room and a guard , dressed up to look like a hooded detainee, posed motionl ess on the ground when the real detainee passed to ' appear as if he had been shot to death. ", " Mr. Nashiri was also held in 'potentiall y injurious stress positions' that hadn't been specifi ca ll y authorized that could have dislocated his arms from hi s shoulders. Interrogators also used ' a stiff bru sh that was intended to induce pain' o n Mr. Nashiri , and they stood on hi s shackles, which resulted in cuts and bruises on hi s ankles." o o The Guardian 18 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 18 of 24 o The Guantanamo Fil es: The documents, Gllalltallamo detaillee./iie: Abd ai-Rahim Hussein Muhammad Abdah al-Nashiri US9AF-OJOOI5DP, THE GUARDIAN (Apr. 24, 20 II ), http://www.guardian.co.uk/worid/guantanamo- fil esIUS9SA-0 I 00 15DP Peter Beaumont, Bombsheii report 011 CIA interrogations is leaked, THE GUARDIA N (Aug. 22, 2009), hup ://www .guardian. co. uk/wo rldJ2009/augl22/cia-interrogat ion -report -Ieak ed o "The report is understood to describe moc k executions where interrogators tried to get detainees to talk by firin g a gun in an adjoining room to pretend another prisoner had been killed. Accord ing to leaked information from the report, Abd ai-Rahim al-Nashiri was threatened with a drill and gun during hi s detenti on at one of the CIA's so-ca ll ed black site prisons after his capture in 2002 . He was subj ected to the near-drowning tec hnique known as waterboard ing, as were two other al-Qaida leaders." o G lobalsecu rity .org o Profi le on Abd ai-Rahim al- Nashiri , GLOBA LSECURITY .ORO, http://www .globa lsecurity .org/sec urity/profi les/abd _ alrahim al -nashiri.htm Voice of America o Ai-Qaida Suspect Files Human Rights Case Against Poland, VOICE OF AMERICA (May 9, 20 I I), http: //www.voanews.com/engl ish/news/usa!A l-Qa ida-Suspect-F iles- H umanRights-Case-Aga inst-Poland- 12 1579 139.html o "The lawyers cl aim that Saudi Arab ian Abd al Rahim al-Nashiri , 46, was held and tortured in a secret CIA so-called 'b lack site' prison in an intelli gence base north of Warsaw from December 2002 to Jun e 2003 ." U.S. Government documents: o o The 9-1 I Commission Report, Chapter 5. 1 (Jul y 22, 2004): http://gov info.library. unt.edu/9 1I1report/9 1IReport .pdf C IA Inspector General's Report (May 7, 2004), COllnter- Terrorism Detention alld Interrogation Activities (September 201 I - October 2003) (declassified): http://med ia.washingtonpost. comlwp-srv/nation/document s/cia_report. pdf (detail s the use of various enhanced interrogation techniques; including at 36): o o psychologist/interrogators began AI-Nashiri's interrogation using EITs immediate ly upon his arriva l. AI-Nashiri provided lead information on other terrori sts during his first day of interrogation . 19 100526035;\'2) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 19 of 24 o On the twe lfth day of interrogation, [redacted] psychologist/interrogators administered two app li cations of the waterboard to AI-Nashiri during two separate interrogation sessions. Enhanced interrogat ion of AI-Nashiri continued through 4 December 2002[.] 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten AI-Nashiri int o disclosing information. After discussing thi s plan with [redacted] the debriefer entered the cell where AI-Nas hiri sat shackled and racked the handgun once or twice close to AI-Nas hiri's head . . . . On what was probably the same day, the debriefer used a power drill to frighten AI-Nashiri . With [redacted] consent, the debriefer entered the detainee's cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch A I-Nashiri with the power drill OIG rece ived reports that interrogation team members employed potential ly injuri ous stress positions on AI-Nashiri. AI-Nashiri was required to kneel on the floor and lean back. On at least one occas ion, an Agency offIcer reported ly pushed A I-Nashiri backward whil e he was in this stress position. On another occasion [redacted] said he had to intercede after [redacted] [redacted] ex pressed concern that AI-Nashiri's arnlS mi ght be dislocated from hi s shoulders. [redacted] ex pl ained that, at the time, the interrogators were attempting to put AI-Nashiri in a sta ndin g stress position. AI-Nash iri was reportedly li fted off the floor by hi s arms while his anns were bound behind his back with a belt. o (at 42): o (at 44): o o Defense Report 2007 - Transcript of Combatant Status Review Tribunal Hearing, http://projects.nytimes.comlguantanamo/detainees/ l 00 15-abd-a l-rahim-a lnashirildocument sl7 o A I-Nashiri on his torture - claims " From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way." Says he was tortured up until he was brought to Guantanamo, at wh ich point the "pressure" ceased. o Jurist: o Caitlin Price, ClA chieJ cOI!/irms use oj waterboarding on 3 terror detainees , JURIS (Feb. 5, 2008), http: //j urist .Iaw .pitt .edu/paperchaseI2008/02/cia-c hi ef-con finn s-use-ofwaterboarding.php 20 100526035;\'2) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI?Nashiri) Page 20 of 24 o Gabrie l Habou bi, Gliantanamo detainee says tortllre prompted cOf!fession to USS Cole bombing, JURIST (Mar. 30,2007), http://j uris t .Iaw .pitt. ed u/paperchasel2 007/031guan tana mo-deta inee-sa ys-torture .ph p Th is is just a sampling of the readi ly availab le public information. The Commi ss ion can, indeed must, take notice of the extensive amount of information that is a lready in the public domain - much of it as a direct resu lt of officia l U.S. Government statements and publi cations concerning the arrest , detention and rendition of this defendant . There is simpl y no basis for cl os ing proceedings that address information a lready in the publi c domain. See, e.g., i n re Charlotte Observer, 882 F.2d 850, 853-55 (4th Cir. 1989) (find ing it "dubious" that harm to defendant' s fair trial rights will result from re-publication of information already in the pub lic domain ; and, " [w]here closure is wholly inefficac ious to prevent a perceived harm , that alone suffices to make it constitutiona ll y impermiss ible."); in re New York Times, 828 F.2d liD, 11 6 (2d Cir. 1987) (holding that sea ling of court papers is not proper where much of the infomlation contained in them " has already been publicized"); CBS v. United States Dist. COllrt, 765 F.2d 823,825 (9th Cir. 1985) (findin g that a substantial probab ili ty of prejudice ca nnot ex ist when "most of the infonnation the government seeks to keep confidential concerns matters that mi ght eas il y be surmi sed from what is a lready in the publi c record"). To shield from public view the arguments of counsel about information a lready known to the publi c would violate the public's constituti ona l rights and underm ine the legitimacy and credibility of military commi ss ions. "'Not only is respect for the law increased and intelligent acquaintance acqu ired 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 grollnds by United States v. Grunden , 2 M .l. 116 (C.M .A. 1977); 21 100526035;\'2 ) Filed with TJ 12 July 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 21 of 24 United States v. Travers , 25 MJ. 6 1, 62 (CM.A . 1987) ("public confidence in matters of military justice would qui ckly erode if courts-mart ial were arbitrarily closed to the public."); United States v. Hood, 46 M.J. 728, 731 & 0. 2 (A. Ct. Crim. A pp. 1996) ("'Openness thus enhances both the basic fairness of the criminal trial and the appearance o f fairness so essential to publi c confidence in the system. ", (quoting Press-Enterprise 1, 464 U.S. at 508 )). No r does it satisfy the Government's obligation simply to suggest that use of the 40second delay switch to temporarily close portions of a proceeding is a narrow limi tat ion of the access right. The First Amendment right of access to judicial proceedings is a right of contemporaneous and timely access to information. See, e.g. , Lugosch, 435 F.3d at 126-27 (emphasizing " the importance of immed iate access where a right to access is found"); Hirschkop v. Snead, 594 F.2d 356, 373 (4th C ir. 1979) (" the first amendment protects not on ly the content of speec h but also its timeliness"). As the Supreme Court observed in Nebraska Press Association v. Stuart, "[dJelays imposed by governmental authority" are inconsistent with the press ' " traditional function of bringing news to the publi c promptl y." 427 U.S . at 560-6 1. Put simpl y, " ' each pass ing day may constitute a separate and cognizabl e infringement of the First Amendment. " , CBS Inc. v. Davis, 5 10 U.S. 13 15, 13 17 ( 1994) (B lackmun, 1., in chambers) (quoting Nebraska Press Ass '1/ v. Sluart, 423 U.S . 13 19, 1329 (1975) (B lackmun, J., in chambers)); Lugosch, 435 F.3d at 126-27 (''' loss of First Amendment free doms, for even minimal periods of time, unquestionabl y constitutes irreparabl e injury"') (citat ion omitted). Before any aspect of the proceeding may be closed, the Government must satisfy the four elements of its const ituti onal burden. The fact that it was able to present its written lega l objections without reference to any sea led infonnation only furth er reinforces the concl usion that defendant's pending discovery motions can be resolved without any need for secret proceedings. 22 100526035;\'2 ) Filed with TJ 12 Ju ly 2012 Appel late Exhibit 0938 (AI-Nashiri) Page 22 of 24 6. Oral Argument. The Press Obj ectors are prepared to argue thi s motion if oral argument would be useful to the Commi ssion, but otherwise rest on these written obj ecti ons. 7. Attachments. A. Certifi cate of Service, dated Jul y 12, 201 2. WHEREFORE , Press Obj ectors respectfull y ask thi s honorable Tribunal to deny any request to close any portion of the proceedings in this prosecuti on unless the Government fi rst makes the strict factual show ing required to overcome the constitutional right of public access . Dated: July 12, 20 12 New York, New York LEVrNE SULLIVAN KOC H & SCHULZ, LLP By: Steven D. Zansberg Jacob P. Go ld stein 32 1 West 44th Street, Sui te 5 10 New York, NY 10036 Email : dschul z@ lskslaw.co m (2 12) 850-6100 Tel: Fax : (212 ) 850-6299 D~~ Attorneysfor Press Objectors 23 100526035;\'2 ) Filed with TJ 12 July 2012 Appellate Exhibit 0938 (AI-Nashiri) Page 23 of 24 CERTIFICATE OF SERVICE I certi fy that on the 12th day of July 201 2, I fil ed AE 093 , Response/Oppositio n by 14 News Organizat ions to Potential C losure of Hearing on Defense Motions, w ith the O ffi ce o f M ilitary Co mmi ssions T rial J udiciary and served a copy on counse l by emailing it to the fo llow ing: Chi ef Clerk of the Trial Judi ciary Donna Wilkin s Ret. Navy Vice Admiral Bruce Mac Donald Anny Brig. Gen. Mark Martins Marine Co l. Jeffrey Colwe ll Anthony Mattivi, Esq . Navy Lt. Cmdr. Stephen Reyes Jacob P. Go ldstein, Esq . 24 100526035;\'2 ) Filed with TJ 12 July 2012 Attachment A Page 1 of 1 Appel late Exhibit 0938 (AI-Nashiri) Page 24 of 24