THE RECORD - New York City Bar Association

THE RECORD 

OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 

winter/Spring 2002 vol. 57, No’s. 1-2 

RESPONDING TO 

SEPTEMBER 11th 

W I N T E R / S P R I N G 2 0 0 2 ◆ V O L. 5 7, N O ’ S. 1-2 

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THE RECORD 

WINTER/spring 2002 vol. 57, No’s. 1-2 

Contents 

INTRODUCTION 

PRESIDENT’S SEPTEMBER 14, 2001 LETTER TO ASSOCIATION 

MEMBERS 

IN MEMORIAM 

AFTER SEPTEMBER 11: 

NATIONAL AND INTERNATIONAL LEGAL TASKS 

Justice Stephen G. Breyer 

ENDURING VALUES AND CHANGING TIMES 

Chief Judge Judith S. Kaye 

LETTER TO IMMIGRATION AND NATURALIZATION SERVICE, 

RE: INS NO. 2171-01 CUSTODY PROCEDURES, 66 FED. 

REG. 48334 (SEPTEMBER 20, 2001) 

The Committee on Immigration and Nationality Law 

INTER ARMA SILENT LEGES: IN TIMES OF ARMED CONFLICT 

SHOULD THE LAWS BE SILENT A REPORT ON THE PRESIDENT’S 

MILITARY ORDER OF NOVEMBER 13, 2001, REGARDING 

“DETENTION, TREATMENT, AND TRIAL OF CERTAIN 

NON-CITIZENS IN THE WAR AGAINST TERRORISM” 

The Committee on Military Affairs and Justice 

THE PRESS AND THE PUBLIC’S FIRST AMENDMENT 

RIGHT OF ACCESS TO TERRORISM ON TRIAL: A POSITION PAPER 

The Committee on Communications and Media Law 

SEPTEMBER 11 TH LEGAL INITIATIVE 

RECENT COMMITTEE REPORTS 

NEW MEMBERS 

Cover photo: Rick Kopstein/iwitnessphotos.com 

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THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW 

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Materials. Copyright © 2002 The T H Association E R E C of O R the D Bar of the City of New 

York. All rights reserved. 

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EDITORIAL BOARD 

EVAN A. DAVIS 

President 

DANIEL F. KOLB 

Chair, Executive Committee 

BARBARA BERGER OPOTOWSKY 

Executive Director 

MARK WOLKENFELD 

Editor 

ALAN ROTHSTEIN 

General Counsel 

HOW TO REACH THE ASSOCIATION 

MAIN PHONE NUMBER: 

(212) 382-6600 

WORLD WIDE WEB ADDRESS: 

http://www.abcny.org 

PRESIDENT 

Evan A. Davis 

(212) 382-6700 

edavis@abcny.org 

EXECUTIVE DIRECTOR 

Barbara Berger Opotowsky 

(212) 382-6620 

bopotowsky@abcny.org 

GENERAL COUNSEL 

Alan Rothstein 

(212) 382-6623 

arothstein@abcny.org 

ADMINISTRATIVE SERVICES 

Robin Gorsline 

(212) 382-6689 

rgorsline@abcny.org 

ADVERTISING 

Sharon MacNair 

(212) 382-6630 

smacnair@abcny.org 

MEMBERSHIP AND BENEFITS 

Melissa Halili 

(212) 382-6767 

mhalili@abcny.org 

CITY BAR FUND 

Maria Imperial 

(212) 382-6678 

mimperial@abcny.org 

COMMITTEE MEMBERSHIP 

Stephanie Rook 

(212) 382-6664 

srook@abcny.org 

COMMUNICATIONS 

Andrew J. Martin 

(212) 382-6713 

amartin@abcny.org 

CONTINUING LEGAL EDUCATION 

Michelle Schwartz-Clement 

(212) 382-6606 

mschwartz-clement@abcny.org 

LAWYER ASSISTANCE PROGRAM 

Eileen Travis 

(212) 382-5787 

etravis@abcny.org 

LEGAL REFERRAL SERVICE 

Allen J. Charne 

(212) 626-7373 

lrs@abcny.org 

LIBRARY 

Richard Tuske 

(212) 382-6742 

rtuske@abcny.org 

Copy Services: (212) 382-6711 

Reference Desk: (212) 382-6666 

MEETING SERVICES 

Nick Marricco 

(212) 382-6637 

nmarricco@abcny.org 

SMALL LAW FIRM CENTER 

(212) 382-4751 

slfc@abcny.org 


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Introduction 

This issue of The Record is devoted to materials that illustrate some of 

the ways the Association and legal profession in New York City were affected 

by and responded to the September 11 terrorist attack on the World 

Trade Center. It is dedicated to the six members of the Association and a 

former employee of the Association who died in the attack: Richard A. 

Aronow, Mark A. Brisman, Kirsten L. Christophe, Charles Austin McCrann, 

John M. Moran, David B. Weiss and Joanna Vidal. 

These members of our City Bar family and the others killed or injured 

as a result of the September 11 attacks join countless other victims of 

crimes of hate whom family, friends and colleagues have mourned through 

the centuries. Following September 11, however, we have seen our profession 

take on a new attitude of engagement and purposefulness. We seem 

more determined that hate and bigotry will lose and that justice will win. 

Our goal should be to have this new attitude endure. If it does, the 

fuller engagement of the profession in the great contest for a more secure 

and just city, nation and world will be an excellent memorial to the victims 

of September 11. 

T H E R E C O R D 

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President’s Letter to 

Association Members 

September 14, 2001 

Dear Member of the Association of the Bar: 

The goal of the terrorist is to confuse, disorient and weaken. As Mayor 

Giuliani has emphasized, we must do our best to frustrate this goal by 

bearing the unbearable and restoring as much of the structure of our 

daily life as we can as quickly as possible. 

In our society much of the basic structure is provided by law and by 

the judges and lawyers who use the law to promote business, public safety 

and the rights and welfare of all our people. 

I am so proud of how the New York City Bar has responded to the 

current emergency. There has been an outpouring of offers of assistance 

from law firms, individual lawyers, legal institutions and organizations, 

from opening their offices to lawyers who need a place to work to providing 

free service to people affected by the tragedy. 

Our House and Library are open to any lawyer who needs a place to 

work, meet with clients or make cell phone calls. Lawyers who would like 

to volunteer their services, and firms that have space available where displaced 

lawyers can work, should call us at 382-6629. We are in the process 

of identifying specific ways that lawyer volunteers can be used. Those 

persons needing legal assistance should be referred to our Legal Referral 

Service at 626-7373. 

I want to extend the Association’s condolences to the friends and 

family of all who were lost. At another time, we will pay fuller tribute. 

The Association, through its committees, will also lend whatever as- 


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P R E S I D E N T ’ S L E T T E R 

sistance it can to addressing the legal and policy issues our nation and 

the rest of the international community faces in dealing with this tragedy 

and its aftermath. 

I want to end by noting the messages of solidarity we have received 

on your behalf from bar associations and law societies in cities across our 

nation and around the world. We can repay their support by doing what 

we do best—setting the very best example of excellence including even 

excellence in denying evil its hoped for prize. 

Sincerely, 

Evan A. Davis 


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In Memoriam 

September 11, 2001 

The following is a special remembrance of Association members and 

former staff who perished in the World Trade Center Tragedy on September 

11, 2001. The text is taken from former colleagues of the 

deceased, Association records and accounts written in The New York 

Times. 

RICHARD A. ARONOW 

Richard Aronow, Deputy Chief of the Port Authority of New York and 

New Jersey’s Law Department, joined the Association in 1982. Richard was 

a long-time active member of the Association’s Transportation Committee. 

In a letter written to Richard’s wife, Laura Weinberg, Robert Bergen, 

Chair of the Transportation Committee, described Richard as a “loyal 

and active” member of the Committee. “His quiet but strong and consistent 

commitment to the values of the Bar Association and to the importance 

of a vibrant and effective transportation system served to sustain 

the work of our Committee throughout his years of participation....While 

his absence from our meetings will be an ongoing reminder of this terrible 

loss, we will also remember Richard’s commitment and devotion to 

the values and professional interests that we shared with him as we carry 

forward.” 

MARK A. BRISMAN 

Mark Brisman, an attorney with Harris Beach, joined the Association in 

1996 and served on the Young Lawyers Committee. “Mark Brisman was a 


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I N M E M O R I A M 

dedicated member of the Young Lawyers Committee in the late 1990s. 

Each year, Mark gave generously of his time to coordinate the massive 

undertaking of reading and grading all competition briefs in the Region 

2 and National Finals level of the Moot Court Competition,” recalled 

Christopher Garvey, Chair of the Committee. “Mark was a practicing attorney 

in the toxic torts field at Harris Beach. He was a wonderful husband 

and devoted father.” 

KIRSTEN L. CHRISTOPHE 

Kirsten Christophe, an attorney with AON Risk Management Services, 

was an Association member for seven years and was active on the 

Association’s Professional and Judicial Ethics Committee and the Professional 

Responsibility Committee. According to a tribute written in The 

New York Times, “Kirsten was recognized as an expert in the field of risk 

management and she often advised law firms on how to avoid malpractice 

claims.” Kirsten had left AON in 1996 but returned to work for the 

company on September 1, 2001. She was described as a devoted wife and 

mother who often took her husband and daughter on business trips. 

MATTHEW G. LEONARD 

Matthew Leonard, Director of Litigation for Cantor Fitzgerald, joined the 

Association in 1988, and was active on the Public Service and Education 

and Federal Legislation Committees. Matt was also active in pro bono 

work, providing free legal services for residents at MFY Legal Services, Inc. 

Often described as generous and giving of his time and abilities, Matt 

would devote as much time to his pro bono efforts as to his professional 

work. Lynn Kelly, MFY’s Executive Director, said Matt was a tireless advocate 

of MFY and a respected and beloved member of the Board. MFY’s 

Board has created the Matthew G. Leonard Award for Exceptional Pro 

Bono Services to be presented annually at the MFY Annual Pro Bono Award 

Event. 

CHARLES AUSTIN McCRANN 

Charles McCrann, a Senior Vice President at Marsh & McLennan, joined 

the Association in 1987 and served on the Association’s Insurance Law 

Committee. Mary Lanning, a former colleague of Charles in the insurance 

industry, recalled his many attributes: “Of Charlie’s many exceptional 

qualities as a man, a father, a professional legal counselor to a 

prestigious financial services firm, and a friend, the traits that I would 

memorialize for the legal community are—of all things—his genuine modesty, 


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his moral fortitude, his intellectual curiosity, his wisdom, his passion for 

history and the human lessons of history, his restraint in face of the 

weaknesses of others, his resourcefulness, his mindfulness of his friends, 

his generous praise of others, his reserve about his own sterling achievements, 

his pleasant accommodation to everyone who asked for his help, 

his balance, his humor, his wit, his integrity, his delight in his family, his 

roguish fascination with the absurd. True to his style, he left a legacy of 

unheralded victories that collectively helped the financial services industry, 

during the last decade, to reconfigure products and services intelligently 

and economically.” 

JOHN M. MORAN 

John Moran, a Battalion Chief with the Fire Department of the City of 

New York, was a member of the Association since 1994. John was one of 

over 300 firefighters killed in the line of duty on September 11. John will 

always be remembered as a devoted father who was an avid outdoorsman 

and kayaker who also had a fondness for singing and entertaining friends 

and family. His cousin, New York Congressman Joseph Crowley, fondly 

remembered John’s vigor for life and devotion to his fellow man. “In 

many respects, my cousin John Moran was larger than life. He has been 

described by many as a Renaissance man. Knowing him as I did, I think 

he would find that description a bit over the top. I wouldn’t,” Congressman 

Crowley said. “He could and would do anything he set his mind 

to—from his dangerous but rewarding job as a FDNY Battalion Chief, to 

sea kayaking in the Atlantic Ocean to graduating from Fordham Law School. 

He could fix or make anything. He possessed a great command of the 

issues and loved to engage in lively debate on all subjects. He truly loved 

this country.” 

JOANNA VIDAL 

Joanna Vidal worked as an administrative assistant in the Association’s 

Meeting Services Department from 1999 until 2000. Joanna left the Association 

to begin a new career as events coordinator for the Risk Waters 

Group. Unfortunately, Joanna’s life was lost on September 11th when she 

attended a breakfast meeting she had coordinated for Risk Waters Group 

at Windows of the World in the World Trade Center. Mariann Owens, 

coordinator of the Association’s Moot Court Competition and one of 

Joanna’s closest colleagues, often recalls Joanna’s warm smile, her loyalty 

to her friends and colleagues and her generous spirit. “ ‘To remember 

Joanna is to remember her smile, a beacon of love, of life, of all that is 


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good in human nature.’ That quote is from Joanna’s guestbook on the 

Internet and it is how everyone felt about her,” Mariann said. “The imprint 

of Joanna’s smile lives on in all the minds of those who knew her.” 

DAVID B. WEISS 

David Weiss, an attorney with Cantor Fitzgerald, was a member of the 

Association for 18 years. David served as Cantor’s Vice President and Deputy 

General Counsel. 


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After September 11: 

National and International 

Legal Tasks 

Justice Stephen G. Breyer 

Hon. Stephen Breyer, Justice of the United States Supreme Court, delivered the 

following lecture at the Conference of World City Bar Leaders, hosted by the 

Association, November 10, 2001. 

hank you for the invitation to speak this evening. I am 

grateful for the opportunity to be in New York. Being here 

helps me understand what New Yorkers have experienced in 

the last two months. Two weeks ago, I visited the site of the 

World Trade Center, where I, like you, experienced a range 

of emotions. I saw what the near worst of human nature Tcan do. I was moved deeply by the memorials, the flowers, the letters, the 

teddy bears, the photographs, and the groups of relatives of victims moving 

through the smoke of the ruins to visit those shrines. I wanted to 

say to each policeman and fireman whom I saw thank you for doing 

what you have done and are doing. And when I saw the relief workers, 

the construction workers, the clearing and the resettling, I realized that 

they and we will re-create order out of devastation and chaos. The events 

of September 11 will continue to bring us together as we learn how to 

respond. 

Being here at an event sponsored by the Bar Association of the City 


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N A T I O N A L A N D I N T E R N A T I O N A L L E G A L T A S K S 

of New York is also an honor. This Association has always served both the 

profession and the public. It helped during the Civil Rights struggle. It 

helped during Viet Nam. It helped in the aftermath of TWA’s flight 800 

disaster. It is helping today, most recently by providing the services of 

nearly 2,500 lawyers to help the victims of September 11. I understand 

that New York lawyers have opened three intake centers where they help 

small businesses and individuals overcome various legal problems including, 

for example, trusts, wills, powers of attorney and others. The Association 

is, as Roscoe Pound once said of the legal profession itself, characterized 

by a “spirit of public service.” This meeting is also sponsored by the 

London, Paris, and Tokyo bars and includes representatives from bars around 

the world. The fact that they are here illustrates the growing legal interdependence 

of our societies. Throughout the world our profession stands 

for law, reason, and civilization—the very antitheses of the force and 

fanaticism we have just seen. 

I had intended to speak at length about that growing legal interdependence. 

We all learn from it. Only recently, for example, Lord Woolf 

introduced a set of judicial reforms in Britain that draws from the French 

experience with expert witnesses and American experience with case management. 

We in turn will learn from British experience with those reforms. 

I shall leave this and similar subjects, however, for a later time and instead 

shall give a different speech. Just as the New York lawyers have been 

directly helping their New York neighbors so in your capacities as national 

and international lawyers you might wish to undertake certain 

national and international legal tasks as part of a long term effort to 

respond to September 11. 

I turn to this topic for two reasons. First, as members of the legal 

profession, we all look for ways to help. The Association has already done 

so. I simply add, tentatively and suggestively, to the profession’s agenda. 

Second, the public is not always aware of how lawyers can and do help in 

these circumstances. It believes lawyers are typically involved in contentious 

advocacy. That was most recently illustrated by a cartoon in the 

New York Times showing a group of trial lawyers parachuting into Afghanistan. 

The caption read “our most feared weapon.” Lawyers, however, 

can work cooperatively, focusing on detail, and creatively finding 

ways to bring together those who would engage constructively in common 

tasks. 

I shall list four areas where this kind of constructive legal work may 

prove helpful. 

I shall initially mention an area that may sound dull and technical 


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S T E P H E N G. B R E Y E R 

but will likely prove important to any long run effort to deal with the 

kind of international attack we have seen—building institutions that can 

respond effectively to a new world order. We built institutions nearly from 

scratch during World War II. And today we must either modify those 

institutions or build new ones so that we can better coordinate the work 

of agencies within the government and so that we can make better use of 

the expertise of those who work outside of government. Lawyers, including 

professional associations such as yours, can play a partial but important 

role in helping such efforts succeed. 

That is because achieving coordination within the government, and 

among state and federal governments, let alone among nations, is far 

more difficult than many believe. The obstacles, in part, are legal. The 

President no longer has the authority to re-organize the federal government 

at the stroke of a pen. Nor are there many federal statutes that 

directly give the President authority that he could delegate to another 

person. Indeed few federal statutes give the President direct authority to 

tell government agencies to do anything. Instead they typically say “the 

Secretary shall . . . ,” “the Agency shall . . . ,” or “the Board shall . . . ,” 

not “the President may . . . .” 

Of course, the President, or someone with access to him, can tell, or 

suggest to, Presidential appointees what they should do. State officials, 

including Governors, will usually listen to the President and try to help. 

But Presidential time is limited; political constraints reserve use of his personal 

authority for priority matters; and the reality of coordination often 

consists of mundane details invisible to the White House. Hence, 

coordination is not something even a President can easily order. It is a 

function of long term institutional relationships, both within the federal 

government and within our federalist system. And designing those 

relationships so that they encourage cooperation calls for knowledge 

of law, administration, government and politics. What this means is 

that legal expertise and practical governmental experience is highly 

relevant. 

Just as important is government’s ability to draw upon the skills and 

knowledge of those outside government. In World War II the British Foreign 

Office employed Isaiah Berlin to write observations about the American 

political mood; the British code-breaking effort, the ULTRA Secret, 

relied on the work of mathematicians from Cambridge, Oxford, and Newham 

College; and the American intelligence agencies actively recruited lawyers 

to work on the Japanese encryption project, MAGIC. (Secretary of War 

Henry L. Stimson wrote that lawyers were “best qualified” for the job, 


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having “experience with organizing and synthesizing numerous facts and 

complicated issues associated with major law cases.”) In fact, Justice Powell, 

then an American intelligence officer, was assigned to work with the British 

on the ULTRA secret. Today we are aware of a similarly urgent need to 

harness the expertise of those outside the government who know about 

medicine, about psychology, about security, about terrorism, about communications, 

about religion, about foreign cultures—so that, as in World 

War II, we can bring the outside specialist’s more expert knowledge to 

bear upon the practical problems of terrorism. 

That need is particularly urgent because in many technical areas public 

distrust of government, reflected in diminished incentives for public 

sector careers (compared to private or academic sectors’ diminished prestige, 

pay, working conditions) has led to a gradual exodus of many midlevel 

and higher-level officials who, two generations ago, might have made 

government a permanent career. Take the legal profession for example. At 

one top law school the percentage of graduates entering government (or 

equivalent) careers has fallen from nearly 15 percent to about 3 percent 

over the course of a generation. 

This decline in the number of individuals willing to enter the public 

sector has coincided with an increase in the legal and institutional obstacles 

which create public/private or public/academic barriers. Consider 

the kinds of laws that can apply to those from academia or the private 

sector, who wish to help the government—where more than short-term 

participation or emergency advice is desired. They include: 1) anti-salary 

supplement laws, which mean the disappearance of what was once called 

the “dollar-a-year man;” 2) disclosure laws, which require complex calculations 

and public statement of every dollar earned or possessed by the 

individual, spouse, and minor children; 3) post-employment restrictions, 

which can forbid an individual who has once worked for the government 

from later working on any matter present in the government department 

during his government employment; 4) conflict-of-interest laws, which 

can prevent an individual from accepting even a lunch from a group 

interested in (and which perhaps itself can help by knowing about) the 

government work at issue; 5) advisory committee laws, which can make 

many of these other laws applicable to an outside expert who seeks to 

help the government part time; 6) sunshine laws, which can expose the 

outside expert to undesired public, perhaps politically-based, criticism; 7) 

security laws, which can keep from the expert the facts necessary to provide 

useful advice. 

Requirements are complex, sometimes uncertain, often burdensome, 


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frequently time-consuming, and not always consistent, as different branches 

of government can impose different obligations upon the same individual. 

For example, the Secretary of Agriculture (some have claimed) may not be 

able to accept lunch from a group of farmers whom he wishes to address 

about farm policy, the relevant statute being somewhat unclear in this 

respect. Some advisory committee rules may impose too heavy a disclosure 

requirement in light of the committee’s purposes and composition. Academic 

and private sector employees may be willing to sacrifice somewhat 

to help the government, but they are unlikely to want to pay too heavy a 

price—one, for example, that significantly limits their future career possibilities 

or substantially erodes their savings—in order to work for the government 

in a mid-level or part-time position. 

Hence, there is a task ahead that is typically legal—a task of facilitating. 

It does not involve sacrificing the important principles that underlie 

those laws. Rather it involves reconciling 1) the important need to bring 

outside expertise to bear upon our national problems and 2) the principles 

underlying the ethics and security related laws. It involves an understanding 

of the relevant institutions, government, academia, the private 

sector. It involves comprehensive review of the relevant rules and 

regulations and an ability to translate them into “plain English” so that 

those whose expertise is needed in government can understand the legal 

ramifications of public service. It involves focusing upon detail and modifying 

the rules, or unreasonable interpretations of them, where necessary 

to facilitate interchange—the kind of cooperative work across institutional 

boundaries—that a long term response to the attacks will demand. The 

Association has engaged in this kind of task before, drafting a Code of 

Ethics for the legislative and executive branches, responding to New 

York’s fiscal crisis in the 70s by improving local finance law, and convening 

commissions to advance the national debate on federal campaign 

finance reform, drug law reform, and effective arms control (a committee 

in which the association’s current president participated). It may wish to 

do so again. 

I shall turn next to an important area where detailed, traditional 

legal work may help, namely that of civil liberties. Security needs escalate 

during wartime and potentially conflict with the desire to maintain personal 

freedom’s peacetime limits. Constructive detailed legal work 

can be done to confine the potential conflict to areas where it is 

unavoidable. 

This is not the first time that the United States has been forced to 

undertake such a balancing. Several examples from U.S. history, discussed 


15


in the Chief Justice’s book about civil liberties in wartime, come to mind. 

Consider, on the one hand, the Civil War, and instances in which the 

conflict was serious. Abraham Lincoln suspended the Writ of Habeas Corpus, 

imprisoned elected legislators suspected of enemy sympathies, declared 

that those engaging in “any disloyal practice” would be subject to martial 

law, and had his Postmaster General ban five New York newspapers 

from the mails after a jury found they contained “vituperative criticism.” 

Was the President right to restrict civil liberties so severely Lincoln himself 

eloquently described the problem. As to habeas corpus, he asked, “Are 

all the laws but one to go unexecuted and the government itself to go to 

pieces lest that one be violated” He added, “It has long been a grave 

question whether any Government not too strong for the liberties of its 

people can be strong enough to maintain its existence in great emergencies.” 

The dilemma is clear. 

On the other hand, we can contrast certain curtailments of civil liberties 

that took place during World War I. Congress, for example, enacted 

a statute that made it a crime to “advocate . . . forcible resistance to any 

law.” Initially the Supreme Court unanimously upheld the conviction of 

Charles Schenck for printing leaflets urging resistance to the draft. But, 

when the Postmaster General banned from the mails a publication called 

The Masses because of four anti-capitalist cartoons, including one labeled 

“conscription” showing a figure grinding down figures symbolizing 

democracy, labor, and the family, Judge Learned Hand objected on 

the ground that the cartoon could not “be said to advocate” forcible 

“resistance to the draft.” And when the Supreme Court affirmed a conviction 

based upon a pamphlet stating that “our entry into [the war] was 

determined by . . . J.P. Morgan’s loans,” Justices Holmes and Brandeis 

dissented. 

Contrast as well the infamous instance during World War II when 

the government removed American citizens of Japanese descent from California 

and interned them in camps. The Supreme Court found the internment 

constitutional. The majority said that the military believed 

in early 1942 that the relocation was necessary, either to help protect 

the West Coast from Japanese military attack or to help protect the Japanese 

Americans from harm by their fellow citizens. The three dissenters, 

Justices Jackson, Murphy, and Rutledge, disagreed. They said that there 

was no justification as of 1942; and they added that, regardless, no 

one could reasonably claim that the internment was still necessary then, 

in 1944. 

I agree with the dissenters and with Judge Hand, Justice Holmes and 


16


Justice Brandeis, and I suspect most of you do too, because I believe that 

these severe curtailments of wartime liberty were not necessary. I doubt 

that they were justified by any security need. By way of contrast the 

Civil War examples reflect greater security needs. I contrast these examples 

with the Civil War curtailments in order to suggest that one important 

legal task is to draft laws that simply avoid the civil liberties/ 

security conflict. 

Traditional legal skills, focusing upon detail, can help. They can seek 

precision in definitions, say of “terrorism” or “terrorist.” They can examine 

the nature of the security threat and seek ways to tailor statutes so 

that they aim directly at that threat. They can focus upon the nature of 

any resulting civil liberties concern, asking whether that concern has 

practical importance or exists primarily in the realm of the theoretical. 

(Remember the Tennessee voter who voted against Barry Goldwater because 

he heard that Goldwater wanted to abolish TV. “No, it’s TVA,” a 

reporter told him. “Well, I’m not taking any chances.”). They can suggest 

procedures designed to avoid the conflict, for example, through 

expedition of (rather than abolition of) judicial review. This kind of detail—definition, 

focus, tailoring, procedure—are grist for the lawyer’s 

mill. However dull they may sound, in practice they can avoid the 

unnecessary conflict and in that way help to protect traditional civil 

liberties interests. 

My third area shows that both the civil rights task and the institutional 

task have important international dimensions. We should expect 

to find many international cooperative efforts. Remember Justice 

Powell and the Ultra Secret. We can also learn much from experience 

abroad. After all, many foreign nations, including Britain, France and 

Japan, have had direct experience with terrorism, including bombs, nerve 

gas and clandestine organizations. Foreign nations, too, have had to develop 

security techniques consistent with their own democratic traditions. 

And we have something to learn. Of course, foreign nations work 

within different legal systems and in different cultural environments. But 

still, the very factors that have made this meeting an international 

meeting suggest that those nations face similar problems. And those 

lawyers who understand the legal and cultural environments of both 

the United States and the foreign nation will best understand the details 

of the solutions reached in other nations and will contribute the 

most here. 

Another, longer range, task is that of building effective international 

institutions. The Europeans, for example, have agreed to recognize a multi- 


17


national arrest warrant. Will they, will we, develop further formal arrangements 

in the area of international criminal law If so, we shall face many 

questions, of jurisdiction, of institutional structure, of standards, of relationship 

to national institutions, including judicial institutions. 

The current disagreement about the Rome Statute creating an international 

criminal court illustrates a few of the technical difficulties. The 

tribunal prosecutor can proceed against an individual only if the relevant 

national authorities are unwilling or unable to look into the matter; and 

an international appellate tribunal can review the prosecutor’s decision 

to do so. Are these safeguards sufficient or do they leave the prosecutor 

with too much power The tribunal has jurisdiction over “crimes against 

humanity” defined to include “torture,” which, in turn, is defined to 

include the infliction of “severe . . . mental suffering” where part of a 

“policy” involving committing “multiple” acts “against any civilian population.” 

Is this definition too broad 

These questions involve matters both of technical drafting and of 

policy. To what extent can the first of these, primarily a legal skill, help 

overcome disagreements about the second I suspect it can help. And I 

mean to suggest that a lengthy continued effort to deal effectively with 

international terrorism will raise many such questions. Lawyers who know 

the field, who can find creative answers, who have become involved, will, 

of course, contribute effectively in that effort. 

A final area where it is important to engage in constructive, detailed 

legal work concerns the compensation of victims. Obviously we want to 

avoid what happened in respect to asbestos, where vast numbers of cases 

filed in the courts, filled dockets across the nation, took twice as long as 

ordinary civil cases to resolve, often defied settlement, and too often resulted 

in too many receiving too little too late. In one instance 448 members 

of a class of 3,000 died before the class action was resolved. And some 

reports have suggested that only a surprisingly small portion of the funds 

received have gone to victims. 

The challenge is to make certain that compensation is fair and speedy. 

Here, unlike asbestos, Congress seems willing to become involved. In fact, 

in the days following the September 11th attack, Congress passed the Air 

Transportation Safety and Stabilization Act, Title IV of which addresses 

victim compensation. The legislation directs the Attorney General to appoint 

a Special Master to administer a compensation program for individuals 

who were injured or whose family members were injured in the 

terrorist attacks. Individuals who participate in this scheme waive the right 

to proceed in any civil action to recover attack-related damages—includ- 


18


ing punitive damages. One can still easily imagine a range of difficult 

legal questions. How will statutory eligibility be verified What is the appropriate 

level of compensation Should the level differ depending, for 

example, upon the income of the victim and the number of dependents 

or should it be the same for all Should the availability of alternative 

compensation be considered What about receipt of charitable donations 

How will disputes be resolved The questions are legion. These kinds 

of questions have proved extraordinarily difficult to answer in the context 

of ordinary mass tort litigation. But here there seems a will to try to 

resolve them—in the interest of building an effective compensation system. 

Can this be done Or will an idea of what would be “best” (which 

may differ depending upon one’s point of view) stand in the way of developing 

a system that might prove reasonably “good” That is a professional 

challenge. 

Indeed, the four areas I have mentioned have in common the fact 

that they all raise professional challenges. They all grow out of the 

September 11 events, they all seem relevant to our response to those 

events, and they all ask lawyers to respond with the legal skills they 

best know how to exercise: an understanding of institutions, a focus upon 

detail, and an ability to work constructively with detail both to preserve 

competing principles and to achieve agreement that otherwise 

might not exist. 

I mention those challenges to you this evening because of the unique 

circumstances that surround this conference. The international community 

has been shaken by the magnitude of the September 11th attacks, 

and New York has felt their impact the strongest. Our sense of security has 

been shaken, our freedom of movement reduced, and our faith in human 

kind compromised. Yet despite these terrible events, we have witnessed an 

outpouring of support as people from across the nation and across the 

globe have given blood, have volunteered by the thousands, sent donations 

and messages of support, donated food, and provided manual labor 

at Ground Zero. We, as citizens, are taking steps to rebuild our cities, to 

reorganize our government, and to reaffirm our values. Now, we as lawyers, 

must build institutions, open international dialogues, and create 

laws that respond to our changing needs. Our special legal and analytical 

skills provide us with a unique opportunity to contribute in a meaningful 

way—not only to overcome the events of the past but to prevent their 

repetition, not only to solve present problems, but to do so in a way that 

exemplifies and protects the democratic values that characterize our 

systems of law and which are now under attack. Those values are em- 


19


bedded in our laws’ details where they are continuously practiced as part 

of our daily lives. And that makes all the difference. Your participation in 

this conference makes clear your own commitment to those values. 

And, as I said at the outset, I am privileged to have the opportunity to 

join you. 


20

Enduring Values 

and Changing Times 

Judge Judith S. Kaye 

Hon. Judith S. Kaye, Chief Judge of the State of New York and Chief Judge 

of the New York Court of Appeals, delivered the Orison S. Marden Memorial 

Lecture, March 5, 2002, at the Association. 

hen I chose the title “Enduring Values and Changing 

Times” several months ago, I had two thoughts. 

First, the words enduring values bring to mind 

Orison Marden, one of the great leaders of the New 

York City, New York State and American Bar, whose 

very name stands for the highest and best of our Wprofession. It is surely no accident that the subject of this lecture fluctuates 

between ethics and pro bono—two bedrock values of the legal profession, 

two pillars of Orison Marden’s own life. 

Second, having absolutely no idea of what I would speak about this 

evening, I thought that title left me a fair amount of flexibility. You don’t 

want to peak too early. “Enduring Values and Changing Times” is an allpurpose, 

inexhaustible subject—sort of like “A View from the Bench.” 

Never did I dream back then that the events of September 11 would 

give my title such special significance. Never could I have imagined that 

our times, our world, would change so dramatically, so completely, so 

permanently. Never did I dream back then that our values would be so 

tested by other nations, or that in America we would see such an outpouring 

of patriotism, humanitarianism, professionalism. 


21

O R I S O N S. 

M A R D E N M E M O R I A L L E C T U R E 

SEPTEMBER 11 AND THE COURTS 

None of us, of course, will ever forget Tuesday, September 11, 2001, or 

where we were that day. I was in Albany for the second week of the September 

Session of the Court of Appeals. In fact, many of our court administrators 

were in Albany that day as well, for a two-day conference on 

the vital subject of Access to Justice—a conference that had attracted a 

few hundred legal services providers, public interest lawyers, judges, court 

personnel and others from New York and elsewhere. 

Our first thoughts after 8:46 a.m. were to touch base back home in 

Manhattan, but then very quickly we turned to critical questions concerning 

the courts. Immediately—almost instinctively—Chief Administrative 

Judge Jonathan Lippman and I decided that the New York courts, 

including the trial courts in lower Manhattan, should continue their 

operations as best they could. This was, after all, an attack on American 

values, including the rule of law, and it was important that we not capitulate 

to terrorists by closing the courts. The Access to Justice Conference 

in Albany, by the way, also went forward that day—a powerful statement 

of the participants’ commitment to equal justice under law. 

As you might imagine, it was one thing for Judge Lippman and me to 

decide that the courts should remain open, and quite another for the 

judges, court personnel, lawyers and jurors to implement that decision. 

The challenges, particularly in lower Manhattan, were incredible, starting 

with widespread personal dislocation and devastation—three of our 

own court officers missing in the rescue effort, sixty or more of our court 

family missing loved ones. No telephone service, no public transportation, 

our buildings being tested for structural soundness, a rash of bomb 

scares, the smoke and smell of Ground Zero hovering in the air. Thousands 

were feared dead at the World Trade Center. Close to 17,000 lawyers 

had their offices in the Frozen Zone, 1,400 in the World Trade Center 

alone, their records and offices destroyed or inaccessible. 

But they did it, they did it. They were absolutely magnificent in meeting 

the extraordinary challenges of those extraordinary times. This, I believe, 

has been a shining hour for the New York courts and lawyers, barely missing 

a beat in their service to the public, showing the world the high value 

we place on our system of justice. 

SEPTEMBER 11 AND THE BAR 

I read in The New York Times a week or so ago that the term “9/11” 

has become a permanent part of our vocabulary, and is being written into 

dictionaries. I am eager to see how it will be defined. Pro bono is already 


22

J U D I T H S. K A Y E 

a permanent part of our profession’s lexicon, and that term for me is 

forever defined by the shining hour of the New York Bar. 

I offer two examples—first, Bar Associations and second, volunteer 

lawyers individually, admittedly only a small part of the picture, the part 

I personally experienced. There are so many other lawyer stories to be 

told—not only within the courts and Bar Associations but also among 

legal service providers (I mention particularly the Legal Aid Society’s remarkable 

response), government attorneys, civil rights lawyers, law firm 

pro bono coordinators, paralegals, law schools. I hope that someone will 

collect these stories. Regrettably, an errant lawyer or judge is a guaranteed 

headline, our profession’s abundant good works little noticed. But that’s 

a subject for another day. 

First, the Bar Associations. As we all discovered, it was impossible to 

know on Day One what all the special needs would be. Day by day, they 

emerged. Sensibly, Bar leaders quickly came together to coordinate and 

thereby maximize the response. They convened regularly in this period, 

and divided up the tasks as they appeared—for example, the County Lawyers 

Association, displaced from its own offices on Vesey Street, undertaking 

to represent families of uniformed officers and Port Authority employees; 

the Trial Lawyers Association forming “TLC” (Trial Lawyers Care) 

to counsel claimants to the federal victims’ compensation fund; City Bar 

developing the Facilitator Program to train volunteers so they could provide 

holistic services—like the family doctor—including counseling in areas 

such as estates law, social security, immigration and housing, as well 

as establishing small business walk-in clinics to help affected street vendors, 

shoeshiners, shopkeepers, restaurateurs. 

The State Bar Association coordinated offers of assistance from Bar 

groups around the world, and also established a program for lawyers and 

clients where law offices were decimated or inaccessible. The Women’s Bar 

Association took on the task of special services to families and small businesses 

that were victims of the attack. Countless local Bar Associations pitched 

in as well, with a list of contributions that would keep us here all night. 

Emergency legal needs, as they were identified, were promptly met 

with training, resources and volunteers. Comprehensive handbooks, resource 

guides and Internet materials were produced virtually overnight by 

the Bar Associations and law firms. Probono.net September 11 Practice 

Area—an Internet portal for communicating information and needs— 

registered more than 2700 attorneys. What an astounding display of cooperation, 

communication, leadership. 

Second, lawyers themselves responded generously, many volunteer- 


23



ing for the first time. To give one illustration, the court system, in cooperation 

with the City of New York, established an expedited procedure for 

securing death certificates from the Medical Examiner so that victims’ 

families could access bank accounts, insurance proceeds and the like. A 

call went out one day for lawyer volunteers to be trained in interviewing 

victims’ families and completing the necessary submissions. Within hours, 

hundreds responded, filling the Meeting Room here, the stairway and the 

entire lobby out to the street. Fortunately, I was at the House of the Association 

that day, and was called out of a meeting with the Bar leaders to 

speak to the assembled crowd. The sight of all those terrific people—hundreds 

and hundreds of them crammed into this building, eager to do 

their part—is indelibly engraved in my mind. Owing to all the combined 

efforts, nearly 2500 orders for death certificates were issued within hours 

of filing—instead of the year or more that the procedure can take in ordinary 

circumstances. 

Day after day for weeks and months, the unprecedented response 

from volunteer lawyers continued at what became the Family Assistance 

Center on 54th Street and the Hudson River. One entire side of that blocklong 

building was labeled “Legal”—teddy bears sent by Oklahoma City 

lining the wall—and members of the Bar showed up in droves to counsel 

victims and families. Many times I visited the Center, and I was proud to 

see New York’s lawyers there, patiently and sensitively offering comfort 

and help—often themselves taking a moment or two to find a private 

corner and shed a tear. Talk of the Family Assistance Center—what a thing 

to behold! Federal, State, City, private agencies, legal service providers, 

religious counselors, and on and on, all came together as never before. 

Families there could get a meal, emergency cash, a copy of a World War II 

military record, anything they needed, in any language. Similar centers 

were established in lower Manhattan. 

What an example of patriotism—of being a part of America, defending 

America, standing up for America in a time of crisis. What an example 

of humanitarianism—the very best of humanity responding to 

the barbarous acts of the very worst of humanity. What an example of 

professionalism—lawyers licensed in a public calling responding to a cry 

for help, fulfilling their time-honored responsibility to render pro bono 

service. 

Now nearly six months have passed since September 11. Still the press 

reports fresh challenges engendered by that fateful day—new environmental 

studies; new clashes about the distribution of funds and redevelopment 

of the World Trade Center site; new security, budget and eco- 


24


nomic worries. While our concept of “normality” is forever changed, it is 

fair to say that we have returned to, or are approximating, normality. 

Despite lingering fears, we are back in the subways, the skyscrapers and 

the skies. 

And what of the New York Bar What remains of our shining hour 

PRO BONO GENERALLY 

I think of the first segment of this talk as a Primer of Pride, and the 

next as a Chronicle of Frustration. So I’ll try to keep this part short. 

I do believe, however, that it is important to fill out the canvas a bit 

on the subject of pro bono—meaning, of course, our professional responsibility 

to assure access to justice for those financially unable to afford a 

lawyer. I see this as a two-fold responsibility: both to assure adequate 

funding, public and private, for institutional providers, and to provide 

direct services to needy people. By the way, Orison Marden saw it that 

way too—he was both a founder in the 1930s of the Legal Aid Society’s 

annual associates’ fund-raising campaign, and a weekly volunteer at the 

Civil Division’s Harlem Neighborhood Office until his death in 1975. 

Let’s start with needs. In the 1980s, a State Bar Association study established 

that, owing to lack of access to counsel, less than 14 percent of 

the civil legal needs of the poor in New York were being addressed. In 

1992, the Committee to Improve the Availability of Legal Services—known 

as the Marrero Committee—recommended that pro bono service be mandated 

for every member of the Bar. The decision was made at that time to 

defer such a requirement and work instead on stimulating voluntary efforts. 

I keep that report at my fingertips. 

In 1998, the Legal Services Project—a blue-ribbon panel of Bar and 

community leaders chaired by this Association’s former president, Michael 

Cooper—reported that the poor in New York encounter millions of legal 

problems each year without counsel, and the problems most often involve 

a necessity of life. An astounding ninety percent of tenants do not 

have counsel in summary eviction proceedings, often the last stop before 

homelessness. According to a study conducted by the New York 

University “Capstone” team in the Spring of 2001, due to limited resources 

the Legal Aid Society turns away six applicants for every one it 

accepts. 

Several studies have confirmed that more than half the members of 

the New York Bar do no pro bono work at all. And in 2001, the American 

Lawyer’s national survey of law firms reported “record increases in revenue 

accompanied by a per capita decline in pro bono commitment.” 


25



Suffice it to say that the subject has been studied to death, and that 

the unanimous, unassailable conclusions are that the need for pro bono 

is both huge and unmet. 

Do lawyers make a difference That’s been studied too. The Pro Bono 

Project Against Homelessness provided volunteer lawyers to a randomly 

selected group of low-income tenants in Manhattan Housing Court. And 

guess what The represented tenants had significantly better outcomes 

than the unrepresented tenants—far fewer eviction judgments against them 

and far more stipulations requiring rent abatements or repairs—which 

the researchers attributed to the presence of counsel. Another unsurprising 

conclusion: having a lawyer matters. 

My final conclusion on the enormity of the unmet need is again an 

obvious one. However dismal the statistics were on September 11, they are 

infinitely worse today. Since September 11, 2001, tens of thousands of 

jobs have been lost in New York City, many of them by low-income workers; 

money is tight; and interim financial measures like unemployment 

benefits, emergency grants and Disaster Relief Medicaid are drawing to an 

end, as the City welfare rolls grow. 

I would not want you to think that, as a court system, we have over 

the years simply conducted studies and surveys, and wrung our hands in 

despair. Quite the contrary. 

Noting the declines in public funding for legal service providers, we 

asked the Legal Services Project—the Cooper Commission—to identify new, 

permanent funding streams. And they did indeed come up with an excellent 

suggestion, calling on the Legislature to allow the transfer of funds 

from the Abandoned Property Fund to an Access to Justice Fund administered 

by the IOLA Trustees. As we all know, that was not done. 

By the same token, the court system has labored mightily—and vainly— 

for an increase in 18-b rates, a woeful $40 an hour for in-court time, $25 

an hour for out-of-court time. Instead of the desperately needed increases, 

we have watched helplessly as the assigned panels dwindle to a point of 

catastrophe. A lawyer recently told me of a morning he spent in Family 

Court with a Columbia Journalism student, who observed that all of the 

cases at intake were in fact assigned. So where’s the problem “Did you 

notice,” the lawyer asked, “that all of the cases were assigned to the same 

attorney” I have myself seen judges send emissaries, floor by floor, through 

the courthouse corridors to find attorneys to represent parents in Family 

Court, and then adjourn cases before them because the quest was fruitless. 

Is this America Is this how we honor our promise of a right to counsel 

Plainly this situation cannot continue. The rates must be raised now. 


26


Then too, consider the rippling effects of the 18-b disaster. The demoralized 

18-b attorneys now—once again—threaten to take no new cases, 

with unimaginable impact on needy litigants and already overcrowded 

court dockets. Lawsuits around the State challenge both payments above 

statutory rates and administrative efforts to review awards above statutory 

rates. A federal District Court, calling our appointed counsel system 

“largely a sham,” has found that current 18-b rates were constitutionally 

harming indigent defendants, and ordered them increased for certain cases. 

I repeat—this cannot continue. City and State leaders simply must think 

outside the box and resolve this issue. They can no longer stand by as 

people are hurt and the court system stalls. 

Nor have our efforts been limited to advocating adequate funding 

for institutional providers, vital as that is. We have also taken significant 

steps to stimulate direct pro bono activity, urging attorneys both to provide 

20 hours or more of legal services a year to the poor and to support 

organizations that provide such services. And we most recently adopted a 

policy allowing continuing legal education credit for pro bono work. As I 

mentioned earlier, fully one-half of New York’s attorneys do no pro bono 

work at all. 

Perhaps the most promising step the court system has taken in this 

regard—and I’m ending my Chronicle of Frustration right here—is the 

creation of the post of Deputy Chief Administrative Judge for Justice Initiatives, 

a position at the highest level of court administration for a skilled, 

dedicated individual to focus like a laser beam on access to justice issues. 

And indeed, Deputy Chief Administrative Judge Juanita Bing Newton has 

more than fulfilled the promise of that idea. 

Judge Newton has spearheaded so many initiatives—like clinics and 

Resource Centers for the increasing ranks of self-represented litigants; satellite 

offices, night courts, mobile self-help offices to bring the courts closer 

to working litigants; and expanded alternative dispute resolution options. 

Under her aegis, we will soon be opening our Access to Justice Center, 

bringing together the best thinking from all disciplines on the subject, 

sharing experiences and stimulating innovations. 

I am thrilled tonight to announce the appointment of Dianne E. 

Dixon, as Executive Director of the Access to Justice Center. A graduate of 

the New York University Law School, Ms. Dixon has twenty years’ experience 

in government, academia and legal services, most recently with the 

Attorney General’s excellent office. What a wonderful coincidence that 

she began her legal career at the Harlem Neighborhood Office, where Orison 

Marden had once been a weekly regular! Through the combined efforts of 


27



the Access to Justice Center and Judge Newton’s office, we will sponsor 

four Convocations on Pro Bono Service, the first this June in Manhattan. 

We hope to bring the issue of pro bono services from the margins to the 

very center of society’s consciousness, and I am confident that we will 

succeed in this. 

THE NEXT CHAPTER 

I closed my Chronicle of Frustration with the court system’s new access 

to justice initiatives, and I open this final segment of my talk with 

the words of City Bar President Evan Davis. He asked, can our profession 

perhaps gain something positive and lasting from the events of September 

11 And he answered: 

“Adversity almost always has a counterpoint. From scandal comes 

reform; from disease comes medical advance. . . . The tragedy 

with which we are coping has revealed the Bar’s deepest character, 

and that character is admirable.” 

I agree with Evan that in the rubble and ashes, the heartbreak and 

tragedy, of September 11, there may well be important lessons for us in 

stimulating pro bono. I am encouraged in this insight by the fact that 

others just now have it too, and especially welcome a group of Fordham 

Law School students here this evening who have this as their project. I 

think that we’re all on to something important! 

Obviously, much of the work begun for victims of the World Trade 

Center disaster necessarily continues to this day, which itself helps to 

keep the shining hour alive. But in the September 11 experience, we 

hopefully can also find factors that evoked the Bar’s phenomenal response, 

and we can build on them. Of course, I recognize that the attack on 

America was the transcendent mobilizing force—and would never hope 

for repetition of anything like that. But other factors can, and should, be 

replicated. 

One thing we know for certain is that legal services for the needy are 

absolutely essential to the recovery effort. More and more New Yorkers 

without access to counsel will otherwise needlessly become destitute and 

homeless. It cannot be that, as a profession, we would offer our services 

to keep a September 11 victim from homelessness or deportation, and 

deny that same assistance to a needy person who was not a 9/11 victim, 

when the impact on the person, and on society, is the very same. 

What would top anyone’s list, looking for the lessons of September 


28


11, is the level of coordination, communication and cooperation within 

the legal community—united as never before. That joint effort maximized 

the Bar’s ability to assure that needs were accurately identified and efficiently 

met—lawyers matched with clients—with sensible allocation of 

available resources and little duplication of effort. 

Second, twenty-first century technology was intrinsic to that effort— 

like probono.net, and Bar Association Website links for lawyers and clients 

to seek out opportunities and information. In short, clients knew 

where to find help and volunteers knew where to find clients, training 

and excellent backup assistance. 

Third, the facilitator, gatekeeper, family doctor model unquestionably 

was a big plus—lawyers able to connect with clients personally, assess 

the range of needs and serve as a gatekeeper to other resources. The sort of 

“one-stop shopping” that was available at the Family Assistance Center 

and other emergency centers—one telephone call to a hotline, one visit 

to a Website, one trip to an office—is clearly the best model for the client. 

September 11 proved that even beyond legal services, bringing together 

all necessary resources for a needy population is plainly the most effective 

way to reduce adversarialism and solve problems. It also most engaged 

the volunteer lawyers. 

Fourth, engaging as it may be for a lawyer to offer clients a full range 

of legal services—the medical equivalent of bunions to brain surgery— 

volunteers inexperienced in general legal practice are understandably fearful 

of harming rather than helping people in need. Wisely, the volunteers 

were provided with comprehensive training as well as written materials 

about legal issues likely to arise, detailed how-to’s, and contact information 

for a host of helpful people, agencies and other resources. Perhaps 

most important, back-up mentors—most often, and most helpfully, experts 

from the legal services community—were available to them. 

I know from personal experience how terrifying it can be to deal with 

clients and subjects outside your usual field of practice. I imagine that 

even Orison Marden had some trepidation—especially at the start—when 

he left his White & Case offices every week for The Legal Aid Society’s 

Neighborhood Office to face a new clientele and new fields of law. When 

I was a commercial litigation partner at a midtown law firm, I joined the 

assigned counsel panel in the Eastern District and was appointed to represent 

a defendant in a criminal case, and I am forever grateful to Tom 

Concannon of Legal Aid’s Federal Defender Unit for showing me the ropes. 

Ultimately, I managed to devise a winning argument, but it could be used 

only once: “Your Honor, if this case was really serious, they never would 


29



have assigned it to me.” I should add that, several years later, the client 

called, asking me to represent him again—the ultimate compliment. When 

I explained that I had become a Judge, he said, “That’s OK—this won’t 

take much of your time.” 

One-stop shopping supported by training, and readily accessible 

materials, resources and mentors: that’s a good model for the future. I 

agree with Evan Davis that the Bar’s deepest character is admirable—we 

want to help people in need. The September 11 pro bono effort succeeded 

so well because the Bar leaders made it both simple and meaningful for 

the volunteers to help people in need. The September 11 effort countered 

all of the top reasons lawyers give for avoiding pro bono work—yes, we’ve 

surveyed those too: I don’t have the time; I don’t have the expertise; I 

don’t have the office support; I’m not interested in the type of projects 

available; I can’t afford it. Well, now we all know you do, you are and 

you can. 

That brings me to a couple of final thoughts about the success of the 

9/11 pro bono initiative. I have spoken about the importance of satisfying 

the unmet legal needs of clients, but lawyer needs are also satisfied 

through pro bono work. 

A couple of years ago, a corporate associate took a five-month paid 

leave sponsored by his large Manhattan law firm, and joined the staff of 

a legal services organization. Describing his experience in a recent article, 

he said that on “a personal level, it was one of the most gratifying experiences 

of my life. And from a professional point of view, the five months 

I spent . . . representing the city’s poor and elderly did more for me as a 

corporate lawyer than I ever expected.” Noting that corporate lawyering 

calls for “a thorough understanding of the issues, quick but precise thinking, 

and a pro-active, win-win mentality,” he tells us that his assignment 

was “a perfect place to master these techniques, all while helping those 

who need it most.” That place—believe it or not—was New York City Housing 

Court. What’s more, and I quote, “the practice of landlord-tenant law is 

perfectly suited to corporate training because it’s about six parts negotiation, 

three parts creativity and one part law.” 

Finally, I am well aware of the pervasive discontent within our ranks, 

especially among new lawyers—complaints about the loss of ideals that 

brought them to the law, limited hands-on experience, no client contact, 

little opportunity to do something meaningful. The September 11 pro 

bono model is good for needy clients, and the need is more compelling 

than ever. It’s also good for lawyers—an opportunity to help people while 

polishing essential skills. And it lifts up our profession, returning us to 


30


our roots as a public calling in a day when too many among us feel overtaken 

by the race to the bottom line. 

I conclude with a tip of the hat to two Orison Mardens. To the first 

Orison Marden—a doctor, lawyer and prolific author on the subject of 

how to achieve success—my thanks for many inspirational lines, like this 

one: “Most of our obstacles would melt away if, instead of cowering before 

them, we should make up our minds to walk boldly through them.” 

And to the second Orison Marden, his highly successful lawyer-son, who 

clearly practiced as his father preached, my thanks for your example and, 

by this lecture, for taking me down this path of reflection on a timeless 

professional value in a new world. I now propose that all of us together 

walk boldly through the obstacles and keep the luster on that shining 

hour of the New York Bar. 


31

Letter to Immigration and 

Naturalization Service, re: 

INS No. 2171-01 Custody 

Procedures, 66 Fed. Reg. 

48334 (September 20, 2001) 

November 16, 2001 

The Committee on 

Immigration and Nationality Law 

Richard A. Sloan 

Director, Policy Directives and Instructions Branch 

Immigration and Naturalization Service 

425 I Street 

Room 4034 

Washington DC 20536 

Re: 

INS No. 2171-01 Custody Procedures 

66 Fed. Reg. 48334 (September 20, 2001) 

Dear Mr. Sloan: 

The Committee on Immigration and Nationality Law of the Association 

of the Bar of the City of New York (“the Association”) has reviewed 


32

I M M I G R A T I O N A N D N A T I O N A L I T Y L A W 

the Immigration and Naturalization Service’s (“INS”) interim rule amending 

the period of time in which the INS must make a determination following 

an arrest without a warrant. The Association strongly urges that the 

interim rule not be adopted as a final rule. The standards of the interim 

rule are inconsistent with both the Immigration and Nationality Act (“INA”) 

and the recently enacted “Uniting and Strengthening America by Providing 

Appropriate Tools Required to Intercept and Obstruct Terrorism (USA 

PATRIOT)” Act of 2001. Furthermore, it undermines the essential constitutional 

balance that is struck by these statutory provisions. Finally, it is 

counterproductive as a matter of policy. 1 

1. The Interim Rule Violates the INA 

The interim rule violates the INA by bypassing the statutory protections 

for arrests without warrants. Under the INA’s statutory scheme, an 

arrest is ordinarily made following a warrant. INA §236(a). Once the arrest 

takes place, the statutory provisions for detention and release on bond 

are activated. These provisions allow for release on bond except where the 

statute specifically provides for mandatory detention. INA §236. The statute 

recognizes, however, that there will be some situations in which it is 

not feasible to issue a warrant prior to an arrest. In situations where there 

is reason to believe that the individual “is likely to escape before a warrant 

can be obtained for his arrest” the statute permits a warrantless arrest. 

INA §287 (a)(2). As a safeguard against improper arrests, however, 

the statute mandates that the person arrested “be taken without unnecessary 

delay before an officer of the Service having authority to examine 

aliens as to their right to enter or remain in the United States.” Under 

this statutory scheme, the review by an officer serves the same function as 

the issuance of a warrant: it serves to assure that the original arrest is 

based on adequate grounds. Longstanding regulations implement this 

statutory design by requiring that the warrantless arrest be scrutinized by 

an INS officer within 24 hours. 

The interim rule thwarts the statutory design by eliminating timely 

independent scrutiny of the warrantless arrest. Instead of reviewing the 

grounds of the arrest, which can be done immediately after the arrest, the 

interim rule provides for fact investigation and preventive detention while 

1. The Association has been aided by the comprehensive comments prepared by the New 

York University Review of Law and Social Change and the New York University School of 

Law Immigrant Rights Clinic. Portions of those comments have been incorporated into these 

comments. We respectfully refer the agency to those comments for a more comprehensive 

discussion of the issues raised in these comments. 


33

L E T T E R T O I N S R E: C U S T O D Y P R O C E D U R E S 

the INS determines whether and how to charge an individual with a violation 

of the immigration laws. Such after-the-fact investigation is surely 

appropriate during the pendency of proceedings and could properly lead 

to an amendment of any charges. But it cannot possibly provide the basis 

for the original arrest—which must be supported by probable cause at the 

time of the arrest. 

Nothing in the USA PATRIOT Act supports this delay in promptly 

reviewing the basis for a warrantless arrest. The USA PATRIOT Act leaves 

in place the requirement under INA § 287 that the basis for a warrantless 

arrest be scrutinized without unreasonable delay, and leaves in place the 

provisions for determining whether a person arrested for immigration 

violations is eligible for bond. The only relevant change made by the USA 

PATRIOT Act is that it authorizes a seven day delay in bringing proceedings 

in cases where the individual has been certified as a suspected terrorist. 

These provisions provide absolutely no authorization for rules that curb 

the rights of persons arrested by the INS who have not been certified as 

suspected terrorists. These persons retain the same right to have the basis 

of their warrantless arrest reviewed promptly. Furthermore, the USA PA- 

TRIOT Act shows that even where an individual is certified as a suspected 

terrorist, Congress preserved the basic right to have the charges filed within 

seven days. Plainly, Congress could not have intended to authorize an 

unlimited delay in checking the basis of a warrantless arrest, while providing 

a seven day limit in cases of persons who had been certified as 

suspected terrorists. 

Delays in reviewing the original arrest can only be supported if there 

are specific practical difficulties in obtaining review of the original decision 

to make a warrantless arrest that are sufficient to outweigh the constitutional 

rights of the individual who has been subjected to a warrantless 

arrest. The interim rule, however, is not tailored to any specific need 

to postpone evaluation of the arrest in particular cases. Instead, the commentary 

in support of the rule points to additional information that the INS 

might obtain regarding the individual arrested. Such additional information 

cannot serve as the basis for the original arrest and is therefore irrelevant 

to the requirement for a timely evaluation of the validity of the arrest. 

2. The Interim Rule Violates Constitutional Limitations on 

Warrantless Arrests 

In addition to violating the INA, the interim rule violates minimal 

constitutional safeguards for warrantless arrests. The Fourth Amendment’s 

protections against unreasonable searches and seizures applies to arrests 


34


made by the INS. See United States v. Brignoni Ponce, 422 U.S. 873 (1975); 

Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Under these decisions, 

arrests by the INS must be supported by probable cause. Although 

the remedy of the exclusionary rule may be limited in the case of persons 

who lack proper immigration status, See INS v. Lopez-Mendoza, 413 U.S. 

266 (1973), the basic requirement of probable cause for the arrest is fully 

applicable and enforceable. 2 

Probable cause for an arrest is ordinarily evaluated at the time of the 

issuance of the warrant. In the case of a warrantless arrest, the Fourth 

Amendment requires that the on-the-spot judgment of the arresting officer 

be tested promptly following the arrest by a magistrate or other officer 

who will determine whether probable cause existed at the time of the 

arrest. See Gerstein v. Pugh, 420 U.S. 103, 124 (1975). In the context of 

arrests by the INS, courts have held that prompt review by an INS officer 

serves the function of a review by a magistrate. 3 Given the restraint on 

liberty that follows a warrantless arrest, this is the very least that the 

Fourth Amendment might be read to require. The proposed rule, however, 

fails to meet even this minimal standard. Instead it allows for prolonged 

detention simply because the arrest coincides with a time of general 

emergency. 

Furthermore, the rule improperly reads the case law as allowing for 

48 hour detention regardless of special circumstances. The 48 hour rule in 

criminal cases, however, stands only as a guidepost. In County of Riverside 

v. McLaughlin, the Supreme Court carefully explained that it did not hold 

“that the probable cause determination in a particular case passes consti- 

2. The absence of the exclusionary rule in no way reduces the standards that the agency must 

follow. It simply moves the remedy for failure to follow constitutional requirements to other 

realms. See, e.g., Lopez-Mendoza, supra (discussing declaratory judgment remedies). 

3. Min-Shey Hung v. United States, 617 F.2d 201, 201 (10th Cir. 1980) (finding examination 

by authorized INS officer “basically the same as a criminal proceeding before a magistrate on 

probable cause” and “sufficient to meet the constitutional safeguards and to commence the 

deportation proceedings.”); Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir. 1982) (Posner, J.) 

(“Special inquiry officers have judicial authority, and therefore correspond to the committing 

magistrate in a criminal proceeding.”); Yui Fong Cheung v. INS, 418 F.2d 460, 463 (D.C. Cir. 

1969) (“[Section] 287(a)(2) of the [INA] requires that the alien be taken for examination before 

an officer qualified to conduct examinations. His function is not to conduct the deportation 

hearing, but to ascertain whether there is probable cause for detention pending the issuance 

of charges (in the show cause order) and conduct of the hearing.”); see also, Cervantes v. 

Whitfield, 776 F.2d 556, 560 (5th Cir. 1985) (INS stipulating that pursuant to 8 C.F.R. § 

287.3(d), an immigration officer “determine[s] whether there is probable cause that a person 

is deportable or excludable”). 


35


tutional muster simply because it is provided within 48 hours.” 500 U.S. 

44, 56 (1991). Procedures may still be deemed unreasonably delayed if, for 

example, there are “delays for the purposes of gathering additional evidence 

to justify the arrest, a delay motivated by ill will against the arrested 

individual, or delay for delay’s sake.” Id. 

The interim rule, however, makes no such distinctions. Within the 

first 48 hours after an arrest, the regulation authorizes delay for evidencegathering, 

delay out of personal animus towards the detainee, and delay 

for delay’s sake. Moreover, the Supreme Court further specified that only 

those delays attributable to “practical realities” are reasonable, and thus 

constitutional. Examples of practical realities cited by the McLaughlin Court 

include delays caused by transportation of arrested persons, difficulty 

handling late-night bookings, legitimate problems obtaining an arresting 

officer who may be busy “processing other suspects or securing the 

premises of arrest,” paperwork and logistical problems, and “other everyday 

problems of processing suspects.” Id. at 57. 

The purposes of the interim rule have little to do with the legitimate 

grounds for delay envisioned by the McLauglin Court. The INS does not 

contend with magistrate availability. Nor will it commonly be occupied 

with “securing the premises of an arrest” since grounds for deportation 

rarely have crime scenes where evidence must be secured. Given the nature 

of INA violations, it seems equally unlikely that the INS handles many 

“late-night bookings.” Instead the proposed rule seeks to justify delay 

based on information gathering, a purpose that has no relevance to evaluating 

the justification for the initial arrest. 

In short, nothing in the explanatory materials accompanying the 

proposed rule provides any basis for expanding the time for review of 

warrantless arrest beyond the 24 hour standard that has long been incorporated 

in INS regulations. 

3. Standard for Invoking “Emergency or Other 

Extraordinary Circumstances” 

While the Association opposes an extension of the detention period 

from 24 to 48 hours, the interim rule stipulates that an exception to the 

48-hour detention period will exist “in the event of emergency or other 

extraordinary circumstances.” In the event such circumstances arise, the 

INS is free to hold a person without any specific limit, other than “a 

reasonable period of time.” The language that triggers this broad exception 

in the interim rule is too vague. 

What constitutes an “emergency” Would it only apply to emergen- 


36


cies related to national security or other emergencies such as government 

shutdowns or lack of INS personnel at any given point of time The interim 

rule is also silent about who would have authority to declare such 

an emergency. 

The other proposed language, “extraordinary circumstances,” is even 

more vague. Conceivably, any INS arrest and detention after September 

11, 2001, could be considered in “extraordinary circumstances” since the 

terrorist attack and subsequent investigation is unprecedented in U.S. history. 

The interim rule’s language is ambiguous and would lead to unnecessary 

confusion and, possibly, abuses of detention power. 

Furthermore, the interim rule states that in the event of emergency 

or other extraordinary circumstances, the INS may detain a person without 

charge or custody determination for a “reasonable period of time.” 

The language defining the time limit for the exception in the interim rule 

is unacceptably open-ended. In its current form the rule could result in a 

life sentence for a person based on no more than a mere suspicion of 

some immigration violation. 

Even though the USA PATRIOT Act mandates that an alien who is 

certified as a terrorist be charged within seven days, the interim rule would 

theoretically permit the INS to never charge and detain indefinitely a 

noncitizen who has not been certified as a suspected terrorist. 

4. The Interim Rule Promotes Lawless Arrests and 

Undermines Trust in Law Enforcement 

Careful guidelines and review procedures for warrantless arrests serve 

as a check on errant officers who make improper arrests. Absent such 

procedures, the immediate judgment of the arresting officer is left unreviewed. 

This can easily lead to illegal arrests, including arrests that are based on 

nothing more than racial profiling or the animus of the officer towards 

the person arrested. It may lead to the arrest of citizens who are accused 

on being noncitizens, or to legal residents who are not subject to removal. 

Prompt review of the arrest serves to curb such illegal incursions on liberty 

at the earliest possible time. 

In addition to protecting the liberty of those who would otherwise 

be held illegally, timely review promotes respect and trust of law enforcement. 

Nothing is more erosive of trust in law enforcement than an inability 

to know that there is some basis for an arrest. Without knowledge 

that there are procedures in place to prevent illegal arrests, communities 

can easily conclude that their members are being arrested on no basis 

whatsoever. At a time when law enforcement needs the help of all in 


37


tracking down terrorists and preventing more terrorists attacks, law enforcement 

is ill-served by leaving communities fearful of unbridled powers 

by arresting officers. 

Thus, irrespective of the fact that the proposed rule exceeds the agency’s 

statutory and constitutional authority, it is simply a bad idea. Warrantless 

arrests, if properly conducted, can and should be subject to a prompt 

evaluation. The time-honored 24-hour rule meets this standard and should 

be retained. 

Sincerely, 

Cyrus D. Mehta 


38




Cyrus D. Mehta, Chair 

Raluca V. Oncioiu, Secretary 

Cigdem A. Acar 

Elisabeth Ames 

Frances C. Berger 

Michael Bochenek 

Jan H. Brown 

Joanna Miller Bukszpan 

Sarah M. Burr 

Louise S. Cavanaugh 

Lindsay Anne Curcio 

Julie E. Dinnerstein 

Maggy T. Duteau 

Pamela Goldberg 

Maurice H. Goldman 

David Grunblatt 

Steven D. Heller 

Susan B. Henner 

Janet S. Horn 

Yumi Y. Karim 

Ronald Katiraei 

Julie Krasnogor 

Wendi S. Lazar 

Frank Karol Lipiner 

Suzette Brooks Masters 

Thomas J. Mills 

Nancy Morawetz* 

Sandra P. Nichols 

Jennifer Oltarsh 

Sheldon Ansel Philp 

Jeffrey Pitts 

Susan Douglas Taylor 

Veronica T. Thronson 

Evelyn T. Tucker 

Gretchen Van Deusen 

Lauris Wren 

* Primary author of letter. 


39

Inter Arma Silent Leges: 

In Times of Armed Conflict, 

Should the Laws be Silent 

A Report on The President’s 

Military Order of November 13, 

2001, Regarding “Detention, 

Treatment, and Trial of Certain 

Non-Citizens in the War 

Against Terrorism” 

The Committee on Military Affairs and Justice 1 

INTRODUCTION 

On November 13, 2001, President Bush issued a “Military Order” (the 

“Order”) regarding “Detention, Treatment, and Trial of Certain Non-Citizens 

in the War Against Terrorism.” 2 The Order would apply to all non-citizens 

determined by the President (1) to be members of the international orga- 

1. The Committee on Military Affairs and Justice was established by the Association of the Bar 

of the City of New York in 1946. It is engaged in study and comment on the military justice 

system and other legal aspects of military affairs, including the use and regulation of the armed 

forces. 

2. The Order is reproduced in Appendix A. 


40

M I L I T A R Y A F F A I R S A N D J U S T I C E 

nization known as al Qaeda 3 ; or (2) to have engaged in, aided or abetted 

or conspired to commit, acts of international terrorism or acts in preparation 

therefor that have caused, threaten to cause or have as their aim to 

cause injury or adverse affects on the United States, its citizens, national 

security, foreign policy or economy; or (3) to have intentionally harbored 

such persons. 4 Such individuals are to be “detained at an appropriate 

location designated by the Secretary of Defense outside or within the United 

States.” 5 There is no time period set forth with respect to such detention; 

nor is there any sunset provision, for that matter, for the Order itself. 

The Order authorizes the creation of military commissions to try such 

persons, when and if they are to be subject to prosecution. 6 Further, such 

individuals, whether detained or tried under the Order, are not permitted 

under its terms to seek “any remedy” or “maintain any proceeding” in 

any U.S. federal or state court, any foreign court or any international 

tribunal. 7 Presumably, this very broad prohibition on any proceeding or 

remedy is an attempt, when read with the detention provisions of the 

Order, to deny the detainees the privilege of the writ of habeas corpus 

and thereby prolong their detention as a matter of public safety when 

considered necessary, as determined by the President. Further still, although 

military commissions bear certain similarities to courts martial under the 

Uniform Code of Military Justice 8 (including, for example, trial by appointed 

judges—rather than a jury—for both fact and law), the similarity 

is misleading. Courts martial follow procedural rules closely parallel to 

those of the federal criminal courts, while the commissions to be established 

under the Order are very different and may function without regard 

to “principles of law and the rules of evidence generally recognized in the trial of 

criminal cases.” 9 Further, they are not subject even to the procedural rules 

governing courts martial, which include the right of appeal to a higher 

court and, ultimately, to the Supreme Court of the United States. 

The “privilege of habeas corpus” is a fundamental Constitutional 

3. The organization known as al Qaeda is widely believed to be the propagator of many 

terrorist acts directed toward the United States, including the horrific ones of September 11, 

2001 in New York City and Washington, D.C. 

4. Military Order, at §2(a). 


6. Military Order, at §7(b)(2). 


8. 10 U.S.C. §§801 – 946 (hereinafter, the “UCMJ”). 

9. Military Order, at §1(f). 


41

I N T E R A R M A S I L E N T L E G E S 

right. The Order’s literal terms suspend it by preventing subject persons 

from pursuing any judicial remedy in any court whatsoever. When combined 

with the provisions for unlimited detention (including the recent 

rule-making announced by the Attorney General providing for virtually 

unlimited detention of certain aliens before INS courts), it seems plain 

that this is a use to which the Order may be put, despite only recent 

public statements by the Administration to the contrary. 10 If so, such use 

would be an extreme measure, not used since the time of the Civil War 

rebellion. Moreover, suspension of the privilege of habeas corpus is permitted 

only in the two crisis circumstances of rebellion or invasion. Even 

then, the power to suspend habeas corpus is vested by the Constitution 

only in the Congress and not in the President. 11 

In both the area of the President’s authority to create military commissions 

for the trial of the persons subject to the Order and his authority 

to detain persons without charge and suspend habeas corpus, the issuance 

of the Order raises serious questions of both constitutional law and 

statutory interpretation, in addition to important international and domestic 

policy considerations. 

This report considers, therefore, the following issues: (1) whether, if 

the Order were employed for detention or trial of alleged al Qaeda members 

or supporters, in the U.S. or abroad, it would be found to be constitutional; 

(2) if so, whether it complies with statutory requirements; (3) 

whether its use would be effective as a matter of policy and, (4) if not, 

what alternatives exist. 

THE CONTEXT OF THE ORDER 

The Order was issued two months after the September 11, 2001 terrorist 

attacks against the World Trade Center and the Pentagon (“9/11 attacks”) 

by 19 foreign nationals believed by the U.S. Government to have 

been associated with the al Qaeda organization based primarily in Afghanistan. 

12 Al Qaeda has been accused of providing the inspiration, train- 

10. As will be explained, events are fast moving and in the course of preparing this Report, it 

appears as if the Administration may have changed or may be changing its position with 

respect to this issue. 

11. U.S. Constitution, Article 1, Section 9, Clause 2. 

12. The President has said that al Qaeda operates in no less than 60 nations, including the 

United States, but because it is believed that Osama bin-Laden, its head, and his chief lieutenants 

have been located in Afghanistan, along with the organization’s major camps, it is that 

country which is the organization’s base. On September 20, 2001, President Bush said to 


42


ing, financing, and control of the 9/11 attacks, as well as assaults on two 

U.S. embassies in Africa and on the U.S.S. Cole in Yemeni waters. 

In response to the 9/11 attacks, Congress on September 18 authorized 

military action 13 but did not declare war. The United States’ decision 

to use force was supported generally by resolutions of the United Nations 

Security Council 14 and specifically by the North Atlantic Treaty Organization, 

as well as by many national governments. On September 21, the 

President declared that a National Emergency had been in existence since 

September 11. 15 After the Islamic fundamentalist Taliban “government” of 

Afghanistan refused to surrender the al Qaeda leaders, U.S. and U.K. armed 

forces launched a military campaign against Taliban forces in Afghanistan. 

Almost simultaneously with issuance of the Military Order on November 

13, Afghan units opposing the Taliban and assisted by U.S. air 

support expelled the Taliban from the country’s major cities, including its 

capital Kabul. Although the course of the conflict remains uncertain due 

to its ongoing nature, it is, as this is written, within the realm of possibility 

that some al Qaeda leaders (as opposed to soldiers or leaders from the 

Congress: “This group and its leader—a person named Osama bin Laden—are linked to many 

other organizations in different countries, including the Egyptian Islamic Jihad and the Islamic 

Movement of Uzbekistan. There are thousands of these terrorists in more than 60 countries. 

They are recruited from their own nations and neighborhoods and brought to camps in places 

like Afghanistan, where they are trained in the tactics of terror. They are sent back to their 

homes or sent to hide in countries around the world to plot evil and destruction. The leadership of 

al Qaeda has great influence in Afghanistan and supports the Taliban regime in controlling 

most of that country. In Afghanistan, we see al Qaeda’s vision for the world.” Quoted on 

White House Web Site, subsection America Responds,visited November 24, 2001. 

13. S.J.Res.23, September 18, 2001 (Public Law 107-40). 

14. United Nations Security Council Resolutions 1368 (September 12, 2001) and 1373 

(September 28, 2001). 

15. In a proclamation of that date, the President declared that “by virtue of the authority vested 

in me as President by the Constitution and the laws of the United States, I hereby declare that the 

national emergency has existed since September 11, 2001, and pursuant to the National Emergencies 

Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes: sections 123, 123a, 

527, 2201(c) 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 

367 of title 14, United States Code.” The President reported this declaration to Congress in a 

letter dated September 24, 2001: “Pursuant to section 204(b) of the International Emergency 

Economic Powers Act, 50 U.S.C. 1703(b) (IEEPA), and section 301 of the National Emergencies 

Act, 50 U.S.C. 1631, I hereby report that I have exercised my statutory authority to 

declare a national emergency in response to the unusual and extraordinary threat posed to the 

national security, foreign policy, and economy of the United States by grave acts of terrorism 

and threats of terrorism committed by foreign terrorists, including the September 11, 2001, 

terrorist attacks at the World Trade Center, New York, at the Pentagon, and in Pennsylvania.” 


43


Taliban’s armed forces) may be captured and come within the control of 

U.S. armed forces, at which time it would have to be determined when, 

where and how they might be tried. 

These acts occurred against the domestic backdrop of the discovery 

of a number of intentionally-inflicted cases of anthrax infection in Florida, 

Washington, D.C., New York City and Connecticut. Some anthrax-tainted 

letters were discovered in the mail, including ones delivered to government 

officials. As of this writing there have been 5 deaths from 18 confirmed 

cases of anthrax infection. 16 No evidence has been disclosed as of 

now to indicate that these incidents are related in any way to the 9/11 

attacks or even to al Qaeda, but their occurrence—and their undiscovered 

source—nonetheless informs the public debate about terrorist activities at 

this time. 

Moreover, a large number of foreign nationals have been detained 

within the U.S.—according to Justice Department officials exceeding 1,000 

in number, though the actual number remains undisclosed. Many of them 

are still in custody. It appears that some if not all of these detainees may 

be transferred from the control and custody of the Department of Justice 

(i.e., Immigration and Naturalization Service) to the control and custody 

of the Department of Defense, as such transfer is directed by the Order. 

It should be noted that events with respect to the Order—including 

its interpretation and possible application—are fast moving and may be 

evolving even as this Report is being prepared. This Committee, in fact, 

had the opportunity to interact with various members of the Executive 

Branch instrumental in the creation, drafting and future interpretation 

and application of the Order, and, as a result, obtained information and 

insights from such individuals, apparently as the policies were being formulated 

and developed. 17 Because such policies and interpretations appear 

to have been more deeply developed and/or changed as this Report 

was being prepared, the Committee has not had the benefit of a fixed 

and fully determined legal scheme to analyze; in fact, several of the persons 

interviewed cautioned the Committee members that the procedural 

16. CNN website, http://www.cnn.com/2001/HEALTH/conditions/11/24/connecticut.anthrax/ 

index.html, visited November 24, 2001. 

17. The circumstance was the annual meeting of the Committee’s counterpart of the American 

Bar Association—the Standing Committee on Law and National Security—held in Washington, 

D.C. on November 29 and 30, 2001. Persons with whom we spoke included the White 

House Counsel, the General Counsel of the Department of Defense, the Legal Adviser to the 

National Security Council, Counsel to the Chairman of the Joint Chiefs of Staff and others in 

similar capacities. (Hereinafter, references to this event will be to “ABA Meeting”). 


44


regulations which are now being prepared and will soon be issued, will 

not only elucidate the President’s true “intent” with respect to the Order, 

but that such intent may not have been apparent from the text of the 

Order. In view of the importance of the matter, the Committee has opted 

to work primarily from the text of the Order and the powers asserted by 

the President therein, giving consideration to the discussions and interviews 

referred to and the material published in the press by members of 

the Administration, but with the awareness that such views are not only 

not binding on the President but could again be revised at any time. 

Indeed, if the powers asserted by the President in the Order were upheld, 

this President or a future President could use the Order as precedent to 

exercise those powers in a different context and without the gloss now 

presented by his representatives. 

THE PRESIDENT’S AUTHORITY TO ORDER TRIAL BY MILITARY 

COMMISSION AND TO ESTABLISH AD HOC RULES FOR THEIR USE 

Authority Cited by the Order 

The Order states that it is issued under three sources of authority: 

1. The President’s authority as Commander-in-Chief of the Armed 

Forces; 18 

2. The Authorization for Use of Military Force Joint Resolution 

(Public Law 107-40, 115 Stat. 224); and 

3. Sections 821 and 836 of Title 10, United States Code (the 

Uniform Code of Military Justice). 

Although civilian lawyers are unfamiliar with military commissions, they 

are nevertheless not unknown in American history. Such commissions 

have been upheld by the U.S. Supreme Court, and, despite disuse for nearly 

one-half century, during which time the U.S. has participated in several 

major armed conflicts, they are in fact contemplated by existing law. 19 

U.S. military commissions convicted British Major Andre of espionage in 

the Revolutionary War, tried those accused of the assassination of Presi- 

18. It has been suggested that the Order may have been issued by the President under his 

“Executive Powers,” such as they are, but its specific designation as a “military order” seems 

clearly intended to invoke his power as Commander-in-Chief and not as the chief executive 

officer. 

19. See, e.g. , 10 U.S.C. §§ 821 and 836. 


45


dent Lincoln, imposed the death penalty on German saboteurs who landed 

on Long Island and Florida during World War II (including one who 

claimed U.S. citizenship), and tried some 1,200 German war crimes defendants 

(more than eight times the number tried by the international 

Nuremberg tribunal) and many Japanese defendants. 

Judicial Authority—The Quirin Case 

U.S. Supreme Court cases have clearly established the constitutionality 

of utilizing military commissions at least during the prototypical declared 

war between nations involving members of the armed forces of an 

enemy state. Less clear is the support for military commissions in the context 

of an act of mass murder by 18 individuals neither members of the 

armed forces of any nation state nor even organized in a conventional 

military or even para-military formation. 

In Ex parte Quirin, 20 impliedly relied upon by President Bush (and 

explicitly so by officials in his Administration) as a precedent for the Order, 

21 the Supreme Court upheld, during a declared war, a military 

commission’s jurisdiction over German military saboteurs who had landed 

in the U.S. from a German submarine and then operated in civilian clothing 

and, therefore, in violation of the laws of war. The prosecution in Quirin, 

in opposing the defendants’ application for a writ of habeas corpus, asserted 

that no federal court had jurisdiction to hear the case because the 

military commission’s authority was exempt from habeas corpus under 

the terms of its constitutive order. 22 The Court rejected that contention, 

holding that even alien members of enemy armed forces were entitled to 

the writ when found within the U.S. Having found jurisdiction, the Court 

went on to consider the merits of the military commission’s authority 

notwithstanding the absence of Fifth and Sixth Amendment protections 

in the conduct of the trial before the commission, such as the right to 

trial by jury and other procedural rights that are normal in criminal cases. 

The Court upheld the authority of the commission, grounded on the 

time-honored practice of trying unlawful, enemy-state combatants in a 

20. 317 U.S. 1 (1942) (“Quirin”). 

21. President Bush said on November 19: “These are extraordinary times. And I would 

remind those who don’t understand the decision I made [regarding using a military tribunal] 

that Franklin Roosevelt made the same decision in World War Two. Those were extraordinary 

times as well.” Bush Defends Military Court Option in U.S. Attacks, Reuters, Monday, 

November 19, 2001, 6:06 PM ET, reprinted at http://dailynews.yahoo.com/h/nm/20011119/ 

pl/attack_bush_courts_dc_6.html, viewed November 26, 2001. 

22. The 1942 order is set forth in Appendix B (“1942 Order). 


46


declared war by military commission, which the Court found to be exempt 

from the constitutional right to trial by jury. That exemption exists, 

the Court said, because the practice of such military proceedings was recognized 

by the law of war prior to the adoption of the Constitution and 

was consistently followed in subsequent wars between the U.S. and other 

countries, as well as during the Civil War. 23 

The Quirin decision addressed a case arising within the territory of 

the U.S. during a declared war, and, accordingly in view of other cases 

addressing the distinctive rights of citizens and aliens, its constitutional 

holding must be limited to that situation. With respect to aliens 

outside the U.S., the authority to convene military commissions to try 

law of war violations is subject only to statutory and international law 

limitations. 24 

Legislative Authority—the UCMJ 

Although the Quirin Court did not find it necessary to determine 

whether the President had independent authority as Commander-in-Chief 

to create such commissions, 25 we believe that, although the President may 

have implied authority to do so absent Congressional action, when Congress 

acts Congress has the exclusive authority to define the use of military 

commissions by exercise of its powers “to constitute tribunals infe- 

23. See , historical examples from the Revolution, the Mexican War and the Civil War, cited 

in Quirin, supra, at notes 9 and 10. 

24. “[A]t least since 1886, we have extended to the person and property of resident aliens 

important constitutional guaranties—such as the due process of law of the Fourteenth Amendment. 

Yick Wo v. Hopkins, 118 U.S. 356. But, in extending constitutional protections beyond 

the citizenry, the Court has been at pains to point out that it was the alien’s presence within 

its territorial jurisdiction that gave the Judiciary power to act .” Johnson v. Eisentrager, 339 

U.S. 763, 770 (1950). Even in U.S. possessions the right to trial by jury was not guaranteed 

and was only extended when so provided by Congress. See e.g. ,Dorr v. U.S., 195 U.S. 138 

(1904). Citizens are, however, entitled to trial by jury, even abroad, except in time of war. 

See, Reid v. Covert, consolidated with Kinsella v. Krueger, 354 US 1 (1957); Kinsella v. 

Singleton, 361 US 234 (1960); Grisham v. Hagan, 361 US 278 (1960); and McElroy v. 

Guargliardo, 361 U.S. 281 (1960), which overruled prior UCMJ court martial/commission 

jurisdiction over U.S. citizen spouses accompanying US forces abroad, invalidating inconsistent 

provisions of the UCMJ. This is the background for Pub. L. 106-523, 18 U.S.C. 3261 et seq., 

which creates Article III jurisdiction in such cases to fill the gap. In Reid v. Covert the Court 

allowed court-martial jurisdiction to continue over such persons in time of war, but the Court 

of Military Appeals limited that jurisdiction to periods of declared war; U.S. v. Averette, 19 

C.M.A. 363 (1970). See also, The Military Extraterritorial Jurisdiction Act of 2000: Closing the 

Gap, 95 A.J.I.L. 446 (2001). 

25. Id., at 29. 


47


rior to the Supreme Court,” 26 “to define offenses against the law of nations,” 

27 and “to make rules for the government and regulation of the 

land and naval forces.” 28 In a manner that appears to be consistent with 

the constitutionally permitted exclusion from the domestic right to trial 

by jury of proceedings before traditional military commissions, Congress 

has specifically authorized military commissions to act under the laws of 

war. 29 As will be discussed, however, use of such commissions—as Quirin 

found—requires a war, at the least de facto, if not declared. 

Substantively, Article 21 of the UCMJ, 30 among the statutory provisions 

cited in the Order as authority for its issuance, 31 provides that the 

UCMJ does not deprive military commissions “of concurrent jurisdiction 

with respect to offenders or offenses that by statute or by the law of war 

may be tried by military commissions, provost courts or other military 

tribunals.” 32 The classic case where both the offender and the offense are 

covered is when Japanese General Yamashita was tried for war crimes committed 

against U.S. personnel during the recently-ended World War II. 

Either the defendant’s whereabouts (Yamashita was in custody, taken during 

battle) or the predicate offense (traditional war crimes) could serve as 

a basis for jurisdiction in that case. As an example of jurisdiction over the 

offender, the U.S., as an occupying power, could use military commissions 

to try persons within occupied territory pending establishment of 

26. U.S. Constitution, Article I, Section 8, Clause 9. 



29. See, e.g., 10 U.S.C. §821. In addition to this more direct authority, Congress has also 

recognized military commissions in passing. The legislative history of the War Crimes Act of 

1996 includes the statement by the House Judiciary Committee that such statute ‘is not 

intended to affect in any way the jurisdiction of any court martial, military commission, or 

other military tribunal under any article of the Uniform Code of Military Justice or under the 

law of war or the law of nations.” H.R. Rep. No. 104-698 at 12 (1996). 

30. 10 U.S.C. § 821. 

31. Despite the President’s assertion of Article 21 as authority, some commentators argue that 

this Article simply recognizes the President’s authority without creating it. The distinction is 

metaphysical if Congress has the authority, as we believe, to provide preemptively for the 

rules and regulations of the armed forces and compliance with the laws of nations, including 

the laws of war, if it chooses to do so. Consequently, the terms under which Congress 

recognizes the President’s power to act concurrently are equivalent to rules authorizing the 

President to act. Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (the 

“Steel Seizure Case”) where the President was found to have acted directly contrary to the 

specific intent of Congress in a matter subject to Congressional power. 

32. Emphasis supplied. 


48


civil government, as it did extensively in the post-war occupation of Germany 

and Japan. This was so whether or not the offense related to the 

war and local law then in effect was generally applied. 33 Article 21, and 

therefore, statutory support for military commissions (and constitutional 

authority within the U.S. under Quirin), reaches its limits as to persons 

who are neither offenders nor charged with offenses traditionally tried 

under the law of war by such military commissions. 

Offenses—The Law of War 

With respect to the offense, it is not at all clear that at the time of 

the 9/11 attack the U.S. was engaged in a war or even an armed conflict to 

which the law of war 34 could be applied. International treaty law has 

black letter rules defining when the law of war (or as now often termed, 

the law of armed conflict) applies. For example, Common Article 2 of the 

Geneva Conventions 35 provides that “the present Convention shall apply 

to all cases of declared war or of any other armed conflict which may arise 

between two or more of the High Contracting Parties, even if the state of 

war is not recognized by one of them.” 

Thus, for a state of war to exist under the classic definition of war, 

the conflict must be between states. “The law of war has been conceived 

33. Not long before the adoption of the Constitution, Americans were on the receiving end of 

the military justice of an occupying power when, during the Revolutionary War, British 

military tribunals became the default criminal justice system successively in Boston, Newport, 

New York, Philadelphia and Charleston. Some of the judgments of those tribunals continued 

to be respected by American authorities after the war. See generally, F. B. Wiener, Civilians 

under Military Justice, (Chicago, 1967) at 134. 

34. The Department of Defense defines the law of war as follows: 

3.1. Law of War. That part of international law that regulates the conduct of armed 

hostilities. It is often called the law of armed conflict. The law of war encompasses all 

international law for the conduct of hostilities binding on the United States or its 

individual citizens, including treaties and international agreements to which the 

United States is a party, and applicable customary international law. 

Department of Defense Directive Number 5100.77, December 9, 1998, viewed November 

25, 2001 on the Defense Department web site at http://www.dtic.mil/whs/directives/corres/ 

pdf/d510077_120998/d510077p.pdf (emphasis supplied). The law of war is not, however, 

coextensive with the broader field of international law or law of nations. For example, money 

laundering and drug trafficking are the subject of international treaties but do not relate to the 

conduct of hostilities. 

35. For example, Convention Relative to the Treatment of Prisoners of War, Article 2, opened 

for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. 


49


primarily for armed conflicts between States or groups of States, that is, 

for international armed conflicts.” 36 This international law requirement 

is unfulfilled with respect to the persons covered by the Order. However, it 

is fulfilled for international law purposes with respect to Afghanistan, with 

whose de facto Taliban government the United States has been engaged in 

armed conflict (albeit an undeclared war under U.S. domestic laws). 

Conflicts not between states are covered by the laws of war to a lesser 

degree, as made more precise in the 1977 Protocols to the Geneva Conventions. 

Protocol II for “non-international conflicts,” that is, non-state conflicts, 

applies to those conflicts which “take place in the territory of a 

High Contracting Party between its armed forces and dissident armed forces 

or other organized armed groups which, under responsible command, 

exercise such control over a part of its territory as to enable them to carry 

out sustained and concerted military operations and to implement this 

Protocol.” 37 This definition—also—does not apply to al Qaeda, as the organization 

does not exercise such control over any part of U.S. territory or, 

apparently, Afghan territory to the extent and manner contemplated. 38 

The need for a predicate war to justify a military tribunal is illustrated 

by the 1865 opinion of Attorney General James Speed. The opinion 

was issued with respect to the question of whether military tribunals (by which 

he meant the courts for military justice generally) could be used to try the 

civilian assassins of President Lincoln, whom Speed found to be serving 

the war aims of the enemy. He concluded that such persons were subject 

to the laws of war and to trial by military tribunals because—in times of war: 

A bushwacker, a jayhawker, a bandit, a war rebel, an assassin, 

being public enemies, may be tried, condemned and executed 

as offenders against the laws of war. … The civil courts have no 

more right to prevent the military, in time of war, from trying 

36. Frederic de Mulinen, International Committee on The Red of the Red Cross Handbook on 

the Law of War for Armed Forces (ICRC 1987), at 3. 

37. Part I, Art. 1(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and 

Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 

opened for signature Dec. 12, 1977, 1125 U.N.T.S. 609. 

38. It has been suggested that the limitations on the international law of armed conflict 

tending to exclude most violence not between nations was deliberately intended to deny 

belligerent status to dissidents so that national authorities would have a freer hand in suppressing 

them. See generally George H. Aldrich, The Law of War on Land, 94 A.J.I.L. 42 

(2000). “Perversely, the application of Protocol II is far too narrow….It is perhaps cynical, but 

undoubtedly true, that this narrow applicability of Protocol II explains why there are now 

147 states party to it.” Id. at 60. 


50


an offender against the laws of war than they have a right to 

interfere with and prevent a battle. 39 

Some have argued, including officials in the Bush Administration, 

that the current crisis involving al Qaeda and other international terrorists 

is a “new kind of war,” one in which state participants are not required 

for there to be a state of war in the legal sense, precisely because of 

the amorphous nature of international terrorism. Others have argued that 

while a “war” is required for the Order to be lawful, the armed conflict of 

the United States with Afghanistan’s Taliban puts the country at war for 

some if not all domestic law purposes. The existence of the conflict would, 

thus, allow the Order to be applied against the non-citizen residents to 

whom it is directed by virtue of their nexus with international terrorism 

generally, even if they have no relationship to Afghanistan or the Taliban. 

Still others have refined this argument by “imputing” the al Qaeda to the 

Taliban, or, even, vice-versa, noting that recent evidence indicates that al 

Qaeda may have in fact been controlling the Taliban. 40 

Although the United States has not declared war, and the President, 

in fact, said that he was not seeking a declaration of war, it is not difficult 

to find that for international law purposes the United States is at war in 

Afghanistan. 41 However, in this regard, it is important to note that the 

Order is not limited to the “enemy aliens” with whom we are at war, i.e., 

Afghans, much less to the Taliban or even to al Qaeda. Rather, the Order 

applies to all non-citizens, U.S. resident or not, alleged to have committed 

the acts set forth in it. In contrast, had the Order been limited to 

enemy aliens, members of an armed body, they would be classic “offenders” 

subject to the law of war, including the Geneva Protocols. Had the 

Order been directed to the al Qaeda and the Taliban as a combined entity, it 

might arguably be easier to characterize that joint force as an enemy sub- 

39. James Speed, Opinion on the Constitutional Power of the Military to Try and Execute the 

Assassins of the President, Attorney General’s Office (Washington, July, 1865). Emphasis 

supplied. 

40. See, e.g., Bob Woodward, Bin Laden Said to “Own” the Taliban, The Washington Post, 

October 11, 2001, at A1. 

41. The conceptual difficulty of characterizing this conflict is typified by the fact that although 

the U.S. may be at war “in Afghanistan”, it is not at war “with Afghanistan.” Nationals of 

Afghanistan are not per se “enemy aliens.” Indeed, many may even be allies, without there 

being any reliable mechanism, legal or otherwise, to distinguish friend from foe. It is an 

ambiguous environment in which it is difficult to apply the black and white distinctions of the 

classic law of war. 


51


ject to the laws of war during a time of war with them. Separating al 

Qaeda from the state elements of territory, governance and organized 

troops makes it that much more difficult to view it as a military, as distinguished 

from a criminal (though terrorist), organization. 

The 1942 Order promulgated by President Roosevelt, which served as 

the basis for the military commission in Quirin, stated the specific, objective 

and wholly traditional standard. It applied to: 

all persons who are subjects, citizens or residents of any nation at 

war with the United States or who give obedience to or act under 

the direction of any such nation… . [emphasis supplied.] 

In contrast, it is doubtful whether the constitutional logic behind 

the Court’s opinion in Quirin upholding Roosevelt’s order could be stretched 

to apply to the current Order’s novel application to “any individual who 

is not a United States citizen with respect to whom I determine … there is 

reason to believe that such individual … has engaged in, aided or abetted, 

or conspired to commit, acts of international terrorism, or acts in 

preparation therefore, that have caused, threaten to cause, or have as their 

aim to cause, injury to or adverse effects on the United States, its citizens, 

national security, foreign policy, or economy ….” 42 [emphasis supplied] 

This point, it should be emphasized, does not diminish the right of 

the U.S. armed forces fighting in Afghanistan to both capture and try by 

military commission abroad members of either the Taliban or al Qaeda 

who are participating in the combat and are alleged to have committed 

acts in violation of the law of war. Many of the constitutional guarantees 

under the Fourth, Fifth and Sixth Amendments do not apply to noncitizens 

outside the U.S. 43 and certainly not to persons captured during 

hostilities conducted by U.S. armed forces. 44 

Offenders—In the U.S. and Abroad 

With respect to determining the offender status of persons subject to 

the Order, civilians residing in the U.S. and not in or near a theater of military 

operations or engaged as combatants are examples of offenders who 

have never been judicially determined to have been subject to the jurisdiction 

of military commissions under our laws. For example, in Ex parte Milligan, 45 a 

42. Order, at § 2. 

43. See e.g. ,United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). 

44. See e.g.,Johnson v. Eisentrager, 339 U.S. 763 (1950). 

45. 71 U.S. 2 (4 Wall.) (1866). 


52


Civil War case, “Milligan, a citizen twenty years resident in Indiana, who 

had never been a resident of any of the states in rebellion, was found not 

to be subject to trial by a military commission because he was not an 

enemy belligerent either entitled to the status of a prisoner of war or 

subject to the penalties imposed upon unlawful belligerents.” Quirin, supra, 

at 45. Yet, non-citizen, U.S. residents accused of the crimes set forth 

in the Order relating to 9/11, such as aiding, abetting and harboring al 

Qaeda, but who may fall far short of violating the laws of war applicable 

to saboteurs and the like, are among the direct targets of the Order (compare 

this to Mr. Milligan, who was accused of rebellion). 

The application for domestic statutory and constitutional purposes 

of the laws of war should be distinguished from the international law 

regarding the existence of a state of war or the right of the U.S. to take 

military action in self-defense against an attack or against a country that 

harbors the attackers. As indicated above, the latter action has been affirmed 

internationally by the Security Council of the United Nations and 

by the North Atlantic Treaty Organization, and domestically by Congress. 

Moreover, as also indicated above, there is no substantive issue as to 

the statutory or constitutional authority of a military commission to try 

aliens outside the U.S. 

The issue of greatest importance is whether the present circumstances 

permit the application of the laws of war under domestic law to deny the 

application of constitutional rights otherwise available to persons within 

the U.S. That question is most acute as to the circumstance in which, say, 

armed members of the Taliban, with whom we are engaged in an undeclared 

war, or of al Qaeda—the specific subjects of the Order and whose 

personal status is less clear—are found entering or already in the United 

States to commit hostile acts. 

For these persons (at least unlawful, Taliban combatants), the subject 

matter authority for the President to utilize a military commission to 

try such persons based on their acts seems clear under the Constitution as 

interpreted by Quirin. With respect to the individual status of such captured 

“combatants,” the Taliban members would almost certainly qualify 

as combatants under the law of armed conflict (although potentially 

unlawful, depending on such factors as their uniforms and behavior) whose 

prosecution is subject to the provisions of the international law of armed 

conflict. 46 The al Qaeda members are more difficult to characterize, de- 

46. Whether the Taliban is recognized as the de jure government of Afghanistan (which is 

doubtful considering that that government has been recognized neither by the United Nations 


53


pending on the evidence linking them to being controlled by, or controlling, 

the Taliban, a state-like entity. This leaves some doubt as to the legality 

of utilizing a commission to try them in the United States without 

a jury trial. 

On the other hand, persons charged only with “aiding,” “abetting,” 

“conspiracy” or simply “harboring” the other persons subject to the Order, 

that is, people who have committed traditionally civilian criminal 

acts rather than the “commission” of military-like terrorist acts themselves, 

may not be tried in a military commission as the Order contemplates. 

Such persons are guaranteed a trial by jury by the Bill of Rights, as 

interpreted by the Supreme Court in Milligan and Quirin. The many aliens 

detained by the U.S. and charged with crimes were accused of subsidiary 

offenses, such as immigration violations, money laundering, credit card 

fraud or other money-raising crimes. Persons such as these, charged with 

civilian crimes, are exceedingly unlikely to come within the class of persons 

traditionally tried by the law of war. To such extent, the Order must 

be deemed facially invalid. 

SUBSTANTIVE OVERREACH—PERVASIVE DEATH PENALTY 

AND UNRELATED TERRORISM 

A corollary of the jurisdictional application of the laws of war is the 

resulting substantive penalty. The traditional laws of war are Draconian 

in applying the death penalty to irregular combatants out of uniform 

and not carrying arms openly. Mere presence in the enemy force constitutes 

the offense without more. Thus, if the laws of war apply to such 

irregulars, the death penalty follows. If the laws of war do not apply, a 

military commission has no jurisdiction. This extreme black and white 

result should require the greatest caution in extending the laws of war to 

situations not traditionally contemplated. 

Moreover, the Order by its terms may be applied to the commission 

of acts of international terrorism whether or not related to al Qaeda or 

the 9/11 attacks. It could, for example, be applied to prosecute aliens in 

the U.S. supporting terrorism in Northern Ireland having “adverse effects 

on … [U.S.] foreign policy,” a legitimate government measure but far re- 

nor most of the international community) or as a dissident force being fought by the lawful 

government, their status for law of war purposes is the same. In the first case, there would be 

a conflict between states subject to the 1949 Geneva Conventions. In the second, under 1977 

Geneva Protocol II, as noted supra, they could be deemed dissidents in control of territory of 

a High Contracting Party and also subject to the protection of that treaty. 


54


moved from a U.S. war. This broad jurisdictional reach is consistent with 

the concept of a “war on terrorism” but inconsistent with any definable 

“war” in the sense known to U.S. jurisprudence. 47 

As these principles are therefore applied to the Order, the Order does not 

confine its scope to either offenders or offenses traditionally tried under the 

law of war, as provided by law, implied in the Constitution and required 

by the Quirin Court. Absent Congressional action, we cannot see how the 

President in the current situation has authority permitting him to convene 

military commissions to proceed inside the U.S. against traditionally 

civilian crimes without providing grand jury indictment, jury trials or the 

right to confront witnesses, among other constitutionally guaranteed rights. 48 

We must, therefore, conclude that the Order substantively violates 

both Article 21 of the UCMJ and, as to persons within the U.S., the Constitution, 

as well, to the extent that it covers offenses and offenders not 

covered by the law of war as historically described in Quirin. That possible 

legal infirmity and, at the very least, uncertainty, severely undercuts the 

policy objectives of the Order as more fully discussed below. 

PROCEDURAL CONCERNS UNDER THE UCMJ 

In addition to the substantive issue, there is a procedural concern. The 

Order cited as additional authority Article 36 of the UCMJ, 49 which pro- 

47. The Justice Department recently released a partial list of those persons arrested in connection 

with the anti-terrorist campaign (although not necessarily pursuant to the Order), including, 

for some of them, the crimes of which they are accused. It is reported that some of the 

crimes alleged are civilian in nature, even if the larger purpose is to raise money for an 

organization like al Qaeda. For example: “Three more men on the list were indicted in New 

Jersey for conspiracy to embezzle, according to Michael Drewniak, a spokesman for the 

United States Attorney’s office in Newark. The men, Hussein and Nasser Abduali and Rabi 

Ahmed, were charged with conspiring to buy, receive and possess $43,270 worth of stolen 

corn flakes. All three have been released pending trial.” Lewin, Accusations Against 93 Vary 

Widely, New York Times on the Web, November 28, 2001. 

48. In his concurring opinion in Hirayabashi v. U.S., 320 U.S. 81 (1943), Justice Murphy 

said, “We give great deference to the judgment of the Congress and of the military authorities 

as to what is necessary in the effective prosecution of the war, but we can never forget that 

there are constitutional boundaries which it is our duty to uphold. It would not be supposed, 

for instance, that public elections could be suspended or that the prerogatives of the courts 

could be set aside, or that persons not charged with offenses against the law of war (see Ex 

parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3) could be deprived of due process of law and 

the benefits of trial by jury, in the absence of a valid declaration of martial law.” Id. at 110. 

49. 10 U.S.C. §836. We note that the language limiting Article 36 to “cases arising under this 

Chapter” was added in 1979. P.L. 96-107, Title VIII, §801(b). 


55


vides that “for cases arising under this Chapter” [the UCMJ] the President may 

prescribe by regulation the procedures for military commissions, subject to two 

qualifications on the President’s authority to promulgate those procedures. 50 

First, Article 36 provides that the procedures established “shall, so far 

as he considers practicable, apply the principles of law and the rules of 

evidence generally recognized in the trial of criminal cases in the United 

States district courts.” In the Order, President Bush declares in haec verba 

that such principles and rules are not practicable to apply under the Order. 

That extraordinary finding is presumably his prerogative, whether or 

not it is a wise exercise thereof. 

Secondly, and the more important qualification for present purposes, 

Article 36 specifies that the procedures followed “may not be contrary to 

or inconsistent with this chapter [the UCMJ].” The Order only outlines 

the parameters for procedures to be implemented by orders and regulations 

of the Secretary of Defense 51 However, the framework of the Order is 

already inconsistent with the essential elements of due process provided 

for in the UCMJ in numerous respects. 52 Accordingly, if Article 36 is indeed 

necessary authority for the Order, then the Order appears to be procedurally 

defective. 

Exclusive Jurisdiction for Military Commissions 

Finally, the Order states that “with respect to any individual subject 

50. Initially, however, one must determine whether or not a violation of the law of war is a 

case “arising under this Chapter.” We believe that it is not, and, if that is so, the President then 

does not derive his authority to promulgate regulations from that Article, and, conversely, the 

proscriptions of Article 36 would not apply to that authority at all. This belief rests both on an 

historical understanding and on statutory analysis. Historically, as explained infra , military 

tribunals predate both the UCMJ and, for that matter, the Constitution and, therefore, violations 

of the law of war arose under long-recognized international laws of war and did not 

arise under a domestic statute. Further, a careful reading of Article 18, conferring jurisdiction 

on general courts-martial, makes plain that such courts have jurisdiction over two types of 

cases: (i) jurisdiction to try “any offense made punishable by this chapter,” and (ii) “also … 

jurisdiction to try any person who by the law of war is subject to trial by a military tribunal….” 

Emphasis supplied. The first case specifically arises ‘under this Chapter’; the second, 

violations of the war, are in a separate sentence from the first, which separate sentence does 

not reference crimes offenses under “this chapter” but instead refers to offenses against the 

law of war. Nonetheless, because the President claims authority from Article 36, we discuss 

above how Article 36 would apply if, as the President contends, it does. 

51. Such procedures have not yet been issued at the time this Report was prepared. 

52. Differences between the procedures required by the Order and those assured by the 

UCMJ include the following: 


56


to this order … military tribunals shall have exclusive jurisdiction with 

respect to offenses by the individual….” 53 This grant of exclusive jurisdiction 

to military commissions appears to conflict with the Congressional 

intent underlying Article 18 of the UCMJ, which provides that for purposes 

of prosecutions for violations of the law of war, general courts martial 

shall have jurisdiction concurrent with military tribunals: 

General courts-martial also have jurisdiction to try any person 

who by the law of war is subject to trial by a military tribunal 

and may adjudge any punishment permitted by the law 

of war. 

Inasmuch as the UCMJ by its terms applies to prisoners of war, 54 we conclude 

that Order conflicts with Congress’ determination that courts martial 

and military tribunals (commissions) should have concurrent jurisdiction 

with respect to prosecution of POWs for violations of the laws of war. 

PREVENTIVE ARREST, INDEFINITE DETENTION 

AND THE SUSPENSION OF HABEAS CORPUS 

The provisions of the Order regarding detention of persons subject 

• Proof beyond reasonable doubt (10 U.S.C. § 851(c)), whereas the Order does not 

specify a standard of proof, which could under minimum standards of the laws of 

war be less than proof beyond reasonable doubt. 

• The right of the defendant to be present at proceedings (10 U.S.C. § 839), whereas 

the Order allows for the possibility of secret ex parte proceedings (§ 4(c)(4)(b). 

• Defense role in selection of the court-martial panel, whereas the members of a 

military commission convened under the Order would not be subject to challenge by 

the defense. 

• Defense right to choose counsel (10 U.S.C. § 838(b)) whereas the Order limits 

defense counsel to attorneys “subject to this order” (§ 4(c)(5). 

• Unanimity in applying death sentence (10 U.S.C. § 852(a)), whereas the Order 

provides for “conviction only upon the concurrence of two-thirds of the members of 

the commission” (§ 4(c) (6). 

• Appellate review of decisions (10 U.S.C. §§ 866, 867, 867(a), 869), whereas the 

Order precludes any appellate review by the courts (§ 7(b)), and allows review only 

insofar as the regulations promulgated under the Order may provide as a matter of 

administration. 

53. Military Order, § 7(b)(1). 

54. UCMJ, 10 U.S.C. §802 (a)(9). 


57


to it permit seemingly indefinite detention without charges, trial, 55 or the 

right to seek a remedy in federal or state courts. Thus, the Order provides 

for ‘preventive arrests,’ unlimited detention, and literally suspends the 

privilege of the writ of habeas corpus, notwithstanding statements by 

Administration officials to the contrary. These provisions are clearly unconstitutional 

as to the writ of habeas corpus and extremely controversial 

as to detention. 

Preventive arrests are anathema to American values. It is bedrock in 

American constitutional law that the deprivation of liberty may only occur 

pursuant to the principles and mechanisms of due process enshrined 

in the Bill of Rights. To determine whether liberty has, in fact, been properly 

deprived, the Framers maintained the privilege of the writ of habeas corpus 

by its specific incorporation into the constitution. 

Habeas Corpus 

The privilege of the writ of habeas corpus is considered a “magna 

carta of the kingdom.” 56 Justice Story said of it: 

It is … justly esteemed the great bulwark of personal liberty; 

since it is the appropriate remedy to ascertain, whether any person 

is rightfully in confinement or not, and the cause of his confinement; 

and if no sufficient ground of detention appears, 

the party is entitled to his immediate discharge. This writ is 

most beneficially construed; and is applied to every case of illegal 

restraint, whatever it may; for every restraint upon a man’s 

liberty is, in the eye of the law, an imprisonment, wherever 

may be the place, or whatever may be the manner, in which the 

restraint is effected. 57 

Chief Justice Rehnquist has praised the privilege thusly: “It has been rightly 

55. The Order provides only that the detainees be treated humanely; given adequate food, 

water, shelter and medicine, allowed the free exercise of religion, and otherwise be subject to 

rules to be made by the Secretary of Defense. It even provides that detention may be outside 

the borders of the United States. Order, at § 3. We assume that circumvention of the rights of 

aliens within the U.S. by arrest and forced removal from the country for delivery to a remote 

trial location as literally permitted by this section of the Order (i.e., kidnapping) would violate 

those rights. 

56. William Blackstone, Commentaries, 3:129-37 (1768), reprinted in The Founders’ Constitution, 

Vol. 1, at 324-327 (University of Chicago Press 1987). 

57. Joseph Story, Commentaries on the Constitution, 3:§§1333-36 (1883), reprinted in The 

Founders’ Constitution, supra (hereinafter “ Story, Commentaries on the Constitution”), at 342. 


58


regarded as a safeguard against executive tyranny, and an essential safeguard 

to individual liberty.” 58 

Beginning in the Nineteenth Century and continuing without exception 

through to the present day, the Supreme Court has consistently 

held that non-citizens within the jurisdiction of the United States are 

“persons” within the meaning of the Fifth Amendment and are thus entitled 

to the protections of the due process clause. 59 In fact, it was recognized 

by the Supreme Court in the wartime cases Quirin and Yamashita as 

available even to members of the German military and to the Japanese 

command within the U.S. (or in Yamashita’s case, in the Philippines under 

U.S. rule) to test the authority of a military commission to detain and 

try them. 60 It is also available to persons charged under the UCMJ and 

held for court martial under that statute. 61 

As noted, the President’s Order states that the authority for its issu- 

58. Remarks of Chief Justice William H. Rehnquist, 100th Anniversary Celebration Of the 

Norfolk and Portsmouth Bar Association, Norfolk, Virginia, May 3, 2000 available at http:// 

www.supremecourtus.gov/publicinfo/speeches/sp_05-03-00.html (hereinafter “Rehnquist 

Remarks”). 

59. See, e.g. ,Wong Wing v. United States, 163 U.S. 228, 238 (1886) (resident aliens entitled 

to Fifth Amendment rights); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (resident 

alien is a “person” within the meaning of the Fifth Amendment); Mathews v. Diaz, 426 U.S. 

69, 77 (1976) (“There are literally millions of aliens within the jurisdiction of the United 

States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of 

these persons from deprivation of life, liberty, or property without due process of law. Even 

one whose presence in this country is unlawful, involuntary, or transitory is entitled to that 

constitutional protection.”) (citations omitted); United States v. Verdugo-Urquidez, 494 U.S. 

259 (1990) (distinguishing reach of Fourth Amendment to cover only “the people”—as in “we 

the people”—from Fifth Amendment’s protection of “any person”). See also United States v. 

bin Laden, 132 F.Supp.2d 168, 181 (2001) (a non-citizen whose only connections to the 

United States are his alleged violations of U.S. law and his subsequent U.S. prosecution is 

entitled to due process of law under the Fifth Amendment). 

60. “In Ex parte Quirin, 317 U.S. 1 , we held that status as an enemy alien did not foreclose 

“consideration by the courts of petitioners’ contentions that the Constitution and laws of the 

United States constitutionally enacted forbid their trial by military commission.” Id. at 25. 

This we did in the face of a presidential proclamation denying such prisoners access to our 

courts. … [I]n Yamashita v. United States, 327 U.S. 1, we held that courts could inquire 

whether a military commission, promptly after hostilities had ceased, had lawful authority to 

try and condemn a Japanese general charged with violating the law of war before hostilities 

had ceased. There we stated: “[T]he Executive branch of the Government could not, unless 

there was suspension of the writ, withdraw from the courts the duty and power to make such 

inquiry into the authority of the commission as may be made by habeas corpus.” Id. at 9.” 

Black, J. dissenting in Johnson v. Eisentrager, 339 U.S. 763, 794 (1950). 

61. See, e.g. , 28 USC 2241(c). 


59


ance is (1) the President’s authority as Commander-in-Chief of the Armed 

Forces, (2) the Authorization for Use of Military Force Joint Resolution 

(Public Law 107-40, 115 Stat. 224) and (3) Sections 821 and 836 of the 

UCMJ. 

The Constitution states in Article I (the enumeration of Congress’ 

powers), Section 9 (a list of limitations on those Congressional powers): 

Clause 2: The Privilege of the Writ of Habeas Corpus shall not 

be suspended, unless when in Cases of Rebellion or Invasion 

the public Safety may require it. 

It seems plain from the text of the Constitution that only the Congress, 

not the President—whether as Commander-in-Chief or otherwise—has 

the authority to suspend habeas corpus, and then only in the two circumstances 

mentioned. The Supreme Court has upheld that principle 

and the most prominent of commentators on the Constitution have 

agreed. 62 

The other bases cited in the Order for the President’s authority to 

detain the subject persons indefinitely without recourse offer no support 

either. The text of Congress’ Resolution Authorizing Use of Military Force— 

the second cited basis—does nothing to alter habeas corpus whatsoever, 

much less authorize the President to do so. In fact, it plainly refers specifically 

and solely to the use of military force., Hence its title. Section 2, the 

substantive section of the Resolution, is titled “Authorization For Use Of 

United States Armed Forces” and provides simply: “That the President is 

authorized to use all necessary and appropriate force …”, 63 with nothing 

said about arrests, detentions, habeas corpus or the like. It therefore ap- 

62. See Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487), (C.C.D. Md. 1861) (Chief Justice 

Taney, sitting as a circuit judge, wrote: “I had supposed it to be one of those points in 

constitutional law upon which there was no difference of opinion, … that the privilege of the 

writ could not be suspended, except by act of Congress.” Id. at 148.) After Lincoln ignored the 

decision and kept Merryman in prison, Congress acted to authorize the suspension of the writ 

of habeas corpus. See also, St. George Tucker, Blackstone’s Commentaries 1:App.290-92 

(1803), reprinted in The Founders’ Constitution, supra, at 329: “In the United States, [the 

writ] can be suspended, only, by the authority of congress; but not whenever congress may 

think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion.” 

Accord, Story, Commentaries on the Constitution, supra, at 342 (“It would seem, as the 

power is given to congress to suspend the writ of habeas corpus in cases of rebellion or 

invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that 

body.”) 

63. The Resolution is set forth in Appendix C. 


60


pears clear that the Use of Force Resolution cited by the President as a 

basis for his authority in issuing the Order also does not, in fact, provide 

such authority. 

Finally, the Order refers for authority to Articles 21 and 36 of the 

UCMJ, both of which go to the issue of military commissions, as discussed, 

supra. Neither provide for a Congressional suspension of the privilege 

of habeas corpus or have anything to do with that subject but are 

cited, apparently, for authority regarding the Order’s establishment of 

military commissions, discussed supra. Thus, these provisions also offer 

no authority for the detention provisions of the Order. 

It appears clear, therefore, that the three bases cited in the Order by 

the President do not in fact provide the legal authority necessary to validate 

the provisions of the Order effectively suspending habeas corpus. 

To conclude, the power to suspend the privilege of the writ of habeas 

corpus is given to Congress and the President may not exercise it independently. 

Congress, in fact, has acted with respect to the events of September 

11, 2001, in connection with habeas corpus. On October 26, 2001, it adopted 

legislation sought by the Administration; the USA Patriot Act of 2001, 64 

whose full name is “Uniting and Strengthening America by Providing 

Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot 

Act) Act [sic] of 2001.” The Act was intended, as its name indicates, 

to provide a comprehensive set of “tools” to the federal government in 

the service of law enforcement and intelligence gathering. 

The USA Patriot Act specifically addresses habeas corpus in Section 

412 (Mandatory Detention Of Suspected Terrorists; Habeas Corpus; Judicial 

Review). 65 That Section amends Section 236 of the Immigration and 

Nationality Act to provide that aliens subject to the Act who are detained 

must be criminally charged or placed in removal proceedings within seven 

days following commencement of detention, unless release of the alien 

64. Public Law 107-56. Interestingly, Senator Patrick Leahy, Chairman of the Senate Judiciary 

Committee, which took the Administration’s urgent request for the Act and reported it out 

rapidly, expressed surprise that the Administration should have requested this Act on an 

urgent basis, failed to act under it and then issued—without any prior notice to Congress, 

much less authority from it—the Military Order containing very different provisions. Comments 

by Senator Patrick Leahy made on the television news show Meet the Press, November 

25, 2001. Perhaps the President’s action is not so surprising considering the refusal of Congress 

to approve the full range of powers sought by the Administration. Having failed to get 

the desired statutory authority, the President acted as if he did not need it. 

65. Section 412 of the USA Patriot Act is reproduced in Appendix D. 


61


will result in activity that endangers the national security of the United 

States. In that case, the Attorney General must so certify and recertify 

every 6 months thereafter, if the alien is to continue in detention. Importantly, 

habeas corpus proceedings to review decisions made under the Section 

are available to the suspect alien on application to the Supreme Court, 

any Justice of the Supreme Court, any circuit judge of the D.C. Circuit 

Court of Appeals, or any district court with jurisdiction. Further still, 

determinations by district courts or circuit court judges are subject to appeal 

to the D.C. Circuit Court of Appeals. 66 

This provision of the Congressional act differs profoundly from the 

President’s Order with respect to the application of habeas corpus to aliens 

arrested within the United States and suspected of connection to terrorism. 

The Order provides no release process, no certification process, no 

right to a petition of habeas corpus and no right to appeal adverse decisions. 

The analogy to the Steel Seizure Case is apparent. There, the President—by 

seizing strike-bound steel mills in order to continue production 

of steel to supply the armed forces then engaged in Korea—acted contrary 

to the will of Congress expressed through various statutory schemes, in 

an area the power over which belonged to Congress. Of such extreme and 

far-reaching Presidential behavior contrary to the expressed will of Congress, 

Justice Jackson wrote in his concurring opinion: 

When the President takes measures incompatible with the 

expressed or implied will of Congress, his power is at its lowest 

ebb, for then he can rely only upon his own constitutional 

powers minus any constitutional powers of Congress over the 

matter. Courts can sustain exclusive presidential control in such 

a case only by disabling the Congress from acting upon the 

subject. Presidential claim to a power at once so conclusive and 

preclusive must be scrutinized with caution, for what is at stake 

is the equilibrium established by our constitutional system. … 

In short, we can sustain the President only by holding that 

seizure of such strike-bound industries is within his domain and 

beyond control by Congress. Thus, this Court’s first review of 

such seizures occurs under circumstances which leave presidential 

power most vulnerable to attack and in the least favorable 

of possible constitutional postures. 

66. It should be noted that the USA Patriot Act is viewed by many civil liberties lawyers as 

“dangerous” in its expansion of the definition of what constitutes terrorism, the basis for an 

alien’s detention and the like. See, e.g. , New York Times, November 25, 2001, A1, B4. 


62


Id., at 637-638. Justice Jackson continued his analysis by finding that 

neither the President’s Constitutional ‘Executive’ powers, nor his Commander-in-Chief 

authority (whether in time of war de facto or de jure), 

nor his obligation to faithfully execute the laws could trump the Constitution’s 

plain grant of authority to Congress to raise and support armies and to 

provide and maintain a navy. 67 

Here, as noted, the power to suspend habeas corpus is granted to the 

Congress by Article I of the Constitution, and the USA Patriot Act—which 

does not suspend the privilege but in fact specifically makes it available— 

is the act of Congress on the subject. It is, therefore, our conclusion that 

the Order, which effectively seeks to suspend the privilege of habeas corpus 

for those aliens subject to it and detained under it, impermissibly 

seeks to exercise a power not only reserved to the Congress but one already 

exercised by the Congress in this specific area in a contrary manner. As 

such, determinations under the Order will likely be subject to successful Constitutional 

attack on this ground, leading to a significant amount of litigation 

at a time when efficiency and speed of process is the desired result. The Order 

in this regard, therefore, not only appears to be illegal, but unwise. 

In response to questioning from various sources, including members 

of this Committee, Administration officials stated that the Administration 

had no intention of opposing the right of detained persons to seek 

the writ of habeas corpus. They claimed that the Order was not intended 

to do so despite the language of Section 7, but acknowledged that the 

nearly identical provisions of the 1942 Order in question in Quirin did seek 

to suspend habeas corpus and had been ruled unconstitutional. 68 Such 

informal statements about the true meaning of the Order or the President’s 

intent in issuing it, without amendment of the Order or Congressional 

legislation, are less than satisfactory. 69 

67. Nor, for that matter, did “inherent powers never expressly granted but said to have 

accrued to the office from the customs and claims of preceding administrations” provide the 

President authority to seize private industry to aid the war effort, id., at 645. 

68. See , Comments by Assistant Attorney General Michael Chertoff and White House Counsel 

Alberto Gonzales, ABA Meeting. 

69. They may also be less than accurate. It is reported that Attorney General Ashcroft did try 

to get Congress to suspend the privilege of the writ of habeas corpus when it adopted the USA 

Patriot Act. Newsweek, Dec. 10, 2001, at 48, reports that the secret first draft of the antiterrorism 

bill presented by the Justice Department had a section entitled “suspension of the 

Writ of Habeas Corpus.” Rep. Sensenbrenner (Chairman of the House Judiciary Committee) 

said: “that stuck out like a sore thumb. It was the first thing I [crossed] out.” Other claims made 

by Administration officers likewise do not flow from the text of the Order, e.g., that the Order 


63


Severability 

If a provision of the Order, such as the suspending of habeas corpus, 

were to be found unconstitutional, it is unclear what effect that finding 

would have on the remainder of the Order, since the Order lacks a severability 

provision. In Quirin, supra, the 1942 Order lacked a severability 

provision, but its attempt to suspend habeas corpus was found to be invalid 

without affecting the substance of the military commission’s authority 

set forth in the remaining portion of that order. The Court in 

Quirin did not discuss severability. 

Although the Military Order used virtually the same language for the 

suspension of habeas corpus which appears in the 1942 Order (which was 

found invalid), the 1942 Order expressly provided for the possibility of 

correction by the regulations to follow: 

[S]uch persons shall not be privileged to seek any remedy or 

maintain any proceeding directly or indirectly, or to have any 

such remedy or proceeding sought on their behalf, in the courts 

of the United States, or of its States, territories, and possessions, 

except under such regulations as the Attorney General, with the approval 

of the Secretary of War, may from time to time prescribe. 70 

The Military Order provides no such opportunity for subsequent correction 

and, thus, the courts may in this instance take a different view of the 

absence of a severability provision than did the Quirin court. 

Detention of Enemy Aliens 

Congress has also acted, albeit not recently, in the form of the Alien 

Enemies Act, 50 U.S.C. § 21, permitting the detention or expulsion of aliens 

can provide justice “close to where our forces are fighting,” Alberto R. Gonzales, Martial 

Justice, Full and Fair, New York Times, November 30, 2001 (“Gonzales Op-Ed”), whereas 

the Order can plainly be used for trial in the United States and even provides that the 

Department of Justice transfer to the Department of Defense subject persons it is detaining. It 

cannot be imagined that Judge Gonzales is proposing that persons of that group who might be 

tried under the Order would be shipped to Afghanistan to be close to the combat during their 

trial. Judge Gonzales also writes that “The order preserves judicial review in civilian courts,” 

whereas Section 7 specifically precludes any proceeding or any remedy in any court. When 

asked at the ABA Meeting whether this section meant denial of the writ of habeas corpus, the 

Assistant Attorney General for the Criminal Division Michael Chertoff said it did not but was 

intended to “prevent injunctions and appeals from military courts.” This is at odds with Judge 

Gonzales’ assertions published the next day. 

70. 1942 Order. Emphasis supplied. 


64


over age 14 within the U.S. who are citizens of a foreign government or state 

with which the U.S. is in a declared war or subject to “any invasion or predatory 

incursion …perpetrated, attempted or threatened against the territory of 

the United States.” 71 While the 9/11 attacks may have constituted a “predatory 

incursion against the territory of the United States,” they were not perpetrated 

by a “foreign nation or government” as required by Section 21 

and, thus, the Alien Enemies Act does not apply to the 9/11 attacks. 

These provisions—including this statute, its predecessors and those 

like it (e.g., those establishing military areas within the United States during 

World War II, serving as the basis for Executive Order 9066 in 1942)— 

were classically applied, if at all, in declared war against the entire class of 

enemy aliens, all citizens of the enemy state, along with the expropriation 

of enemy property. 72 In World War II, they were also put into effect 

ruthlessly against Japanese nationals found in the United States, in an 

operation now viewed as a national disgrace. Similar steps were taken 

against U.S. citizens of Japanese descent. 73 It is noted that the Commis- 

71. Section 21 provides: 

Whenever there is a declared war between the United States and any foreign nation 

or government, or any invasion or predatory incursion is perpetrated, attempted or 

threatened against the territory of the United States by any foreign nation or government, 

and the President makes public proclamation of the event, all natives, citizens, 

denizens, or subjects of the hostile nation or government, being of the age of fourteen 

years and upward, who shall be within the United States and not actually naturalized, 

shall be liable to be apprehended, restrained, secured, and removed as alien enemies. 

The President is authorized in any such event, by his proclamation thereof, or other 

public act, to direct the conduct to be observed on the part of the United States, 

toward the aliens who become so liable; the manner and degree of the restraint to which 

they shall be subject and in what cases, and upon what security their residence shall be 

permitted, and to provide for the removal of those who, not being permitted to reside 

within the United States, refuse or neglect to depart therefrom; and to establish any 

other regulations which are found necessary in the premises and for the public safety. 

72. “The resident enemy alien is constitutionally subject to summary arrest, internment and 

deportation whenever a “declared war” exists. Courts will entertain his plea for freedom from 

Executive custody only to ascertain the existence of a state of war and whether he is an alien 

enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been 

determined, courts will not inquire into any other issue as to his internment. Ludecke v. 

Watkins, 335 U.S. 160.” Johnson v. Eisentrager, supra at 775. 

73. President Gerald Ford issued a national apology in 1976, calling the actions against 

Americans of Japanese descent a “setback to fundamental American principles.” Presidential 

Proclamation No. 4417, 41 Fed. Reg. 7741 (1976). The Proclamation formally rescinded 

Executive Order No. 9066, issued in 1942. Subsequently, compensation was paid to U.S.- 

citizen detainees. 


65


sion on Wartime Relocation and Internment of Civilians, established in 

1980 by Congress to review the 1942 Executive Order providing for the 

internment, found that there was “no justification in military necessity 

for the exclusion, … there was no basis for the detention.” 74 

Broad, class-based detention or expulsion, when confined to enemy 

aliens, may have made sense in the context of traditional war between 

national states against persons owing allegiance to the enemy and reasonably 

be expected to act on its behalf, but such actions have little relevance 

to the contemporary crisis involving a cross-border, multinational 

extremist culture and not an enemy state or states. Such a culture has no 

“citizens,” and, thus, determining whom to detain or expel as the Order 

aggressively does—other than based on their individual actions—is nearly 

impossible without casting a net so broad as to be pernicious. Consequently 

it is not surprising that the Order did not cite 50 U.S.C. § 21 or 

indeed any statutory authority for its unlimited detention provisions. 

The Administration has sought to portray the Order as applying only 

to enemy combatants. The White House Counsel said recently that “The 

order covers only foreign enemy war criminals” 75 —and even then only 

for “violations of the laws of war.” 76 The Order itself, however, does not in 

fact specify either the claimed limitation on the class of subject persons 

or the claimed limitation on the activities by which they become subject 

to the Order. 

The detention provisions of the Order are, therefore, surprising, both 

in view of the U.S. acknowledgment of its egregious error in World War 

II—oft cited as precedent—and of the present acquiescence by Congress 

(through the USA Patriot Act) in expanding the detention powers over 

aliens suspected of terrorist connections alongside the specific provision 

of the right of habeas corpus with appeals from decisions when doing so. 

No act of Congress has been found that provides for either the detention 

provisions referred to in the Order or for authority for the President 

to act in the area. Simply, the Order purports to give the President 

this power by fiat. That claim will most certainly be tested by habeas 

corpus proceedings within the U.S. to determine whether the Order trumps 

the Constitution’s award of authority in this area to Congress, which has 

acted through Section 412 of the USA Patriot Act. 

74. Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied 

(1982), at 3, 10, cited in Dycus, et. al, eds. National Security Law, (2d Ed. 1997), at 572-573. 

75. Gonzales Op-Ed, supra. 

76. ABA Meeting, November 30, 2001. 


66


With respect to indefinite detention without remedy, we have no 

doubt that, concerning aliens in the United States during time of declared 

war, the federal government could create a scheme substantially 

restricting the rights they were previously provided—a scheme that would 

be upheld by the courts. Much, however, would depend on the factual 

circumstances. In World War II, the internment of Japanese nationals (as 

distinct from the internment of U.S. citizens of Japanese descent) occurred 

at a time of very substantial and genuine threats to the security of the 

nation as a whole. In fact, Chief Justice Rehnquist, in perhaps a prescient 

speech reviewing this history in May of 2000, provided this conclusion: 

“The authority of the government to deal with enemy aliens in time of 

war, according to established case law from our Court, is virtually plenary.” 

77 In the present circumstances, however, absent any enemy nation, 

it is impossible to identify the nationals or citizens of the “enemy.” Consequently, 

the term “enemy alien” has no determinable meaning. 

We conclude that the Order’s provision for indefinite detention of aliens 

suspected of terrorist connections or harboring those who have them—particularly 

given the denial of all remedies—is improper because the President 

lacks the Constitutional authority to issue an order applicable to 

aliens in the U.S., and Congress has already provided a different scheme 

with respect to such persons. 78 As a practical matter, we believe that these 

provisions of the Order, if utilized, will lead to widespread litigation testing 

both the President’s authority to issue it, and, as it may be applied, to 

individual detainees. Further, such litigation is likely to be successful at least 

with respect to the question of the Order’s suspension of habeas corpus. 79 

Even if the President has the authority to detain persons within the 

classes targeted by the Order, it would remain to be determined whether a 

particular detainee within the U.S. comes within one of those classes. 

Therefore, such habeas corpus proceedings might extend not only to de- 

77. Rehnquist Remarks, supra. 

78. Because of this conclusion, it is not necessary to determine whether the circumstances 

permitting suspension of the privilege of the writ of habeas corpus—rebellion or invasion— 

have occurred and have been found to have occurred by the Congress, although it seems plain 

that the former events have not and the latter is dubious. 

79. It is interesting to note that the delays associated with such challenges do not seem to 

concern the Administration. The Department of Defense General Counsel, William Haynes, 

when asked by the Committee at the ABA Meeting whether Section 7 was being interpreted as 

a prohibition on habeas corpus proceedings responded: “I am sure that this will be challenged 

when and if this [Order] is employed,” concluding that he believed the courts would uphold 

the President’s authority. 


67


termination of a military commission’s substantive and procedural authority, 

but also to whether as a matter of fact the detainee came within 

the jurisdictional predicate of the Order, namely, membership in al Qaeda 

or the commission of or certain kinds of involvement in acts of international 

terrorism, or the harboring of persons coming within the former 

categories. While the Order purports to give the President authority to 

define such persons, the corresponding findings may themselves be subject 

to challenge in habeas corpus proceedings, equivalent to challenging probable 

cause for arrest. 80 This would have the result of placing before the federal 

District Courts the very issue—whether an individual is an al Qaeda member—that 

the Administration is seeking to keep from those courts. 

INTERNATIONAL LAW 

International law may also have a bearing on the Order. Common 

Article 3 of the four Geneva Conventions of 1949 establishes minimal 

standards even in armed conflicts not of an international nature, and a 

fortiori in international conflicts. Paragraph 1(d) prohibits persons who 

have laid down their arms from being subjected to “the passing of sentences 

and the carrying out of executions without previous judgment pronounced 

by a regularly constituted court, affording all of the judicial 

guarantees which are recognized as indispensable by civilized peoples.” 

The U.S. is a party to, and has ratified, the Geneva Conventions and 

in 1997, violations of Common Article 3 were added to the definition of 

“war crimes” for the purposes of the War Crimes Act of 1996. 81 Compliance 

with such international law of armed conflict is specifically required of the 

U.S. Armed Forces pursuant to Department of Defense’s Law of War Program. 82 

It follows that the international standard has become binding U.S. 

law. It would be unlawful for the President to authorize a procedure that 

resulted in the passing of sentences or carrying out of executions for persons 

subject to the conventions without such a regularly constituted court 

affording the judicial guarantees required by the Common Article 3. 83 

80. By comparison in the Quirin case, the defendants were acknowledged members of the 

German military and consequently, without dispute, found to be subject to the claimed 

jurisdiction of the 1942 commission. 

81. 18 U.S.C. § 2441, set forth in Appendix E. 

82. Department of Defense Directive 5100.77, DOD Law of War Program (Dec. 9, 1998). 

83. It is not within the purview of this Report to determine or analyze the crimes and/or 

violations of law, whether they are international or domestic, for which defendants subject to 

the Order may be tried. 


68


Pending issuance of the regulations for military commissions, it would 

be premature to speculate whether they would violate the applicable international 

standards (which, it should be noted, do not require trial by 

jury), U.S. rules of evidence or habeas corpus. In fact, it is has been reported 

that a Swiss military court has tried at least one war crime defendant 

from the former Yugoslavia and one from Rwanda, although on 

request a case was remanded to the International Court for the Former 

Yugoslavia. 84 It would, however, be highly questionable if the regulations 

did not require proof beyond a reasonable doubt (or an internationally 

acceptable alternative standard), public trials, defense right to choice of 

counsel or independent judges. 

Moreover, the United States certainly desires to avoid the adverse effects 

on its international prestige and foreign policy effectiveness which 

could potentially result from any erroneous convictions, or, worse, executions 

in haste of persons possibly misidentified or otherwise misjudged. 

Thus, in addition to legal and ethical concerns, this practical factor should 

urge upon the United States a scrupulous regard for the rule of law, including 

the establishment of fair procedures as the Order promises to do. 

Should the definitive procedures for such a fair trial as issued by the 

Secretary of Defense fall short of accepted international standards, and 

certainly until they are defined, it can be expected that many countries 

will decline to permit extradition of defendants for trial by military tribunals. 

This issue is separate from the death penalty issue, which already 

blocks or conditions extradition to the regular U.S. courts from many 

countries. Military commissions would, however, aggravate that issue to 

the extent that every irregular combatant becomes vulnerable to the death 

penalty by participation in a non-uniformed force. 

The U.S. has vigorously objected to incidents in which it believes 

that U.S. citizens have not been accorded minimal judicial rights. Recent 

examples include a secret trial for espionage in Russia; an execution by 

order of a special military court in Nigeria; and a terrorism conviction by 

a hooded military court in Peru. Obviously, it would not be productive in 

future incidents for the U.S. to be tarnished with a repudiation of the 

very civil rights for foreign nationals that it seeks to affirm for its own 

nationals abroad. 

84. Re G.G ., unpublished, Military Court of Cassation, Sept. 5, 1997, and Re N., unpublished, 

Military Court of Appeal, May 26, 2000, http://www.icrc.org/ihl-nat.nsf (visited Dec. 

3, 2001). The trial court and intermediate appellate courts were composed of military personnel. 

The defendants had civilian counsel. 


69


U.S. POLICY SHOULD BE TO PROMOTE RESPECT FOR 

THE RULE OF LAW, EVEN WHEN PROSECUTING 

THOSE WHO LACK SUCH RESPECT 

The principal justification of the Order is the paramount national 

interest in public safety and national security. In pursuit of that, it relies 

on mechanisms such as indefinite detention and secrecy (intended, it is 

said, to permit removal from the public realm of persons suspected of 

terrorist connections) and potentially secret trials (designed, it is said, to 

protect classified, or even classifiable, information). 

To the extent, however, that the Order seeks to “stack the deck” against 

defendants, it betrays uncertainty about the ability to obtain a conviction 

even in a secret, non-jury trial under existing law. 85 We believe this 

does a disservice to the entire process. It would permit indefinite detention 

without charges, much less trial, a tack likely to be used when is 

there is insufficient evidence to convict even by loose standards; and all 

without the possibility of judicial review. We do not believe that the full 

range of such procedures contemplated by the Order are necessary and, as 

a result, hope that the procedural regulations now being crafted do not 

take full advantage of the overbroad provisions of the Order. 

Further, as a practical matter, such overbroad provisions may well 

hamper the very swiftness with which the government understandably 

seeks to act in this crisis. Given (1) the constitutional and statutory questions 

about the validity of the Order with respect to persons placed in 

custody within the United States; (2) the availability to them of habeas 

corpus proceedings (including the likelihood that the courts hearing the 

petitions will go on to determine the validity of the substantive characterization 

of defendants by the President as members of al Qaeda or another 

class of persons covered by the Order); and (3) the likely appeals 

therefrom (notwithstanding the Order’s attempt to close them off), it is 

probable that the Administration will not achieve the quick and final 

resolution of cases against alleged terrorists that it seeks. Indeed, the defects 

in the Order—unless they are corrected by the procedures to come or 

otherwise—make it particularly vulnerable to attack. 86 

85. It has been argued widely that the use of military commissions is necessary to ensure 

convictions which may not be obtainable in other fora. See, e.g. ,Terrorists on Trial—II, Wall 

Street Journal Review and Outlook, December 4, 2001: “As recently as 1996, the Clinton 

Administration rejected Sudan’s offer to turn over Osama bin Laden because it didn’t think it 

had enough evidence to convict him in a criminal court. A military tribunal would certainly 

have come in handy then.” 

86. Another reason for concern is recognition of terrorists as potentially lawful belligerents. 


70


Further still, the Order suffers from the lack of a sunset mechanism. 

Examples of presidential use of military commissions—such as for the Lincoln 

assassins and the Quirin saboteurs—were pursuant to either one-time operations, 

as with the Lincoln assassination, or were issued with respect to 

a declared war that had a visible victory marker, i.e., the defeat of the 

enemy nation, and thus a clear end date. 87 Here, in an undeclared war, 

with the allies professing that the ‘new war on terrorism’ could last 50 

years against an undefined enemy beyond al Qaeda, 88 the almost total 

curtailment of liberties previously available to foreign nationals living in 

or visiting this country has no visible end in sight. 89 

It is of utmost regret that the 9/11 crisis has led the executive branch 

to give the impression that it would deny as to any class of persons almost 

the entirety of the procedural rights that have characterized this 

republic since 1789, apparently without any effort to find a workable 

alternative. Even if the Order is never used in practice, or if wiser heads 

prevail and it is used in a more reasonable manner than its language 

permits, the Order stands as an historic repudiation of the legal ideals on 

which the Nation was founded, potentially permitting a reversion to the 

worst practices of the Star Chamber, Inquisition and other notorious tribunals 

that put the interests of State or Church ahead of individual rights. 

Protestations that the Order is but “one tool available, and hasn’t been 

If, for example, some al Qaeda members wearing a uniform and bearing arms were captured 

while attacking a U.S. military installation (such as U.S.S. Cole or a Marine barracks or the 

Pentagon), they would be entitled to treatment as prisoners of war and not criminals once the 

U.S. government had declared the laws of war to be applicable. Most countries insist on 

treating terrorists as common criminals and go to great lengths to avoid application of the laws 

of war. See ,discussion of the Geneva definitions of armed conflict, infra . 

87. An end date has been recognized by the Supreme Court as important. See, e.g.,Duncan v. 

Kahanamoku, 327 U.S. 304 (1946), which struck down martial law in place in Hawaii so 

long after the invasion. There, the defendant had violated a military order covering some of 

the aspects of daily life, which order remained in place and whose violations were punishable 

only in military tribunals. In a concurring opinion, Chief Justice Stone noted that the bars and 

restaurants had reopened, and so the alleged crimes in question (essentially civilian ones), 

should have been referred to civil courts. 

88. See , War on Terror ‘May Last 50 Years’, BBCi, October 27, 2001, available at http:// 

news.bbc.co.uk/hi/english/uk/newsid_1623000/1623036.stm, visited December 4, 2001. 

89. See , Robinson O. Everett, Military Justice in the Armed Forces of the United States 

(Military Service Publishing Co. 1956): “If an undeclared war suffices to permit trial of a spy 

by court-martial or by military commission, a subsidiary issue is when that jurisdiction comes 

to an end. Had there been a declared war, military jurisdiction would continue until there 

was some formal proclamation of peace.” Id., at 30. 


71


used yet” 90 ring hollow when matched with the Order’s stunning scope, 

exclusive jurisdiction and total absence of review. 

These national domestic ideals should be reason enough to temper 

the Order in order to avoid a court finding it (or portions of it) unconstitutional, 

unlawful or unsupportable. Such tempering might be accomplished 

by its amendment, by Congressional action or, at the least and as 

has now apparently been promised, 91 by issuing balanced procedures to 

put it into effect. After reaching out to the entire world to embrace the 

American cause against terrorism as a fight for civilization on behalf of 

all nations, including such former adversaries as Iran and Syria in need of 

rule-of-law models, the Order effectively declares the second class status 

of foreign nationals under our laws by asserting our right to make preventive 

arrests of such persons on the determination of one person, detain 

them indefinitely without charge, prosecute them in secret and based 

on ad hoc rules, and then apply the death penalty when even less than all 

judges find them guilty of crimes not yet specified. After the nation’s 

demonstration of strength, resolve and resilience in the face of the unprecedented 

attack of 9/11, the Order threatens to becomes a confession 

of weakness, of the inability of the United States to utilize established 

means of prosecution and to marshal sufficient evidence to prove the 

complicity of al Qaeda in the attacks of 9/11. 

We believe that national security must be preserved, and that it must 

be done while giving as much respect as possible in a time of national 

emergency to the great American values—embodied in our laws of due 

process—which make this nation both a target and worth defending. Justice 

Rehnquist has acknowledged that in times of great national security, 

the laws, while “muted,” are not, in fact, silent—even during war. 92 We 

90. See, e.g., remarks by the General Counsel of the Department of Defense at the ABA Meeting. 

91. See, e.g., the remarks at the ABA Meeting of DoD General Counsel William Haynes; 

Senior Associate Counsel and Legal Advisor to the National Security Council John B. Bellinger 

III; and White House Counsel Alberto Gonzales. 

92. Rehnquist said: 

The courts, for their part, have largely reserved the decisions favoring civil liberties in 

wartime to be handed down after the war was over. Again, we see the truth in the 

maxim Inter Arma Silent Leges—in time of war the laws are silent. To lawyers and 

judges, this may seem a thoroughly undesirable state of affairs, but in the greater 

scheme of things it may be best for all concerned. The fact that judges are loath to 

strike down wartime measures while the war is going on is demonstrated both by our 

experience in the Civil War and in World War II. This fact represents something more 

than some sort of patriotic hysteria that holds the judiciary in its grip; it has been felt 


72


acknowledge that the balance is difficult, but also that the national will 

to seek such balance—not a clear tip of the scale—is not only essential, 

but the greatest show of strength the United States can offer. 

RECOMMENDATIONS AND ALTERNATIVES 

Validating the Order 

With respect to validating the Order, a Congressional declaration of 

war would most certainly put the full powers of the national government 

at work in the anti-terrorism war. Justice Jackson said famously in the 

Steel Seizure Case that when the President acts “pursuant to an express or 

implied authorization of Congress, his authority is at its maximum, for it 

includes all the he possess in his own right plus all that Congress can 

delegate … [and acts so taken] would be supported by the strongest of 

presumptions and the widest latitude of judicial interpretation …” 93 

Directed certainly against the Taliban government of Afghanistan, 

conceivably the declaration of war could also include (but should not be 

limited to) those named international terrorist organizations, notably al 

Qaeda, to whom that enemy state gave aid and comfort and even viceversa. 

President Jefferson, for example, was authorized by Congress in 

1802 (following skirmishes with the Barbary pirates in the Mediterranean) 

“to cause to be done all such other acts of precaution or hostility as the 

state of war will justify, and, may, in his opinion require,” finding, in 

fact, that a “state of war now exists.” 94 Al Qaeda may be analogous to 

pirates of old. 95 Such a Congressional declaration would lay to rest legal 

and even embraced by members of the Supreme Court who have championed civil 

liberty in peacetime. Witness Justice Hugo Black: he wrote the opinion for the Court 

upholding the forced relocation of Japanese Americans in 1944, but he also wrote 

the Court’s opinion striking down martial law in Hawaii two years later. While we 

would not want to subscribe to the full sweep of the Latin maxim—Inter Arma Silent 

Leges—in time of war the laws are silent, perhaps we can accept the proposition that 

though the laws are not silent in wartime, they speak with a muted voice. 

Rehnquist Remarks, supra. 

93. Steel Seizure Case, supra, at 635 (1952) (Jackson, J., concurring). 

94. Quoted in Abraham Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 

(Ballinger 1976), at 215. 

95. See, e.g., 33 U.S.C. § 381: “The President is authorized to employ so many of the public 

armed vessels as in his judgment the service may require, with suitable instructions to the 

commanders thereof, in protecting the merchant vessels of the United States and their crews 

from piratical aggressions and depredations.” 


73


concerns with respect to both the President’s authority to establish military 

commissions in a time of undeclared war, since it would now be declared, 

and also to the status of those persons related to such enemy organizations, 

since an enemy will have been defined. 

However, a declaration of war carries with it enormous implications 

for the conduct of daily life in the United States. To declare war solely, or 

even primarily, to rectify the legal problems with the underpinnings of 

the President’s desire to utilize military commissions to try without traditional 

due process alien civilians arrested in the United States seems to us 

too radical a solution. Nor would a declaration of war resolve the constitutional 

issues relating to domestic use of military commissions in a war 

for crimes not uniquely violative of the law of war, issues that arose in the 

Civil War in the context of the Milligan case. 

Alternatives to Military Commissions for Prosecution 

The analysis above demonstrates that the Constitution requires that 

due process—including jury trials—be given to defendants arrested or tried 

in the United States for civilian-style crimes that are not violations of the 

laws of war. Thus, for these defendants, whether they be al Qaeda conspirators 

or merely harborers, Article 3 federal District Courts must be the 

forum for their prosecution. 

With respect to those persons captured abroad in combat or for otherwise 

violating the traditional laws of war, the Order’s reliance on military 

commissions is not the preferred choice. The better approach is to 

use an alternative means of prosecution. 

A menu of alternatives is available to the national government to 

permit effective prosecution of alleged terrorists and their supporters found 

in the United States and thereby avoid the substantive and procedural 

defects in the Order. The choices include trials in federal District Courts, 

international tribunals or even UCMJ courts martial. Each has its advantages 

and its disadvantages with respect to the goal of swift and fair prosecution 

within the rule of law. 

Other goals which some commentators now suggest are paramount 

and thus argue for the practical use of commissions—e.g., the need to 

avoid the requirement that U.S. troops in combat give Miranda warnings 

to captured al Qaeda or Taliban; 96 courthouse, judge and juror protection; 

revelations of intelligence through open trials; the slow pace of tri- 

96. This is a particularly specious criticism, since there is no assertion that the Fifth Amendment 

applies in war to foreign combatants captured and tried abroad. 


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als; and the ability to admit into evidence under loose rules material that 

otherwise could not be admitted in federal District Court or even courts 

martial trials, such as hearsay—seem to us important but far less so than 

the larger goal referred to above (particularly since to a large extent they 

can be addressed). One need only consider the impact on the development 

of international humanitarian law that the conduct and decisions 

of the Nuremberg Tribunal had—laying the groundwork for the principle 

of individual responsibility for wrongful state acts through its process of 

open trials, uniform procedures modeled primarily on the British and 

American systems, and careful, written decisions—to understand that while 

obtaining a guilty verdict is important, it is not all-important. 

International Tribunals 

The use of international tribunals, perhaps one created for the purpose 

of this prosecution, is possible. Nuremberg was certainly a precedent. 

Such a tribunal, however, presents problems of international representation 

on the bench, not least because of the divergence of views with our 

allies over the death penalty. Due to this concern, they would, in all likelihood, 

be the only courts to which certain countries would transfer defendants 

within their custody given the political and cultural realities. 97 

Further, to avoid the spectacle of Judeo-Christian civilization sitting 

combined in judgment on the Muslim civilization—an image some say 

Bin Laden seeks to foster—participation by Islamic judges would be necessary. 

At that point, developing rules of procedure gets complicated. Further still, 

experience with recent international tribunals shows these entities to be 

truly slow in action, as well as expensive. In such tribunals, juries would 

not be a concern, but, even given the good faith of most judges, the protection 

of classified information would have to be assumed to be impossible. 

The International Criminal Court (“ICC”), were it already established, 

would be a likely tribunal for trying cases involving foreign defendants 

accused of violating either the international law of armed conflict or crimes 

against humanity. 98 

97. Spain—apparently holding important members of al Qaeda who, the investigating judge 

there claims, had prior knowledge of the 9/11 attacks—has already said it will not extradite to 

the US because of the possibility of application of the death penalty here. “The European 

Union already has a policy stating that no member nation must extradite a suspect to a country 

unless it gets believable assurances that the death penalty will not be asked for or applied.” 

Spain Sets Hurdle for Extraditions, New York Times on the Web, November 24, 2001. 

98. Rome Statute Of the International Criminal Court, July 17 1998, UN Doc.A/CONF.183/ 

9* (1998) (opened for signature, July 17, 1998). 


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Significantly, crimes against humanity under Article 7 of the Rome 

Statute are not premised upon the existence of an “armed conflict” within 

the meaning of the Geneva Conventions and Protocols, but instead on 

the occurrence of any of the listed acts directed toward a civilian population, 

provided they are “widespread and systematic.” Thus, this section 

would include within its subject matter jurisdiction the terrorist acts of 9/ 

11 and others discovered in the course of the anti-terror campaign. The 

ICC would be especially useful for the trial of defendants in the custody 

of countries that might refuse to extradite defendants to the United States, 

whether for their own domestic political reasons or based on objections 

to capital punishment or to the procedures of military commissions. However, 

the ICC is not an option at this time because the Court is not yet established, 

due in large part to opposition to the statute by the United States. 

Federal District Courts 

Time-honored criminal proceedings in the federal District Courts would 

be the tried and true solution, not least because it has been proven to 

work with respect to prosecuting terrorists, including members of al Qaeda. 

In fact, the federal government has already determined to take the first 

steps toward prosecuting Bin Laden in federal District Court by seeking— 

and obtaining—his indictment in the Southern District of New York. 

However, the federal District Courts may be less adapted to trying enemy 

combatants (lawful or unlawful) detained in armed conflict. 

The concerns that such trials are slow, that jurors would refuse to 

serve, or that there would be so many defendants that the work would 

never be done do not strike us as persuasive. These courts are, in fact, 

contemplated for use in these circumstances. They have not only convicted 

al Qaeda members but also have successfully tried and convicted a 

plethora of serious spies in the service of foreign powers at both the CIA 

and FBI in recent years. 

It should be recalled that the Constitution itself was conceived and 

drafted in a time of great concern regarding national security, and these 

issues were never far from the minds of the Framers. “American courts 

have tried international criminals who have violated the law of nations— 

including pirates and slave traders—since the beginning of the nation. 

We have convicted hijackers, terrorists and drug smugglers (including 

Panama’s Manuel Noriega, who surrendered to American soldiers after 

extended military operations).” 99 

99. Harold Koh, We Have the Right Courts for Bin Laden, New York Times, November 23, 2001. 


76


However, the circumstances of the 9/11 attacks would admittedly present 

exceptional difficulties in administering a fair jury trial where hardly any 

American citizen has not been touched by the events in controversy. Further, 

despite established procedures to control confidential information, 100 

such procedures relate primarily to pre-trial procedures and are not impenetrable 

for determined wrongdoers. Nonetheless, while we believe these 

impediments could be overcome for the purposes of providing the required 

civilian trials in U.S. District Courts, they are more difficult to overcome 

for purposes of providing a law of war trial of a foreign combatant. 

Courts Martial Under the UCMJ 

For use abroad, the alternative we find most acceptable to the military 

commissions proposed by the Order combines most of the benefits 

sought with fewest of the potential risks: court martial under the UCMJ. 

White House Counsel Alberto Gonzales described the long, successful and 

professional history of American military justice this way: “The American 

military justice system is the finest in the world, with longstanding traditions 

of forbidding command influence on proceedings, of providing zealous 

advocacy by competent defense counsel, and of procedural fairness.” 101 

Unfortunately, Judge Gonzales improperly ascribed these attributes to military 

commissions when they apply instead to courts martial, a very different 

kind of tribunal. 

United States military courts martial, as described above, combine an 

essentially non-jury trial in a secure environment—a naval vessel or military 

base—pursuant to established rules of procedure, evidence and appeal 

based on written records. The due process provided in these courts is 

genuine, despite the old adage about military justice and military music, 

even while the trial process is made more efficient than in civilian courts. 

A criminal trial in a court martial setting is far quicker than a comparable 

one in a federal District Court. Moreover, not only are there provisions 

for presenting secret material in camera, the setting on a protected military 

installation would make such information all the more secure. 102 In 

100. See the Classified Information Procedures Act of 1980, 18 U.S.C. App §§1-16. 

101. Gonzales Op-Ed, supra. 

102. The concern with respect to the issue that a civilian lawyer who is not cleared to see such 

information might be hampered in preparing a defense may be addressed either by the 

clearance of civilian counsel or by the provision of cleared military counsel in those cases 

where such sensitive material is required to be introduced. It is expected that the Association 

of the Bar of the City of New York will soon comment upon First Amendment concerns 

arising from the Order and the role of the media in proceedings thereunder. 


77


any case, a public trial—as was given even to the worst members of the 

Third Reich—is desirable to demonstrate both the fairness of our system 

and our confidence that using it is not a sign of weakness but of strength. 

A general court martial of persons arrested in the United States would, 

however, require statutory amendment to confer upon such a court clear 

jurisdiction to try cases not only under the present UCMJ, but also—to 

the extent that there is any doubt—under the international law of armed 

conflict, as well as such other laws as Congress may determine to apply. 

Absent Congressional action, such a court could be assured of constitutional 

validity for trials of alien defendants only outside the U.S. or of 

offenders within the United States for offenses within the traditional law 

of war. 

Military Commissions 

For the reasons explained in this Report, we do not recommend the 

use of military commissions, particularly as described in the Order, to 

prosecute persons arrested in the United States for acts which are not 

traditional violations of the laws of war. They are, however, a potential 

means of dealing with aliens arrested and tried abroad, but only, in our 

view, with procedures consistent with the rule of law. 

One possible variation on the commissions contemplated by the Order 

would be military commissions convened under U.S. law and administration 

but including foreign jurists on the model of the post World 

War II war crimes commissions, using procedures consistent with international 

standards (though not necessarily the same as UCMJ courts 

martial). This would make them somewhat akin to purely international 

tribunals but under greater U.S. control as they would still be U.S. military 

commissions. However, lack of the right to a jury trial alone would 

prevent such hybrid commissions from adjudicating cases involving 

aliens in the U.S. or U.S. citizens, anywhere, not tried for law of war 

offenses. 

It is recommended in any case that at the appropriate time—which 

we note is not during a period of national emergency and armed conflict—Congress 

examine the use of military commissions for the purpose 

of clarifying statutory authority with respect to their use generally. The 

various articles of the UCMJ that contemplate military commissions 

could be supplemented by one which provides clear authority for their 

use and the circumstances in which the President may so establish them. 

Importantly, Congress could at that time provide the guidelines and framework 

for the ultimate procedures—e.g., standards of proof, nature of evi- 


78


dence—the President would issue as Commander-in-Chief for trials under 

such commissions. 

IN SUMMATION 

Viewing these alternatives on a spectrum of their qualities would show 

the military commission at the top with respect to U.S. control of confidential 

information and, correspondingly, at the bottom with respect to 

international credibility and procedural fairness, while an international 

tribunal would be at the reverse end of that spectrum, at least with respect 

to international credibility. Federal District Courts and UCMJ courts martial 

would be somewhere in the middle, with the District Courts having 

relatively higher credibility, lower control of confidential information, a 

slow pace and a high level of due process, and UCMJ courts martial in a 

somewhat reverse position. 

Given the most likely circumstances here—prosecuting members and 

supporters of international terrorist organizations found and arrested outside 

the United States for offenses against the laws of war—we believe the 

choice of courts martial under the Uniform Code of Military Justice is a 

reasonable one, and certainly preferable to military commissions, where 

national security considerations truly require extraordinary measures while 

basic rights of due process still demand respect. With respect to persons 

arrested within the United States, Article III courts must constitutionally 

be used for offenders and offenses not involving the laws of war. 

Moreover, UCMJ courts martial substantially meet the security needs 

that are most acute for the type of defendants likely to be apprehended 

abroad in a shooting war, including the foreign based command and 

control of al Qaeda. The domestic courts are, or can be made, sufficiently 

secure for the civilian type of defendants likely to be apprehended in the 

U.S., whether for committing acts of violence, or for various supporting 

activities (e.g., “harboring” or even stealing in order to raise cash) which 

are only questionably subject to the laws of war and in any case pose less 

severe security issues. In order to avoid the uncertainty inherent in applying 

the traditional definitions of the laws of war to contemporary circumstances, 

Congress should consider enacting a statutory definition 

appropriate to these circumstances. 

In the last analysis, it is the behavior of a nation in a time of crisis 

that determines its greatness. Utilizing the historically fair, widely admired 

military justice system to prosecute abroad law of war offenses at this 

point in time where and when it is most appropriate—complete as this 


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system is with rights and remedies available to defendants—while using 

Article III courts domestically, reflects a confidence in this nation’s unique 

ability to balance the necessary expediency required at this moment with 

the deliberate fairness expected of it always. 

December 2001 


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The Committee 

on Military Affairs and Justice 

Stephen J. Shapiro, Chair* 

Patricia Murphy, Secretary 

Nicholas Defabrizio 

Ralph Dengler 

Thomas Elwood 

Melissa Epstein* 

Miles P. Fischer* 

Richard Hartzman* 

Matt Hawkins 

Paul Kerian 

Joseph Obrien 

Irvin Rosenthal 

Alice Slater 

Richard Yeskoo 

* Primary authors of Report 


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APPENDIX A 

November 13, 2001 Military Order 

Issued by President George W. Bush 

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against 

Terrorism 

By the authority vested in me as President and as Commander in Chief of 

the Armed Forces of the United States by the Constitution and the laws of 

the United States of America, including the Authorization for Use of Military 

Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 

and 836 of title 10, United States Code, it is hereby ordered as follows: 

Section 1. Findings. 

(a) International terrorists, including members of al Qaida, have carried 

out attacks on United States diplomatic and military personnel and facilities 

abroad and on citizens and property within the United States on a 

scale that has created a state of armed conflict that requires the use of the 

United States Armed Forces. 

(b) In light of grave acts of terrorism and threats of terrorism, including 

the terrorist attacks on September 11, 2001, on the headquarters of the 

United States Department of Defense in the national capital region, on 

the World Trade Center in New York, and on civilian aircraft such as in 

Pennsylvania, I proclaimed a national emergency on September 14, 2001 

(Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist 

Attacks). 

(c) Individuals acting alone and in concert involved in international terrorism 

possess both the capability and the intention to undertake further 

terrorist attacks against the United States that, if not detected and prevented, 

will cause mass deaths, mass injuries, and massive destruction of 

property, and may place at risk the continuity of the operations of the 

United States Government. 

(d) The ability of the United States to protect the United States and its 

citizens, and to help its allies and other cooperating nations protect their 

nations and their citizens, from such further terrorist attacks depends in 

significant part upon using the United States Armed Forces to identify 

terrorists and those who support them, to disrupt their activities, and to 

eliminate their ability to conduct or support such attacks. 


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(e) To protect the United States and its citizens, and for the effective conduct 

of military operations and prevention of terrorist attacks, it is necessary 

for individuals subject to this order pursuant to section 2 hereof to 

be detained, and, when tried, to be tried for violations of the laws of war 

and other applicable laws by military tribunals. 

(f) Given the danger to the safety of the United States and the nature of 

international terrorism, and to the extent provided by and under this 

order, I find consistent with section 836 of title 10, United States Code, 

that it is not practicable to apply in military commissions under this order 

the principles of law and the rules of evidence generally recognized in 

the trial of criminal cases in the United States district courts. 

(g) Having fully considered the magnitude of the potential deaths, injuries, 

and property destruction that would result from potential acts of 

terrorism against the United States, and the probability that such acts 

will occur, I have determined that an extraordinary emergency exists for 

national defense purposes, that this emergency constitutes an urgent and 

compelling government interest, and that issuance of this order is necessary 

to meet the emergency. 

Sec. 2. Definition and Policy. 

(a) The term “individual subject to this order” shall mean any individual 

who is not a United States citizen with respect to whom I determine from 

time to time in writing that: 

(1) there is reason to believe that such individual, at the relevant times, 

(i) is or was a member of the organization known as al Qaida; 

(ii) has engaged in, aided or abetted, or conspired to commit, acts of 

international terrorism, or acts in preparation therefor, that have caused, 

threaten to cause, or have as their aim to cause, injury to or adverse effects 

on the United States, its citizens, national security, foreign policy, or 

economy; or 

(iii) has knowingly harbored one or more individuals described in subparagraphs 

(i) or (ii) of subsection 2(a)(1) of this order; and 

(2) it is in the interest of the United States that such individual be subject 

to this order. 

(b) It is the policy of the United States that the Secretary of Defense shall 

take all necessary measures to ensure that any individual subject to this 

order is detained in accordance with section 3, and, if the individual is to 

be tried, that such individual is tried only in accordance with section 4. 

(c) It is further the policy of the United States that any individual subject 

to this order who is not already under the control of the Secretary of 


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Defense but who is under the control of any other officer or agent of the 

United States or any State shall, upon delivery of a copy of such written 

determination to such officer or agent, forthwith be placed under the 

control of the Secretary of Defense. 

Sec. 3. Detention Authority of the Secretary of Defense. Any individual 

subject to this order shall be— 

(a) detained at an appropriate location designated by the Secretary of 

Defense outside or within the United States; 

(b) treated humanely, without any adverse distinction based on race, color, 

religion, gender, birth, wealth, or any similar criteria; 

(c) afforded adequate food, drinking water, shelter, clothing, and medical 

treatment; 

(d) allowed the free exercise of religion consistent with the requirements 

of such detention; and 

(e) detained in accordance with such other conditions as the Secretary of 

Defense may prescribe. 

Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals 

Subject to this Order. 

(a) Any individual subject to this order shall, when tried, be tried by military 

commission for any and all offenses triable by military commission 

that such individual is alleged to have committed, and may be punished 

in accordance with the penalties provided under applicable law, including 

life imprisonment or death. 

(b) As a military function and in light of the findings in section 1, including 

subsection (f) thereof, the Secretary of Defense shall issue such 

orders and regulations, including orders for the appointment of one or 

more military commissions, as may be necessary to carry out subsection 

(a) of this section. 

(c) Orders and regulations issued under subsection (b) of this section shall 

include, but not be limited to, rules for the conduct of the proceedings of 

military commissions, including pretrial, trial, and post-trial procedures, 

modes of proof, issuance of process, and qualifications of attorneys, which 

shall at a minimum provide for— 

(1) military commissions to sit at any time and any place, consistent with 

such guidance regarding time and place as the Secretary of Defense may 

provide; 

(2) a full and fair trial, with the military commission sitting as the triers 

of both fact and law; 


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(3) admission of such evidence as would, in the opinion of the presiding 

officer of the military commission (or instead, if any other member of the 

commission so requests at the time the presiding officer renders that opinion, 

the opinion of the commission rendered at that time by a majority of the 

commission), have probative value to a reasonable person; 

(4) in a manner consistent with the protection of information classified 

or classifiable under Executive Order 12958 of April 17, 1995, as amended, 

or any successor Executive Order, protected by statute or rule from unauthorized 

disclosure, or otherwise protected by law, 

(A) the handling of, admission into evidence of, and access to 

materials and information, and 

(B) the conduct, closure of, and access to proceedings; 

(5) conduct of the prosecution by one or more attorneys designated by 

the Secretary of Defense and conduct of the defense by attorneys for the 

individual subject to this order; 

(6) conviction only upon the concurrence of two-thirds of the members 

of the commission present at the time of the vote, a majority being present; 

(7) sentencing only upon the concurrence of two-thirds of the members 

of the commission present at the time of the vote, a majority being present; 

and 

(8) submission of the record of the trial, including any conviction or 

sentence, for review and final decision by me or by the Secretary of Defense 

if so designated by me for that purpose. 

Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense 

Departments, agencies, entities, and officers of the United States shall, to 

the maximum extent permitted by law, provide to the Secretary of Defense 

such assistance as he may request to implement this order. 

Sec. 6. Additional Authorities of the Secretary of Defense 

(a) As a military function and in light of the findings in section 1, the 

Secretary of Defense shall issue such orders and regulations as may be 

necessary to carry out any of the provisions of this order. 

(b) The Secretary of Defense may perform any of his functions or duties, 

and may exercise any of the powers provided to him under this order 

(other than under section 4(c)(8) hereof) in accordance with section 113(d) 

of title 10, United States Code. 

Sec. 7. Relationship to Other Law and Forums 

(a) Nothing in this order shall be construed to— 


85


(1) authorize the disclosure of state secrets to any person not otherwise 

authorized to have access to them; 

(2) limit the authority of the President as Commander in Chief of the 

Armed Forces or the power of the President to grant reprieves and pardons; 

or 

(3) limit the lawful authority of the Secretary of Defense, any military 

commander, or any other officer or agent of the United States or of any 

State to detain or try any person who is not an individual subject to this 

order. 

(b) With respect to any individual subject to this order— 

(1) military tribunals shall have exclusive jurisdiction with respect to offenses 

by the individual; and 

(2) the individual shall not be privileged to seek any remedy or maintain 

any proceeding, directly or indirectly, or to have any such remedy or proceeding 

sought on the individual’s behalf, in (i) any court of the United 

States, or any State thereof, (ii) any court of any foreign nation, or 

(iii) any international tribunal. 

(c) This order is not intended to and does not create any right, benefit, or 

privilege, substantive or procedural, enforceable at law or equity by any 

party, against the United States, its departments, agencies, or other entities, 

its officers or employees, or any other person. 

(d) For purposes of this order, the term “State” includes any State, district, 

territory, or possession of the United States. 

(e) I reserve the authority to direct the Secretary of Defense, at any time 

hereafter, to transfer to a governmental authority control of any individual 

subject to this order. Nothing in this order shall be construed to 

limit the authority of any such governmental authority to prosecute any 

individual for whom control is transferred. 

Sec. 8. Publication 

This order shall be published in the Federal Register. 

GEORGE W. BUSH 

THE WHITE HOUSE, 

November 13, 2001. 


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APPENDIX B 

1942 Roosevelt Order 

Proc. No. 2561, July 2, 1942, 7 F.R. 5101, 56 Stat. 1964 

WHEREAS the safety of the United States demands that all enemies who 

have entered upon the territory of the United States as part of an invasion 

or predatory incursion, or who have entered in order to commit 

sabotage, espionage or other hostile or warlike acts, should be promptly 

tried in accordance with the law of war; 

NOW, THEREFORE, I, Franklin D. Roosevelt, President of the United States 

of America and Commander in Chief of the Army and Navy of the United 

States, by virtue of the authority vested in me by the Constitution and 

the statutes of the United States, do hereby proclaim that all persons who 

are subjects, citizens or residents of any nation at war with the United 

States or who give obedience to or act under the direction of any such 

nation, and who during time of war enter or attempt to enter the United 

States or any territory or possession thereof, through coastal or boundary 

defenses, and are charged with committing or attempting or preparing to 

commit sabotage, espionage, hostile or warlike acts, or violations of the 

law of war, shall be subject to the law of war and to the jurisdiction of 

military tribunals; and that such persons shall not be privileged to seek 

any remedy or maintain any proceeding directly or indirectly, or to have 

any such remedy or proceeding sought on their behalf, in the courts of 

the United States, or of its States, territories, and possessions, except under 

such regulations as the Attorney General, with the approval of the 

Secretary of War, may from time to time prescribe. 


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APPENDIX C 

Congressional Resolution Authorization for Use of Military Force 

One Hundred Seventh Congress 

of the United States of America 

AT THE FIRST SESSION 

Begun and held at the City of Washington on Wednesday, 

the third day of January, two thousand and one 

Joint Resolution 

To authorize the use of United States Armed Forces against those responsible 

for the recent attacks launched against the United States. 

Whereas, on September 11, 2001, acts of treacherous violence were committed 

against the United States and its citizens; and 

Whereas, such acts render it both necessary and appropriate that the United 

States exercise its rights to self-defense and to protect United 

States citizens both at home and abroad; and 

Whereas, in light of the threat to the national security and foreign policy 

of the United States posed by these grave acts of violence; and 

Whereas, such acts continue to pose an unusual and extraordinary threat 

to the national security and foreign policy of the United States; and 

Whereas, the President has authority under the Constitution to take action 

to deter and prevent acts of international terrorism against the 

United States: Now, therefore, be it 

Resolved by the Senate and House of Representatives of the United States of 

America in Congress assembled, 


88


SECTION 1. SHORT TITLE. 

This joint resolution may be cited as the ‘Authorization for Use of 

Military Force’. 

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. 

(a) IN GENERAL- That the President is authorized to use all necessary 

and appropriate force against those nations, organizations, 

or persons he determines planned, authorized, committed, 

or aided the terrorist attacks that occurred on September 

11, 2001, or harbored such organizations or persons, in order 

to prevent any future acts of international terrorism against 

the United States by such nations, organizations or persons. 

(b) War Powers Resolution Requirements- 

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent 

with section 8(a)(1) of the War Powers Resolution, the 

Congress declares that this section is intended to constitute 

specific statutory authorization within the meaning 

of section 5(b) of the War Powers Resolution. 

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing 

in this resolution supercedes any requirement of the War 

Powers Resolution. 

Speaker of the House of Representatives. 

Vice President of the United States and 

President of the Senate. 


89


APPENDIX D 

USA Patriot Act of 2001 (in part) 

Public Law No: 107-56, October 26, 2001. 

SEC. 412. MANDATORY DETENTION OF SUSPECTED TERROR- 

ISTS; HABEAS CORPUS; JUDICIAL REVIEW. 

(a) IN GENERAL- The Immigration and Nationality Act (8 U.S.C. 

1101 et seq.) is amended by inserting after section 236 the following: 

“SEC. 236A. (a) DETENTION OF TERRORIST ALIENS- 

‘(1) CUSTODY—The Attorney General shall take into custody 

any alien who is certified under paragraph (3). 

‘(2) RELEASE—Except as provided in paragraphs (5) and (6), the 

Attorney General shall maintain custody of such an alien until 

the alien is removed from the United States. Except as provided 

in paragraph (6), such custody shall be maintained irrespective 

of any relief from removal for which the alien may be eligible, 

or any relief from removal granted the alien, until the Attorney 

General determines that the alien is no longer an alien who 

may be certified under paragraph (3). If the alien is finally determined 

not to be removable, detention pursuant to this subsection 

shall terminate. 

‘(3) CERTIFICATION—The Attorney General may certify an alien 

under this paragraph if the Attorney General has reasonable 

grounds to believe that the alien— 

‘(A) is described in section 212(a)(3)(A)(i), 212(a)(3)(A)(iii), 

212(a)(3)(B), 237(a)(4)(A)(i), 237(a)(4)(A)(iii), or 237(a)(4)(B); 

or 

‘(B) is engaged in any other activity that endangers the national 

security of the United States. 


90


‘(4) NONDELEGATION- The Attorney General may delegate the 

authority provided under paragraph (3) only to the Deputy Attorney 

General. The Deputy Attorney General may not delegate 

such authority. 

‘(5) COMMENCEMENT OF PROCEEDINGS- The Attorney General 

shall place an alien detained under paragraph (1) in removal 

proceedings, or shall charge the alien with a criminal 

offense, not later than 7 days after the commencement of such 

detention. If the requirement of the preceding sentence is not 

satisfied, the Attorney General shall release the alien. 

‘(6) LIMITATION ON INDEFINITE DETENTION- An alien detained 

solely under paragraph (1) who has not been removed under 

section 241(a)(1)(A), and whose removal is unlikely in the reasonably 

foreseeable future, may be detained for additional periods 

of up to six months only if the release of the alien will 

threaten the national security of the United States or the safety 

of the community or any person. 

‘(7) REVIEW OF CERTIFICATION- The Attorney General shall 

review the certification made under paragraph (3) every 6 months. 

If the Attorney General determines, in the Attorney General’s 

discretion, that the certification should be revoked, the alien 

may be released on such conditions as the Attorney General 

deems appropriate, unless such release is otherwise prohibited 

by law. The alien may request each 6 months in writing that 

the Attorney General reconsider the certification and may submit 

documents or other evidence in support of that request. 

‘(b) HABEAS CORPUS AND JUDICIAL REVIEW- 

‘(1) IN GENERAL- Judicial review of any action or decision relating 

to this section (including judicial review of the merits of 

a determination made under subsection (a)(3) or (a)(6)) is available 

exclusively in habeas corpus proceedings consistent with this 

subsection. Except as provided in the preceding sentence, no 

court shall have jurisdiction to review, by habeas corpus petition 

or otherwise, any such action or decision. 

‘(2) APPLICATION- 


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‘(A) IN GENERAL- Notwithstanding any other provision of law, 

including section 2241(a) of title 28, United States Code, habeas 

corpus proceedings described in paragraph (1) may be initiated 

only by an application filed with— 

‘(i) the Supreme Court; 

‘(ii) any justice of the Supreme Court; 

‘(iii) any circuit judge of the United States Court of Appeals for 

the District of Columbia Circuit; or 

‘(iv) any district court otherwise having jurisdiction to entertain 

it. 

‘(B) APPLICATION TRANSFER- Section 2241(b) of title 28, United 

States Code, shall apply to an application for a writ of habeas 

corpus described in subparagraph (A). 

‘(3) APPEALS- Notwithstanding any other provision of law, including 

section 2253 of title 28, in habeas corpus proceedings 

described in paragraph (1) before a circuit or district judge, the 

final order shall be subject to review, on appeal, by the United 

States Court of Appeals for the District of Columbia Circuit. 

There shall be no right of appeal in such proceedings to any 

other circuit court of appeals. 

‘(4) RULE OF DECISION- The law applied by the Supreme Court 

and the United States Court of Appeals for the District of Columbia 

Circuit shall be regarded as the rule of decision in habeas 

corpus proceedings described in paragraph (1).” 


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APPENDIX E 

War Crimes Act: 18 U.S.C. 2441(Sec. 2441, War crimes) 

(a) Offense. - Whoever, whether inside or outside the United 

States, commits a war crime, in any of the circumstances 

described in subsection (b), shall be fined under this title 

or imprisoned for life or any term of years, or both, and if 

death results to the victim, shall also be subject to the penalty 

of death. 

(b) Circumstances. - The circumstances referred to in subsection 

(a) are that the person committing such war crime 

or the victim of such war crime is a member of the Armed 

Forces of the United States or a national of the United 

States (as defined in section 101 of the Immigration and 

Nationality Act). 

(c) Definition. - As used in this section the term ‘’war crime’’ 

means any conduct - 

(1) defined as a grave breach in any of the international 

conventions signed at Geneva 12 August 1949, or 

any protocol to such convention to which the United States 

is a party; 

(2) prohibited by Article 23, 25, 27, or 28 of the Annex 

to the Hague Convention IV, Respecting the Laws and 

Customs of War on Land, signed 18 October 1907; 

(3) which constitutes a violation of common Article 3 

of the international conventions signed at Geneva, 12 August 

1949, or any protocol to such convention to which 

the United States is a party and which deals with noninternational 

armed conflict; or 

(4) of a person who, in relation to an armed conflict 


93


and contrary to the provisions of the Protocol on Prohibitions 

or Restrictions on the Use of Mines, Booby-Traps and Other 

Devices as amended at Geneva on 3 May 1996 (Protocol II as 

amended on 3 May 1996), when the United States is a party to 

such Protocol, willfully kills or causes serious injury to civilians. 


94

The Press and the Public’s 

First Amendment Right of 

Access to Terrorism on Trial: 

A Position Paper 


Communications and Media Law 

CONTENTS 

I. Introduction 

II. 

In Times of War Throughout American History, Open Trials 

Have Had a Salutary Effect on Justice and Closure Has 

Bred Corruption and Contempt 

A. The Boston Massacre of 1770 

B. Civil War Military Tribunals 

C. World War II—1942 Nazi Saboteurs case: 

Secret and Corrupt 

D. World War II—The 1946 Trial of Tomoyuki Yamashita 

E. Nuremburg 

III. The First Amendment Right of Access to Criminal 

Proceedings 

A. First Amendment Right of Access to Criminal 

Trials in Article III Courts 

96 

101 

101 

106 

111 

118 

120 

122 

122 


95

R I G H T O F A C C E S S T O T E R R O R I S M O N T R I A L 

B. First Amendment Right of Access to Courts-Martial 

IV. Experience in Terrorist and National Security Prosecutions 

A. Grunden & Lonetree—U.S. Courts-Martial 

B. Hijackings 

C. United States v. Noriega 

D. Timothy McVeigh 

E. 1993 World Trade Center Bombing Cases 

F. Al Qaeda I 

V. Executive Powers Do Not Trump the Right of Access 

A. The President’s Article II Power As Commander 

in Chief During Wartime 

B. Holding Military Tribunals Overseas Should 

Not Negate Public Right of Access 

VI. Special Procedures in Cases Involving Classified and 

National Security Information 

A. The Operation of CIPA 

B. Access Under CIPA 

VII. Conclusion 

126 

129 

130 

133 

135 

137 

140 

145 

148 

148 

156 

158 

159 

163 

167 


96

C O M M U N I C A T I O N S A N D M E D I A L A W 

The Press and the Public’s 

First Amendment Right of 

Access to Terrorism on Trial: 

A Position Paper 



I. INTRODUCTION 

After the Bush Administration’s declaration of war on terrorism, following 

the September 11, 2001 attacks on the World Trade Center and 

Pentagon, the President issued a military order on November 13, 2001 

regarding “Detention, Treatment, and Trial of Certain Non-Citizens.” The 

order called for the creation of military tribunals, which would try noncitizens 

who allegedly violated the “laws of war” without the same protections 

afforded defendants in Article III courts and U.S. Military courtsmartial. 

Following the President’s military order, newspaper articles and 

television talk shows were filled with debate and criticism about the propriety 

of using military tribunals rather than federal courts established 

under Article III of the Constitution to try non-citizen terrorists. 1 For a 

1. See George Lardner Jr. & Peter Slevin, Military May Try Terrorism Cases; Bush Cites 

‘Emergency,’ W ASH.POST, Nov. 14, 2001, at A1; Elizabeth Bumiller and David Johnston, Bush 

Sets Option of Military Trials in Terrorist Cases, N.Y. T IMES, Nov. 14, 2001, at A1; Naftali 


97


while the Bush Administration pressed ahead with its plan. The Department 

of Defense created draft regulations implementing the military order 

and unofficially released their contents to the press to measure the 

public’s reaction. 2 Now, two months later, the regulations themselves have 

not been issued nor has the Bush Administration commented on whether 

regulations might be issued. Instead, to date all indictments against suspected 

terrorists and enemies of war have been brought in Article III courts. 

Whether or not non-citizen terrorists are tried in military tribunals, 

the question of whether such tribunals must be open under the First Amendment 

right of access is crucial. Put precisely, if tribunals are held, will the 

public—and the press—be able to observe the tribunal proceedings just as 

they can in Article III courts and courts-martial 

Military tribunals have been used periodically throughout United States 

history, and the Supreme Court has been asked to consider their constitutionality 

and jurisdiction on a number of occasions. But no court has 

considered whether the press and public have a First Amendment right of 

access to proceedings in military tribunals, as they have for proceedings 

in Article III courts and U.S. Military courts-martial. That may be because 

the last military tribunal convened in this country was in 1946, long before 

the United States Supreme Court recognized the right of access to 

criminal proceedings. Or, it may be because military tribunals have traditionally 

been used in the most heated and uneasy times of war when 

there was little time to consider the First Amendment rights of the press 

and public. With very little fanfare and without any delay, military tribunals 

swiftly dealt with violators of the laws of war. 

Whether terrorists are tried in military tribunals or Article III courts, 

thus far secrecy seems to be an important goal in the Administration’s 

legal strategy. Since the September 11 th attacks, judges have closed their 

courtrooms and sealed evidence during grand jury proceedings, subpoena 

applications and other pre-indictment proceedings when the Government 

has raised “national security” concerns. 3 Even determining whether a matter 

Bendavid, Bush Oks Terror Tribunals,C HI.TRIB., Nov. 14, 2001, at 1; Harriet Chiang, Bush 

Wants Terrorist Trials In Special Military Courts,SA N.FRAN.CHRON., Nov. 14, 2001 at A1; Josh 

Meyer, David G. Savage, and Eric Lichtblau, Bush to Allow Terror Trials by Military, L.A. 

TIMES, Nov. 14, 2001, at A1. 

2. See Katharine Q. Seelye, Just Who Would Want to Defend Suspects Before a Tribunal 

Probably Plenty, N.Y. T IMES, Dec. 28, 2001, at B6; Neil A. Lewis, The Military Tribunals; 

Rules on Tribunal Require Unanimity on Death Penalty,CHIC.TRIB., Dec. 28, 2001, at N3; 

John Hendren, Lawyers in Tribunals to Face Daunting Task, L.A. TIMES, Dec. 29, 2001, at A1. 

3. See Peter Slevin & Mary Beth Sheridan, Suspects Entered U.S. on Legal Visas; Men Blended 


98


has been opened involving an alleged terrorist has become near impossible 

for the press and public. Without public announcement, for example, 

on September 21, 2001, the country’s chief immigration judge, 

Michael J. Creppy, issued a memorandum ordering that hearings designated 

by the Justice Department be kept secret with court officials forbidden 

even to confirm that cases exist. 4 

It is axiomatic that discussion of public affairs must be “uninhibited, 

robust and wide-open.” 5 But that is not enough. Since the founding of 

the Republic, it has been considered essential that the public be informed 

as well. The importance of a right of access to information is believed to 

have been first outlined by James Madison: “a popular Government, without 

popular information, or the means of acquiring it, is but a Prologue to a 

Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance: 

And a people who mean to be their own Governors, must arm 

themselves with the power which knowledge gives.” 6 Later, Professor 

Meikeljohn concurred: “The primary purpose of the First Amendment is, 

then, that all the citizens shall, so far as possible, understand the issues 

which bear upon our common life.” 7 In our modern society, information 

is power. 

Under these circumstances, the presumption today must be of openness. 

The President has a vital responsibility to the people of the United 

In; Officials Say 49 Have Been Detained on Immigration Violations,W ASH.POST, Sept. 18, 

2001, at A6; Dan Malone, 800 Detainees Shrouded in Blanket of Secrecy; FBI, INS Aren’t 

Talking; Immigration Courts Ban Families from Hearings, DALLAS MORNING NEWS, Oct. 21, 

2001, at 18A; Phillip O-Connor, Middle Eastern Men Arrested Here Remain In Jail In Inquiries; 

Critics Say Court Rights Are Being Curtailed,ST.LOUIS POST-DISPATCH, Oct. 22, 2001, at A1; 

Cindy Gonzalez, Midlands FBI Agents Following Up on Attacks; Although Reports Have 

Tapered Off, There Are Still Leads to Check Out,O MAHA WORLD-HERALD, Oct. 7, 2001, at 7B; 

Darrel Giles, Crowd Applauds as FBI Agents Arrest Witnesses—Act of War: The Hunt,D AILY 

TELEGRAPH (SYDNEY), Sept. 27, 2001, at W4. 

4. William Glaberson, Closed Immigration Hearings Criticized as Prejudicial, N.Y. T IMES, 

Dec. 7, 2001, at B7. This article does not address the right of access to immigration proceedings. 

5. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 

6. Letter From James Madison to W.T. Barry (Aug. 4, 1822), in 9 THE WRITINGS OF JAMES MADISON, 

103 (Galliard Hunt ed.) (1910). At times, the Bush Administration has become confused over 

whether to release information, such as tapes of Osama Bin Laden celebrating the September 

11th attack, because of a belief that the American people may be unable to handle the 

information. See Editorial, The Bin Laden Tapes,N.Y. T IMES, Dec. 11, 2001, at A26. 

7. A LEXANDER MEIKLEJOHN,FREE SPEECH AND ITS RELATION TO SELF G OVERNMENT 75 (Oxford University 

Press) (1948). 


99


States, all of whom were affected by the September 11 attacks. There is a 

deep-seated desire to see justice be done to those who were behind the 

terrorism. “The courthouse is a ‘theatre of justice,’ wherein a vital social 

drama is staged; if its doors are locked, the public can only wonder whether 

the solemn ritual of communal condemnation has been properly performed.” 

8 Chief Justice Burger’s 1980 decision in Richmond Newspapers v. 

Virginia, the case definitively establishing the First Amendment right of 

access to criminal trials, hits precisely upon our current national need to 

take part in and be informed about the prosecution of terrorism: 

When a shocking crime occurs, a community reaction of 

outrage and public protest often occurs. Thereafter the open 

processes of justice serve an important prophylactic purpose, 

providing an outlet for community concern, hostility, and 

emotion. Without an awareness that society’s responses to criminal 

conduct are underway, natural human reactions of outrage and 

protest are frustrated and may manifest themselves in some form 

of vengeful “self-help”…. 

Civilized societies withdraw both from the victim and the 

vigilante the enforcement of criminal laws, but they cannot 

erase from people’s consciousness the fundamental, natural yearning 

to see justice done—or even the urge for retribution. The 

crucial prophylactic aspects of the administration of justice cannot 

function in the dark; no community catharsis can occur if justice 

is “done in a corner [or] in any covert manner.” It is not enough 

to say that results alone will satiate the natural community desire 

for “satisfaction.” A result considered untoward may undermine 

public confidence, and where the trial has been concealed from 

public view an unexpected outcome can cause a reaction that 

the system at best has failed and at worst has been corrupted. 

To work effectively, it is important that society’s criminal process 

satisfy the appearance of justice. And the appearance of 

justice can best be provided by allowing people to observe it. 9 

Many fear that press access will compromise national security concerns. 10 

The qualified right of access recognized by the Supreme Court clearly per- 

8. LAWRENCE TRIBE,AMERICAN CONSTITUTIONAL LA W 958 (Foundation Press, 2d ed.) (1988), quoting 

JEREMY BENTHAM,THE RATIONALE OF JUDICIAL EVIDENCE 597 et passim (J. Stuart Mill ed.) (1827). 

9. Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555, 571-72 (1980). 

10. See BillKeller, Trials and Tribulations,N.Y. T IMES, Dec. 15, 2001, at A31; Benjamin Weiser, Ex- 

Prosecutor Wants Tribunals to Retain Liberties,N.Y. T IMES, Jan. 8, 2002, at A13; Gail Gibson, 

Both Sides Soften Stance on Military Tribunals,THE BALTIMORE SU N, Dec. 5, 2001, at A1. 


100


mits courts to excise sensitive information as long as this is done in a 

narrowly tailored way to satisfy a compelling governmental interest. Concerns 

about a media circus surrounding terrorist trials and predictions that members 

of the al Qaeda terrorist network may be glorified or made into martyrs if 

they are on public trial must all be addressed on a case-by-case basis, not 

by blanket closure orders. 11 

This position paper explores in depth the trial of terrorists and unlawful 

combatants throughout the history of the United States. Indeed, 

we begin with the Boston Massacre of 1770 and review how the colonialists 

dealt with the press and the public’s desire to report on and attend that 

trial. We then look at the use of military tribunals in the Civil War and in 

World War II from the point of view of the press’s right to attend and 

report on the proceedings. The Civil War was a period when all civil rights 

were largely suspended and the press’ ability to cover the myriad military 

tribunals was stymied by an insecure and vulnerable Republic. In 1942, 

President Roosevelt permitted a secret military tribunal to try and convict 

eight German saboteurs. This paper looks closely at why the saboteurs 

were tried in secret and whether secrecy was needed to arrive at the proper 

outcome. In 1946, President Truman tried Tomoyuki Yamashita, a Japanese 

general, for war crimes in a special military tribunal. We look at the 

role of the press there in delivering the whole account of what the general 

was charged with and whether he should have been convicted. We also 

discuss the role of public access at Nuremberg. 

In 1964, the United States Supreme Court first articulated that the 

First Amendment protects the press and public from governmental censure. 

The First Amendment right of access to criminal proceedings was 

then recognized in 1980 in Richmond Newspapers. This paper looks at the 

development of the right of access both in Article III courts and in courtsmartial. 

We review many cases where terrorists and foreign criminals were 

tried and convicted in open court. We discuss in detail numerous hijacking 

trials, the Noriega and McVeigh trials, the 1992 World Trade Center 

bombing cases, and the trial of al Qaeda members in 2001. 

Given that the First Amendment right of access applies in cases involving 

terrorists and unlawful combatants tried in Article III courts and 

in courts-martial, can the President of the United States use his Article II 

11. See Elisabeth Bumiller and David Johnston, Bush Sets Option of Military Trials in Terrorist 

Cases,N.Y. T IMES, Nov. 14, 2001, at A1; Vicki Haddock, Terror Trial: Now You See it, Now 

You Don’t,S AN.FRAN. C HRON., Jan. 13, 2002, at D3; Harriet Chiang, Camera-shy Federal 

Judges Aren’t About to Change the Rules,SA N.FRAN.CHRON., Jan 19, 2002, at A9. 


101


powers to abrogate that right if he creates a military tribunal or if he 

conducts trials overseas We do not think he can. 

Finally, since we conclude that the First Amendment right of access 

must apply to all criminal proceedings no matter the forum, we address 

the special procedures that a court should apply in cases involving classified 

or national security information. The government’s undoubtedly 

compelling interest in protecting national security information always 

must be taken into account. Blanket closure orders need not—indeed must 

not—be permitted because the Classified Information Procedure Act (“CIPA”) 

already permits limited closure to protect truly sensitive information. 

II. IN TIMES OF WAR THROUGHOUT AMERICAN HISTORY, 

OPEN TRIALS HAVE HAD A SALUTARY EFFECT ON JUSTICE 

AND CLOSURE HAS BRED CORRUPTION AND CONTEMPT 

A. The Boston Massacre of 1770 

Chief Justice Burger, writing for the majority in Press Enterprise I, cited 

the Boston Massacre of 1770 as an excellent example of how the American 

colonialists inherited a strong tradition of open criminal proceedings, 

including jury selection. The Court noted: 

The presumptive openness of the jury selection process in England, 

not surprisingly, carried over into proceedings in colonial 

America. For example, several accounts noted the need for 

talesmen at the trials of Thomas Preston and William Wemms, 

two of the British soldiers who were charged with murder after 

the so-called Boston Massacre in 1770. 12 

The Boston Massacre is particularly instructive since it occurred at an extremely 

uneasy time for the colonialists and, in effect, involved the attack 

by enemy soldiers on townspeople. 

By March of 1770, the city of Boston was in political turmoil. While 

war had not yet been declared, the city had been effectively “occupied” 

since 1768 by British soldiers who were quartered among the civilian populace. 

13 As might have been expected, conflicts almost inevitably arose between 

the soldiers and their Colonial “hosts.” 14 On February 22, a loyalist 

12. Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 508 (1984) (finding that the 

First Amendment right of access applies to jury selection). 

13. BOSTON G AZETTE AND COUNTRY JOURNAL, Mar. 12, 1770. 

14. JO HN A DAMS,THE LEGAL PAPERS OF JO HN A DAMS 1 (Kinvn L. Wroth & Hiller B. Zobel, eds.) 


102


was harassed by a crowd outside his home; when he fired a gun at the 

crowd, he inadvertently killed Christopher Seider, an eleven-year-old boy. 15 

The Seider boy’s funeral became a major propaganda tool for the colonists, 

and a subsequent fist-fight between a group of soldiers and employees 

of “John Gray’s Ropewalk” on March 2 only exacerbated the tensions. 16 

The riot of March 5, 1770, to which Samuel Adams first affixed the 

title “the Boston Massacre,” was the climactic episode in that season of 

“partisanship, violence, and general testing of the legal process” in the 

colonial era. 

In the evening of March 5, the sentry standing in front of the Custom 

House on King Street in Boston got into a dispute with a group of 

townspeople. He called for help, and six British soldiers, a corporal, and 

Captain Thomas Preston marched down to the Custom House from the 

Main Guard. The tumult continued; the soldiers fired, their bullets striking 

a number of persons, three of who died instantly, one shortly thereafter 

and a fifth in a few days. 17 

Around two in the morning of March 6, a warrant was issued for the 

soldiers’ arrest, and they were taken into custody. Later that day, thousands 

of Bostonians appeared at Faneuil Hall demanding that the British 

troops be expelled from Boston. 18 Captain Preston immediately surrendered 

himself to the sheriff. 

As a result of the impassioned feelings in Boston, the cause of the 

soldiers firing ended up very much in dispute. On March 12, 1770, Captain 

Preston testified in his deposition that the soldiers were just innocent 

victims of the Bostonians’ conspiracy and criminal intent to steal 

the king’s money: 

In a few minutes after I reached the guard, about 100 people 

passed it and went towards the custom house where the king’s 

(1965). (“British troops had been garrisoned in Boston since 1768; thereafter friction between 

inhabitants and soldiers had increased steadily; this friction generated heat and even 

occasional sparks of violence.”). 

15. This is referred to as “the so-called martyrdom of the little Seider boy.” Id. at 3. Later in the 

year, Richardson, the loyalist who fired the shot that killed Seider, was convicted of murder. 

After a second trial, he was pardoned by the King. 

16. What passed at Mr. Gray’s rope-walk has already been given the public and may be said 

to have led the way to the late catastrophe.” B OSTON GAZETTE AND C OUNTRY JOURNAL, Mar. 12, 

1770. 

17. See A DAMS,supra note 14, at 1. 

18. H ILLER B. ZOBEL,THE BOSTON MASSACRE 206 (Norton & Co.) (1970). 


103


money is lodged. They immediately surrounded the sentry posted 

there, and with clubs and other weapons threatened to execute 

their vengeance on him. I was soon informed by a townsman 

their intention was to carry off the soldier from his post and 

probably murder him. On which I desired him to return for 

further intelligence, and he soon came back and assured me he 

heard the mob declare they would murder him. This I feared 

might be a prelude to their plundering the king’s chest. . . . [A] 

general attack was made on the men by a great number of heavy 

clubs and snowballs being thrown at them, by which all our 

lives were in imminent danger, some persons at the same time 

from behind calling out, damn your bloods—why don’t you fire. 

Instantly three or four of the soldiers fired, one after another, 

and directly after three more in the same confusion and hurry. … 

On my asking the soldiers why they fired without orders, they 

said they heard the word fire and supposed it came from me. 

This might be the case as many of the mob called out fire, fire, 

but I assured the men that I gave no such order; that my words 

were, don’t fire, stop your firing. In short, it was scarcely possible 

for the soldiers to know who said fire, or don’t fire, or 

stop your firing. 19 

On the same day Preston gave his deposition testimony, the decidedly 

partisan weekly, the Boston Gazette and Country Journal (“Boston Gazette”), 

reported quite a different story from the one Preston had given in 

his deposition. The Boston Gazette reported that on the night of March 5, 

the soldiers “were seen parading the streets with their drawn cutlasses and 

bayonets, abusing and wounding numbers of the inhabitants.” A few 

minutes after nine o’clock “four youths . . . were passing the narrow alley 

. . . in which was a soldier brandishing a broad sword of an uncommon 

size against the walls, out of which he struck fire plentifully.” The reports 

went on: “The noise brought people together; . . . and more lads gathering, 

drove [the soldiers] back to the barrack where the boys stood some 

time as it were to keep them in.” A short time later: 

Thirty or forty persons, mostly lads, being by this means gathered 

in King Street, Capt. Preston with a party of men with 

charged bayonets, crying make way! They took place by the 

custom house and, continuing to push to drive the people off 

pricked some in several places, on which they were clamorous 

19. See Deposition of Captain Thomas Preston, Mar. 12, 1770. 


104


and, it is said, threw snow balls. On this, the Captain commanded 

them to fire; and more snowballs coming, he again 

said damn you, fire, be the consequence what it will! One soldier 

then fired . . . the soldiers continued the fire successively 

till seven or eight or, as some say, eleven guns were discharged. 20 

Since the soldiers had fired without a prior reading of the “Riot Act,” 

they were thus subject to civil charges of murder or manslaughter. 21 They 

were indicted on March 13, 1770, but the trials were delayed for several 

months because of the perception that the soldiers would not be able to 

get a fair trial: 22 “the popular feeling was one not of self-criticism, but of 

bloodthirstiness and revenge.” 23 Preston and his men could not hope for 

a fair trial until the town’s passions had cooled. 24 

The press played an important role before the trial began in airing all 

sides of the controversy. The journalist Samuel Adams used his political 

clout in an effort to compel the soldiers to trial more quickly than the 

authorities wished. 25 Captain Preston himself also utilized the media to 

his own advantage when he had a “card” [advertisement] published in 

the Boston Gazette expressing his “Thanks . . . to the Inhabitants in general 

of the town—who throwing aside all Party and Prejudice, have with 

the utmost Humanity and Freedom swept forth advocates for truth, in 

defense of my injured Innocence.” 26 

Preston apparently thought that his own publicity campaign was ef- 

20. B OSTON G AZETTE AND COUNTRY JOURNAL, Mar. 12, 1770. 

21. PAUL JOHNSON, A H ISTORY OF THE AMERICAN PEOPLE 140 (HarperCollins) (1998). 

22. B OSTON G AZETTE suggested that limiting the freedom of the press might have led to the events 

that precipitated the Massacre: “[t]he Boston Journal of Occurrences, as printed in Mr. Holt’s 

New York Gazette, from time to time, afforded many striking instances of the distresses 

brought upon the inhabitants by [the quartering of the British soldiers]; and since those 

Journals have been discontinued, our troubles from that quarter have been growing upon us.” 

BOSTON G AZETTE AND COUNTRY JOURNAL, Mar. 12, 1770. (emphasis added). Apparently the colonists 

had come to rely upon the existence of a (relatively) free press and viewed it as a 

safeguard of their other liberties. 

23. See ADAMS,supra note 14, at 3. 

24. Id. 

25. Id. 

26. See ZOBEL,supra note 18, at 221. In Preston’s letter to London, however, the defenders of 

his “injured innocence” became “Malcontents industriously using every Method to fish out 

Evidence to prove [the March 5 shooting] was a concerted Scheme to murder the Inhabitants.” 

Id. at 235. 


105


fective, since by September, he felt that the temperature of the town had 

cooled enough for him to petition the court to expedite his trial: “the 

alteration in men’s minds towards him is extremely visible, a degree of coolness 

has succeeded to the late warmth, and there are many reasons to hope 

an impartiality on trial of which lately there was not a ray of expectation.” 27 

While a guilty verdict was still considered the most desirable from the 

colonists’ point of view, they nonetheless wanted to be able to show the 

world that the soldiers had received a fair trial. “Supremely confident 

that neither public opinion nor local jurors would return any verdict but 

condemnation, they were expansively willing to let the military have the 

best lawyers available; that way, no one could later taint the proceedings 

with unfairness.” 28 They obtained good quality counsel for the defense, 

including (future president) John Adams, who stated: 

“[T]his would be as important a Cause as ever was tryed in any 

Court or Country of the World; and that every Lawyer must hold 

himself responsible not only to his Country, but to the highest 

and most infallible of all Trybunals for the Part he should Act.” 29 

Some restraints on the press, which were the result of following the 

British system during the colonial period, were imposed during the trial. 

The Boston Gazette’s publication of Preston’s deposition testimony just after 

his arrest had led to the fear that a mob planned to lynch the soldiers. 30 

Thus, when printers made a motion at the town meeting that they be 

permitted to sell a printed narrative “of the horrid massacre,” it was voted 

down “lest it might unduly prejudice those whose Lot it might be, to be 

Jurors to try these Causes: This restraint they continued at their Meeting 

in May, and untill the Trials should be over.—A Caution, which all good 

Men will applaud.” 31 

Nonetheless, despite—or perhaps due to—the political sensitivities 

of the proceedings the trials of Preston and his men themselves were 

open to the public: 32 


28. See ZOBEL,supra note 18, at 221. 



31. Article Signed “Vindex” (Boston Gazette, Dec. 31, 1770), THE WRITINGS OF SAMUEL ADAMS 110 

(1904-08). 

32. See ZOBEL,supra note 18, at 248. 


106


There is something pleasing and solemn when one enters 

into a court of law—Pleasing, as there we expect to see the scale 

held with an equal hand—to find matters deliberately and calmly 

weigh’d and decided, and justice administered without any respect 

to persons or parties, and from no other motive but a 

sacred regard to truth. . . 33 

Despite the tenor of the times, and much to the surprise of Samuel Adams 

and his cronies, Captain Preston and most of the soldiers were acquitted. 

Two of the soldiers were found guilty, but they pleaded “benefit of clergy” 

and were branded on their thumbs instead of executed. 34 Samuel Adams 

seemed to believe the men were all guilty, but he was nevertheless satisfied 

having watched the trial that the judicial process had taken place 

fairly: 

The trial of Capt. Preston and the Soldiers who were indicted 

for the murder of Messrs. Gray, Maverick, Caldwell, Carr and 

Attucks, on the fatal fifth of March last, occasions much speculation 

in this Town: And whatever may be the sentiments of men of 

the coolest minds abroad, concerning the issue of this trial, we are not 

to doubt, but the Court, the Jury, the Witnesses, and the Council on 

both sides have conscienciously acquitted themselves.” 35 

The press may have lost its first access motion when it was not permitted 

to print articles during the trial of Captain Preston and his men. But the 

legacy of the case is that the pretrial publicity and the public’s attendance 

at the trial were instrumental in obtaining a fair result for the British soldiers. 

B. Civil War Military Tribunals 

During the Civil War, military tribunals, as opposed to civilian courts, 

were used by the federal government to try confederate spies and soldiers. 

36 More troubling, as part of a broader campaign by the Lincoln 


(1904-08). 

34. See ADAMS,supra note 14, at 24-25. 


(1904-08) (emphasis added). Since Adams clearly disagreed with the court’s holding, this 

statement may be somewhat ironic. 

36. See Ex Parte Quirin, 317 U.S. 1, 31 (1942) (listing representative cases), WILLIAM WINTHROP, 

M ILITARY LAWS AND PRECEDENTS 1310-11 (2d ed. 1896). Perhaps the most intriguing case of a rebel 

spy tried by military commission is that of Captain John Beall. A one-time law student who 


107


administration to quash public dissent in the North, military tribunals 

were also used to swiftly try and punish civilians who criticized the federal 

government or the war. 

Judged by today’s legal standards, the government’s wide-scale suppression 

of speech and civil liberties during the Civil War constituted extreme 

violations of the First Amendment and other constitutional rights. 

At the outbreak of war, when the Union army’s embarrassing defeat at 

Bull Run prompted calls by several northern papers to “let the South go,” 

the government’s response was to promptly shut them down for “sedition.” 

37 In August 1861, Postmaster General Montgomery Blair ordered 

the postmaster in New York to exclude from the mails five New York newspapers 

deemed not sufficiently supportive of the Northern war effort— 

came from a prominent Virginia family and was reportedly the heir apparent to a British 

nobleman, Beall was commissioned as an acting master in the confederate navy and traveled 

to Canada to organize clandestine operations against the Union. In September 1864, Beall led 

a small group of men who seized and scuttled two passenger steamers on Lake Erie—apparently 

as part of an unsuccessful attempt to free confederate prisoners of war interned nearby. 

He was subsequently captured after making three unsuccessful attempts to derail passenger 

trains near Buffalo, New York and, while incarcerated at Police Headquarters in New York 

City, reportedly attempted to bribe a turnkey with $3,000 in gold—again unsuccessfully. 

Charged with being a spy, pirate, and “guerrillero,” Beall was tried and convicted by a six 

member commission of Union military officers—apparently in closed proceedings—and sentenced 

to “be hanged by the neck till he is dead.” 

Several unsuccessful pleas for commutation of his death sentence were subsequently made 

to President Lincoln by prominent northerners—including a petition signed by 85 members of 

the House of Representatives and six senators, as well as personal appeals by the Governor of 

Massachusetts, the Librarian of Congress and the President of the Baltimore and Ohio Railroad. 

After Beall’s execution, a “weird and lurid story” began appearing in numerous newspapers 

that, among other supplicants, John Wilkes Booth had supposedly had a midnight 

interview with Lincoln, that Lincoln, moved to tears, promised to pardon Beall and that, 

when Lincoln broke his promise, Booth hatched his plot to assassinate Lincoln in revenge. 

This story was branded by one contemporary writer as “utter fabrication,” “generated in 

the brain of Mark M. Pomeroy, the notorious editor of ‘Pomeroy’s Democrat,’ a sensational 

weekly published shortly after the war.” Booth’s diary entry supposedly written after the 

assassination states “I knew no private wrong. I struck for my country and that alone.” There 

the Committee leaves the story of John Beall. See ISSAC MARKENS,PRESIDENT LINCOLN AND THE CASE OF 

THE JO HN Y. B EALL (1911), M ILITARY C OMMISSION,TRIAL OF JO HN Y. B EALL,A S A SPY AND GUERRILLA 

(Appleton and Co.) (1865). 

37. Among others, the Missouri State Journal, the St. Louis Ear Bulletin and The Missourian 

were closed down in July and August 1861. On August 18, a company of federal troops took 

possession of the Savannah (Missouri) Northwest Democrat and, on August 22, U.S. Marshals 

seized the type and paper the Philadelphia Christian Observer.See BRAYTON HARRIS,BLUE & 

G RAY IN BLACK & WHITE: NEWSPAPERS IN THE CIVIL WAR 97 (Brasseys) (1999). 


108


effectively putting them out of business. 38 Government agents also arrested 

newspaper editors deemed disloyal to the administration, and the 

State Department kept a dossier entitled “Arrests for Disloyalty.” 39 This 

policy of seizing and banning papers and arresting news editors was to 

continue throughout the war. 40 

Even Reverend J.R. Stewart was arrested in the pulpit of his church in 

occupied Alexandria, Virginia for omitting a prayer for the President of the 

United States. 41 And, on a less humorous note, when civilian William B. Mumford, 

in occupied New Orleans, tore down an American flag from the Customs 

House, he was ordered tried for treason by Major General Benjamin Butler 

and hanged from a temporary gallows erected at the scene of his “crime.” 42 

All told, approximately 13,000 civilians were arrested by federal authorities 

during the Civil War. 43 Lincoln also suspended the writ of habeas 

corpus, thereby denying prisoners judicial review of the legality of 

their incarceration. 44 And, with no judicial recourse, some northern civil- 

38. See W ILLIAM H. R EHNQUIST, A LL THE LAWS BUT ONE 46-47 (Knopf) (1998). In an effort to 

circumvent the ban, New York News owner Benjamin Wood (who was also the brother of 

New York’s Mayor) began delivering his paper west and south by private delivery. The 

response by U.S. Marshals was to seize all copies of the News and even to arrest a Connecticut 

newsboy found hawking the paper. Id. 

39. Id. For example, in September 1861, the Maryland publisher of Hagerstown Mail was 

arrested for publishing a “disloyal sheet” and released only after agreeing to take an oath of 

allegiance and stipulating not to correspond with any of the rebel states. R OBERT N. S COTT,THE 

W AR OF REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE U NION AND CONFEDERATE ARMIES SERIES I, 

248 (National Historical Society) (1971-2). 

40. For a full discussion of the federal government’s censorship of the press during the Civil 

War, see H ARRIS,supra note 38. 

41. See REHNQUIST,supra note 38, at 47-48. 

42. New Orleans Delta, June 8, 1862. 

43. See REHNQUIST,supra note 38, at 49. Secretary of State Seward is reported to have bragged 

to Lord Lyons, the British Minister: 

“My Lord, I can touch a bell on my right hand and order the imprisonment of a 

citizen of Ohio. I can touch a bell again and order the imprisonment of a citizen of 

New York; and no power on earth, except that of the president, can release them. 

Can the Queen of England do so much” 

44. Article I, Section 9 of the Constitution (which lists limitations on the powers of Congress) 

states that “[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when 

in Cases of Rebellion or Invasion the public Safety may require it.” United States Constitution, 

Art. I, Sec. 9, cl. 2. Given the placement of this clause in Article I (which governs Congress), 

the Supreme Court—both during and after the Civil War—has held that only Congress, not the 

President, has the authority to suspend habeas corpus (and, then, only in the two narrow 


109


ians were tried and convicted by secret military tribunals for having engaged 

in “disloyal” speech. 

Perhaps the most notorious example of the misuse of military tribunals 

during the Civil War was the case of Charles Vallandigham. In September 

1862, Lincoln issued a presidential proclamation that persons “discouraging 

volunteer enlistments, resisting militia drafts, or guilty of any disloyal 

practice affording aid and comfort to rebels” would be “subject to martial 

law and liable to trial by courts-martial or military commissions.” 45 This 

was followed, in April 1863, with the issuance by General Ambrose Burnside 

(commander of the military district of the Ohio) of General Order No. 38, 

which stated that: “the habit of declaring sympathies with the enemy 

will no longer be tolerated in this department. Persons committing such 

offenses will be at once arrested with a view to being tried as above stated 

or sent beyond our lines and into the lines of their friends.” 46 

The object of Burnside’s wrath, Vallandigham, was an Ohio lawyer 

and anti-abolitionist who had served as a Democratic member and speaker 

of the state legislature, was a U.S. congressman for four years until defeated 

in 1862 and who had gubernatorial aspirations. Bitterly opposed 

to the war, in April 1863, Vallandigham gave two speeches at Democratic 

rallies in Ohio where he criticized Burnside’s Order No. 38, denied the 

government’s legal right to try civilians before military commissions and 

told listeners to exercise their right to vote and hurl “King Lincoln” from 

his throne. Four days later, at 2:00 a.m., Burnside’s aid-de-camp and a 

company of sixty-seven soldiers arrested Vallandigham at his home in 

Dayton and placed him on a train to Cincinnati, where he was incarcerated 

at a military prison (but later transferred to a first-class hotel). The 

charge, ironically, was that Vallandigham—a civilian—had himself violated 

Burnside’s Order No. 38 by “publicly expressing . . . sympathies for 

those in arms against the Government of the United States” and “declaring 

disloyal sentiments and opinions.” 47 There was no charge that 

Vallandigham had broken any laws. 

circumstances mentioned.) See Ex Parte Merrymen, 17 Fed. Cas. 144, 148 (1861); Ex Parte 

Quirin, 371 U.S. 1, 24-25 (1942). See also JOSEPH STORY,COMMENTARIES ON THE CONSTITUTION 342 

(Carolina Academic Press) (1995). 

45. See REHNQUIST,supra note 38, at 60. 

46. R OBERT N. SCOTT,THE WAR OF REBELLION:A COMPILATION OF THE O FFICIAL RECORDS OF THE U NION AND 

CONFEDERATE ARMIES SERIES I 23 (National Historical Society) (1971-2). 

47. There was also a further specification that Vallandigham had declared in his speeches that 

“the present war is a wicked, cruel and unnecessary war, one not waged for the preservation 

of the Union, but for the purpose of crushing our liberty and to erect a despotism.” Id. 


110


The following morning, only hours after his middle-of-the-night arrest, 

Vallandigham was summarily tried by a military commission comprised 

of General Burnside’s subordinates, despite his protest that a military 

commission had no authority to try civilians. The military commission 

found Vallandigham guilty and sentenced him to imprisonment for 

the duration of the war. President Lincoln subsequently changed the sentence 

to banishment “beyond the Union lines,” and Vallandigham was 

delivered to the confederates in Tennessee. His effort to secure Supreme 

Court review failed, the Court holding that it had no jurisdiction to review 

the decision of a military commission. 48 

It was not until the end of the Civil War that the Supreme Court and 

the general public began to question the civil rights abuses arising from 

the widespread use of military tribunals. In the 1866 Ex Parte Milligan 

decision, the Court held that, even in times of war, the Constitution 

prohibits military courts from trying U.S. civilians in areas where the civil 

courts are open and functioning. In cataloging a litany of constitutional 

rights that were violated by subjecting civilians to martial law, including 

denial of the Sixth Amendment right “to a speedy and public trial by an 

impartial jury,” the Milligan court found that: 

Martial law . . . . destroys every guarantee of the Constitution . . . 

Civil liberty and this kind of martial law cannot endure together; 

the antagonism is irreconcilable; and, in the conflict, 

one or the other must perish. 49 

A fitting end to the civil rights abuses of the Civil War came about 

with the trial of John Booth’s accomplices for conspiracy in the assassination 

of President Lincoln. Military tribunals, closed to the public and press, 

were established to try the alleged conspirators. Not unlike today, the public’s 

desire to observe proceedings of such enormous consequence to the nation 

prompted reporters to complain to General Ulysses S. Grant about 

lack of access. Grant met with President Andrew Johnson, and the military 

tribunals were opened to the public and the press the following day. 50 

48. See Ex Parte Vallandigham, 68 U.S. 243, 251-2 (1863). Shortly after being delivered to the 

South, Vallandigham promptly escaped by sea, ran the Union blockade and wound up in Windsor, 

Ontario (across from Detroit). In July 1863, the Ohio Peace Democrats nominated Vallandigham 

as their candidate for Governor (while he was still in Canada), but he was defeated. He eventually 

returned to Ohio in 1864, was ignored by the federal government and died in 1871. 

49. Ex Parte Milligan, 71 U.S. at 2, 124 (1866). 

50. See James H. Johnston, Swift and Terrible,W ASH.POST, Dec. 9. 2001, at F1. To this day, 


111


Examining the “extent to which the government sought to suppress 

public criticism” during the Civil War, Chief Justice Rehnquist has observed 

that “the government used a heavy-handed, blunderbuss approach” 

replete with “gross violations of the First Amendment.” 51 These excesses, 

including use of secret military tribunals to punish dissent, are an unfortunate 

part of our history and, we believe, a sharp reminder of the danger 

posed by conducting military proceedings in secret. 

C. World War II—1942 Nazi Saboteurs case: 

Secret and Corrupt 

After the September 11, 2001 attacks, the Bush Administration did 

not point to the Boston Massacre or even the Civil War military tribunals 

when it was seeking to justify its decision to set up military tribunals to 

possibly prosecute non-citizen terrorists. Instead, the Administration pointed 

to President Franklin D. Roosevelt’s similar decision in 1942 to try eight 

German saboteurs before a secret military commission. In the span of less 

than two months—June to August, 1942—the eight men were all caught, 

tried by a heavily guarded, secret military tribunal inside the Justice Department 

and convicted. Six were executed, one was sentenced to life at 

hard labor and one was given 30 years at hard labor. While the Supreme 

Court upheld President Roosevelt’s power to try the men before a secret 

military tribunal, the facts underlying the case reveal that the secrecy of 

the proceedings permitted a travesty of justice to go undetected by the 

press and public. 52 

Early in the morning on June 13, 1942, four Germans landed on the 

beach in Amagansett, Long Island from a U-Boat carrying explosives, premade 

bombs, incendiary devices, several maps, and thousands of dollars 

in cash. The men, who had been trained at a sabotage school outside Berlin, 

thanks in part to press access and reporting on the trial, controversy exists about the conviction 

of Dr. Samuel Mudd, the Maryland physician who set Booth’s broken leg and gave him 

food and lodging the night Booth shot the President and sought to escape south. Did Mudd 

learn that Booth had just assassinated the President and helped in his escape, or was he simply 

an innocent physician fulfilling his Hippocratic oath to aid a patient The tribunal thought the 

former and sentenced Mudd to life imprisonment at hard labor. After serving four years in 

prison with Dry Tortugas, he was pardoned by President Andrew Johnson for his valiant 

efforts to halt a yellow fever epidemic. Mudd and his descendents to this day have sought to 

vindicate the good doctor’s name—still immortalized in the expression “his name is Mudd.” 

51. See REHNQUIST,supra note 38, at 221. 

52. For a discussion of the Supreme Court’s decision in Ex Parte Quirin, 317 U.S. 1 (1942), 

see infra notes 244-46. 


112


had orders to initiate a two-year sabotage plan to destroy “key railroad 

installations, aluminum factories, power plants, bridges and canal locks, 

plus targets of opportunity, such as Jewish-owned department stores, that 

could create public panic.” 53 

The Germans left the beach in Amagansett, ran to the train station 

and boarded a train to Jamaica, Queens. They took pains to blend in, 

purchasing their clothing in several steps, making them progressively nicer 

clothing, as not to appear to make too drastic a “transformation from rags to 

riches.” 54 The men then paired off and took the subway into Manhattan. 

On June 17 th , a second team of four Germans landed on the beach in 

Ponte Vedra Beach, Florida, south of Jacksonville. Both groups were scheduled 

to meet in Cincinnati on July 4 th , to begin their mission. 

By June 20 th all four members of the Long Island group were arrested 

by the FBI. Two members of the Florida group were arrested in New York City 

on June 23 rd , and the remaining two were arrested in Chicago on the 27 th . 55 

The men all confessed immediately and on the evening of June 27 th. J. 

Edgar Hoover, the head of the FBI, announced the arrests of the eight 

men. 56 He praised the work of his men in the FBI and the country was 

relieved. The New York Times reported: 

The rapid and effective action of the G-men in seizing the Germans 

almost as they landed on the sandy beaches gave a feeling 

of comfort and security. Men and women felt satisfaction 

and confidence that the government was infinitely better prepared 

to cope with spies and saboteurs than during the last 

war. 57 

53. George Lardner Jr., Saboteurs Captured! FDR Orders Secret Tribunal; 1942 Precedent 

Invoked by Bush Against Al Qaeda,W ASH.POST, Jan. 13, 2002, at W12. 

54. See Andy Newman, Terrorists Among Us (1942); Detecting the Enemy Wasn’t Easy Then, 

Either, N.Y. T IMES, Jan. 17, 2002, at B1. 

55. See FBI Website. (visited Feb. 5, 2002) . 

56. By announcing the arrests, Hoover compromised his later claims of threats to national 

security. A declassified communique from Major Gen. George V. Strong to Secretary of War 

Henry Stimson stated “The premature breaking of the story had wrecked our plans for seizing 

two additional groups of four men each who are apparently scheduled to land on our shores 

in August. . .In consequence, the only benefit to national defense that can be obtained is the 

deterrent effect upon possible sabotage by the prompt trial and execution of the eight men 

now in the hands of the FBI.” See Seth Kantor, How Hoover Sold Out an Authentic American 

Hero,THE ATLANTA JOURNAL AND CONSTITUTION, July 4, 1980, at 1-A. 

57. Lewis Wood, Nazi Saboteurs Face Stern Army Justice,N.Y. TIMES, July 5, 1942, at E6. 


113


Since they were apprehended prior to committing their planned crimes, 

if the men had been indicted in the courts they could be charged only 

with attempted sabotage which carried a maximum-sentence of 30 years. 

Lawyers at the War Department were skeptical that even those charges 

would stick, claiming that if the men were tried in civilian court, they 

could be convicted of “only a two-year offense” most likely “conspiracy 

to commit a federal crime.” 58 “Correspondence between Roosevelt Administration 

officials makes it clear that they avoided civilian courts partly 

because of concern that the “defendants would not receive the death penalty.” 

59 Trial by court-martial would have allowed for the death penalty, 

but strict rules of evidence, coupled with the need for a unanimous verdict, 

led the administration to opt for an alternative. 

President Roosevelt issued a Military Order, on July 2 nd , 1942, calling 

for the establishment of a military commission to try all eight Germans 

“for offenses against the Law of War and the Articles of War.” 60 The following 

day, Attorney General Francis Biddle and Major Gen. Myron C. 

Cramer released the charges—Violation of the Law of War, Violation of 

the 81 st Article of War, Violation of the 82 nd Article of War; and Conspiracy 

to Commit All of the Above Acts. 

A military order would allow for the result of a court-martial, without 

the high standards of evidence. Under the commission, hearsay could 

be admitted and the “standard of guilt was what a “reasonable man” 

would determine.” “The whole thing was kind of a legal farce because you 

knew what was going to happen from the beginning,” said Lauson H. 

Stone, one of the defense attorneys.” 61 

It would also help the United States with its war initiative. A military 

commission had not been used since the inquiry into President Lincoln’s 

assassination in 1865. As Yale Professor Boris Bittker, who was a junior 

member of the prosecution team, stated, “According to gossip in the corridors 

of the Justice Department, the White House hoped that the drama 

of a military trial would help to convince the public that we were really at 

war, and to end the civilian complacency that prevailed even in 1942, six 

58. George Lardner Jr., Saboteurs Captured! FDR Orders Secret Tribunal; 1942 Precedent 

Invoked by Bush Against Al Qaeda,W ASH.POST, Jan. 13, 2002, at W12. 

59. Wayne Washington, Fighting Terror Legal Considerations; FDR Move Cited in Tribunals, 

BOSTON G LOBE, Dec. 2, 2001, at A1. 

60. Text of Presidential Orders,N.Y. T IMES, July 3, 1942, at A3. 

61. See Seth Kantor, Secret Trial of ‘German 8,’THE ATLANTA JOURNAL AND CONSTITUTION, July 5, 

1980, at 1-A. 


114


months after the debacle at Pearl Harbor.” 62 Lloyd Cutler, also a junior 

attorney on the prosecution team concurred: “When these eight people 

were dumped in our laps, we wanted it to be a big victory.” 

It was decided that the trial should be held in secret, adding to the 

drama and intrigue. The order called for the trial to convene “in Washington, 

DC. On July 8, 1942, or as soon there after.” Prior to the start of 

the trial officials would not confirm even the exact location, nor the start 

date of the trial. As the New York Times reported on July 7th, “Preparations, 

apparent to any visitor, gave almost positive proof today that the 

trial of the eight Nazi saboteurs before the military commission, would be 

held in the Department of Justice Building… Nobody at the department 

would discuss the matter. There was a hush hush atmosphere everywhere.” 

Prior to the start of the trial there was speculation about one of the 

saboteurs, George John Dasch: “FBI officials refused to comment upon a 

report that George John Dasch, leader of one group of the saboteurs had 

cooperated with government authorities and thus might escape the death 

penalty.” 63 

On the day after the trial began the New York Times headline read Spy 

Trial Starts in Grim Secrecy; 8 Saboteurs Hidden from Public. The “extraordinary 

secrecy” provided “no inkling of what occurred was revealed to the 

public... [and] never a visual proof that the captives were even in the 

building.” 64 Although reporters were able to identify several of the witnesses 

including Hoover, four coast guardsmen, and Mrs. Gerda Meling, 

“a 24 year old former fiance of one of the saboteurs, with everyone in the 

court room sworn to utter silence, attempts to gain information about 

the inquiry were futile. The only scrap of ‘news’ leaking out was that Mr. 

Hoover sat beside Mr. Biddle.” 65 On that same day, July 9, the New York 

Times reported that the Senate Judiciary Committee gave unanimous approval 

to authorize President Roosevelt to award Hoover an “appropriate 

medal” for the round-up of the Nazis. 66 

The following day two communiqués were issued from the trial, which, 

62. Boris I. Bittker, The World War II German Saboteurs’ Case And Writs Of Certiorari Before 

Judgment By The Court Of Appeals: A Tale Of Nunc Pro Tunc Jurisdiction,14 CONST.COMMEN- 

TARY 431 (1997). 

63. Trial of 8 Nazis Rushed in Capital, N.Y. T IMES, July 7, 1942 at A7. 

64. Lewis Wood, Spy Trial Starts in Grim Secrecy; 8 Saboteurs Hidden From Public, N.Y. 

TIMES, July 9, 1942, at A1. 

65. Id. 

66. Id. 


115


according to the New York Times, officially revealed for the first time even 

that the trial was actually proceeding. According to the New York Times, the 

“stiffly written account” of the previous day’s proceedings “by General McCoy 

were of the most formal military character and revealed virtually nothing 

beyond the fact that seven witnesses had testified and were cross-examined.” 67 

Elmer Davis, head of the Office for War Information, repeatedly expressed 

his dissatisfaction with the amount of information coming from 

the trial. “Discussing the trial at his press conference, Mr. Davis said he 

based his argument for some publicity on the theory that the public would 

feel better if the trial were reported by outside observers. The public, he 

thought, had a right to know what went on, if this did not injure national 

security.” 68 He proposed the creation of a three-person press pool to 

hear the testimony, and the dissemination of censored transcripts, but 

was overruled. 

Representative Mike Monroney, an Oklahoma Democrat criticized the 

“’stiff and inadequate Army communiques that suppress all news under 

the guise of withholding military information strain our credulity…Every 

one…realizes that phases of the trial must be secret’ but he complained 

against suppression rather than common sense censorship.” 69 

The following day the courtroom was opened briefly to the press for 

a photo-op. Proceedings were suspended and sixteen newspaper representatives 

were admitted to the room. The 15 men and 1 woman were not 

permitted to ask any questions to anyone but General Cox, but notes 

could be written and anything they could “record with your eyes you 

may write about.” Consequently press accounts were limited to the appearance 

of the defendants, the seating arrangement, the fluorescent lighting, 

and the piles of evidence. 70 The next day, the New York Times ran the 

account along with photos of the room, the prisoners, and photos of 

incendiary devices made to look like pens. 

The brief fifteen-minute tour was the only time the press was allowed 

into the meeting room. The following day, it was announced that transcripts 

of the trial would not be released during the trial. The trial continued, 

with only terse communiques issued. They provided only slightly 

more information. For example, the New York Times reported on July 17 

67. Lewis Wood, 7 Witnesses Heard in Nazi Spy Case; Communique Vague, N.Y. T IMES,July 

10, 1942, at A1. 

68. Gen. M’Coy Predicts a Long Spy Trial,N.Y. T IMES, July 11, 1942, at 15. 

69. Id. 

70. Lewis Wood, Spy Court Session Viewed by Press, N.Y. T IMES, July 12, 1942, at A1. 


116


that “photographs of explosives, abrasives, clothing and other accessories 

found on the Florida beach were presented this afternoon.” The brief 

statements led to a great deal of speculation. It was assumed, for example, 

in the New York Times that a lengthy document was a confession (which 

took 3 days to read into the record) “Part of the prosecution testimony 

was a long statement made to the Federal Bureau of Investigation by one 

of the accused. This is believed to be a statement made by Dasch.” 71 

Although the court released virtually no substantive information about 

the military proceeding, the FBI released a considerable amount of information 

about the investigation indirectly by announcing the arrest of 

the “immediate contacts” of the saboteurs. Detailed biographies of each 

of the 8 male and 6 female “aides” were released, along with their photos 

and addresses and connection to the saboteurs. 

In the middle of the trial, a recess was called so that the saboteurs 

could ask the United States Supreme Court to release them because the 

military tribunal had been unconstitutionally created by President Roosevelt. 

An eight hour hearing was held before the Court on July 29 and 30 in 

which the parties debated the Court’s jurisdiction to hear a case from a 

military tribunal and President Roosevelt’s executive power in creating 

them. The next day the Court issued a brief unsigned opinion upholding 

the constitutionality of the tribunals and its own jurisdiction with an 

opinion to follow. 72 

On August 8 th the newspapers reported that six of the men were executed 

in the electric chair. Ernst Peter Burger was sentenced to life and 

George Dasch was sentenced to 30 years in jail. The two men were sent to 

a Federal Penitentiary in Atlanta. 

The case of the Nazi saboteurs always had a shroud of suspicion around 

it. After the war, when Harry Truman was President, his Attorney General, 

Tom Clark, decided that “the time had come to open the files of the secret 

trial of the eight German saboteurs.” 73 It turned out that George Dasch 

and Ernst Burger “were haters of the Hitler regime, who left Germany 

with the real saboteurs with the determination to expose the plot immediately 

on arrival.” 74 They “phoned the FBI headquarters in New York 

immediately on their secret arrival, went to Hoover’s Washington office 

71. New York Times, July 20, 1942. 

72. The formal decision was not issued until October 1942, about three months after the six 

men had already been executed. 

73. W ILLIAM W. TURNER, HOOVER’S FBI: THE MEN AND THE MYTH 109 (Shelbourne Press) (1970). 

74. Id. 


117


at once, and poured out the full story of the plot and told of how and 

why they had led the real saboteurs into the trap.” 75 

One of Hoover’s men later wrote: “Ironically, [Dasch] was most probably 

an authentic American war hero, responsible for saving many lives. But 

fate had made him a threat to the FBI’s public image.” 76 As Lloyd Cutler, 

former White House Counsel and a junior member of the Nazi prosecution 

team, explained, Hoover “had announced to the world that his men had 

captured these little fellows, as if the FBI had been on the beach when they 

arrived in their little rubber boats…. Actually, they called from the Mayflower 

[Hotel], and it took the FBI four hours to get over there.” 77 Hoover “grabbed 

all the glory,” Cutler told The Atlanta Journal Constitution in 1980. “I think the 

major reason the trial was kept secret,” said Cutler, “was the fact that it wasn’t 

the FBI that had done the real work in capturing the Nazis who did it.” 78 

Dasch and Burger would probably not have been convicted if the 

trial had been open. Dasch’s confession, which took three days to read 

into the record, detailed his plot to undermine the Nazis. Hoover’s refusal 

to make public how the enemy was captured, especially where Dasch was 

concerned, “contributed toward a prison riot inside the Atlanta penitentiary 

more than two years after the secret trial.” 79 The prisoners complained 

that it was “unbearable to be housed with Nazis” and almost threw Dasch 

off the roof. Dasch was then transferred into solitary confinement at 

Leavenworth, Kansas, forbidden to have even a pencil. 80 In April 1948, 

both Dasch and Burger were deported and granted executive clemency. 

Dasch, forced to return to Germany, was branded both a Nazi criminal 

and a traitor to the fatherland in the magazine Der Stern. His hometown 

paper, in a front page article, dubbed him “The Judas of Speyer.” Dasch 

tried to return to the United States many times during his life but was 

never permitted. 81 His records contain speculation, among other things, 

that he was a communist. 82 Dasch died in Germany in 1991. 

75. Id. 

76. Id. 

77. David Savage, Military Trials Have Roots in Nazi Case, L.A. T IMES, Nov. 18, 2001, at A5. 

78. Seth Kantor, How Hoover Sold Out ‘An Authentic American Hero,’THE A TLANTA JOURNAL 

AND CONSTITUTION, Jul. 4, 1980, at 6-A. 

79. Id. 

80. Id. 

81. Seth Kantor, German Spy George Dasch Wants to See America Again, THE ATLANTA JOURNAL 

AND CONSTITUTION, Mar. 11, 1984, at 36-A. 

82. Seth Kantor, How Hoover Sold Out ‘An Authentic American Hero,’THE A TLANTA JOURNAL 


118


Just eleven years after the secret Saboteur trial, in 1953, Felix Frankfurter, 

one of the Justices who sided with FDR in Quirin, deemed the case 

“not a happy precedent.” 83 Justice William Douglas regretted ruling so 

quickly without issuing a fully reasoned opinion. “It is extremely undesirable 

to announce a decision on the merits without an opinion accompanying 

it.” John Frank, a clerk to Justice Black during the Quirin case wrote: 

“The Court allowed itself to be stampeded.” 

The military tribunal of 1942 served the purpose of exacting severe 

and swift punishment on the saboteurs. Had the trial been opened to the 

public, the six men who were legitimately saboteurs would have gone to 

their death all the same. However, Hoover would not have been able to 

suppress the work of Dasch and Burger in exposing the plot to the American 

government. 

D. World War II—The 1946 Trial of Tomoyuki Yamashita 

General Tomoyuki Yamashita served as the commanding general of 

the Fourteenth Army Group of the Imperial Japanese Army in the Philippines 

from October 9, 1944 and September 3, 1945. 84 Immediately after 

his surrender on September 3, 1945, Yamashita was indicted and tried for 

war crimes committed not by Yamashita as an individual, but by the soldiers 

under his command. 85 

Yamashita’s trial was governed by the “Rules Governing the Trial of 

War Criminals,” penned by General Douglas MacArthur on September 

25, 1945. 86 The regulations, which consisted of all of six pages of text and 

twenty-two regulations, afforded the accused only minimal due process 

rights and did away with most evidentiary rules. 87 The regulations 

were designed to bring Japanese war criminals to swift and immediate 

justice and were issued at the same time as a directive from MacArthur 

that he would “stand for no quibbling or unnecessary delay. This will 

AND CONSTITUTION, Jul. 4, 1980, at 6-A. See also Seth Kantor, Broad Law Used to Bar Dasch,THE 

ATLANTA JOURNAL AND CONSTITUTION, Mar. 11, 1984. 

83. Danielsky, The Saboteurs’ Case, 1 J.S. Ct. Hist. 61, 80 (1996) (quoting memorandum from 

Justice Frankfurter) (Cited in Congressional testimony of Neal Katyal, Nov. 28, 2002, at 7) 

(Visited Feb. 5, 2002) . 

84. B RUCE D. LANDRUM, NOTE:THE YAMASHITA WAR CRIMES TRIAL:CO MMAND RESPONSIBILITY THEN AN D 

N O W,149 MIL.L.R EV. 293, 294 (1995). 

85. G EORGE F. GUY,THE D EFENSE OF G ENERAL YAMASHITA (Supreme Court Historical Society) (1981). 

86. JOHN D EANE POTTER, A SOLDIER MUST H ANG 179 (Frederick Muller Ltd.) (1963). 

87. See G UY,supra note 85. 


119


be a military court and will follow strict rules of war. There will be no 

stalling.” 88 

Yamashita’s trial began in Manila on October 8, 1945 and lasted until 

December 5, 1945. 89 Despite the minimal protections afforded the defendant, 

the government this time was more hesitant to hide anything 

from public view; newspaper reporters were allowed into the hearing room, 

for at least some of the proceedings. The New York Times reported that 

“fifty accredited press correspondents and about 300 spectators will be 

admitted to the court.” 90 Before the trial began, press accounts about 

Yamashita characterized him as “Beast of Bataan,” 91 “The Tiger of Malaya,” 

92 and the “author of Philippine Massacre and Destruction. 93 As a 

result of being able to sit in the hearing room and listen to the evidence, 

as the trial progressed, newspaper stories regarding the trial shifted dramatically 

in tone. One by one, publications like the New York Times, Newsweek 

and the London based Daily Express, printed articles critical of the proceeding. 

94 Newsweek went so far as to say that it was “scandalized by the 

break with Anglo-Saxon Justice.” 95 By the end of the trial, reporters had 

changed their mind about the Tiger—a straw vote taken of the twelve 

reporters who had conscientiously covered the trial resulted in a unanimous 

agreement that Yamashita should not be convicted. 96 

The military commission disagreed. In a decision that has been widely 

criticized ever since, the military tribunal convicted Yamashita solely on 

the basis of command responsibility. Despite an appeal to the Supreme 

Court, 97 Yamashita was hanged on February 23, 1946. 98 

The parallels with the Boston Massacre of 1770 and the saboteurs 

trial are instructive. The public was disappointed that the soldiers were 

88. See POTTER,supra note 86. 


90. Robert Trumbull, Yamashita Pleads Innocent at Trial,N.Y. T IMES, Oct. 8, 1945, at A7. 

91. Gerry J. Simpson, Didactic and Dissident Histories in War Crimes Trial,60 ALB.L.R EV. 

801, 802 (1997). 

92. Id. 

93. Lindesay Parrot, Yamashita’s Trial Speeded in Manila,N.Y. T IMES, Oct. 3, 1945. 

94. See POTTER,supra note 86, at 179-181. 

95. Id. at 180. 


97. See In Re Yamashita, 327 U.S. 1 (1946) (upholding conviction on habeas corpus grounds). 



120


acquitted in Boston but were satisfied—having viewed the trial themselves— 

that a fair trial had taken place. In Yamashita, the press, having watched 

the trial, thought the general should have been acquitted. In both cases, 

though, the press and public played the essential role of seeing for themselves 

and making informed, independent judgments on the conduct and 

character of their respective governments. However, the saboteurs trial 

had inappropriately foreclosed that ability. 

The timing of Yamashita’s hasty trial overlapped with the beginning 

of the proceedings at Nuremberg. As discussed more fully below, extensive 

deliberation went into creating the tribunal at Nuremberg and into developing 

procedures to be used at the trial. However, no one, not even 

Justice Robert H. Jackson who took no part in the Supreme Court decision 

that sent Yamashita to his death expressly because he was involved 

in the Nuremberg Trial, ever thought of applying those procedures to 

General Yamashita. This historical omission is known to us only because 

of the reports of the newspapermen who covered the Yamashita trial. 

E. Nuremberg 

The War Criminals Before the International Military Tribunal or the 

Nuremberg Trial, as it is commonly known, is perhaps the most famous 

war crime trial of all time. The Nuremberg trial, conducted in Nuremberg, 

Germany, opened on November 20, 1945 and continued until October 1, 

1946. 99 It involved 31 defendants—twenty four individuals and seven organizations, 

including the SS and the Gestapo—who were charged with 

war crimes, conspiracy to commit crimes against peace, planning, initiating 

and waging wars of aggression, and, most significantly, crimes against 

humanity. 100 While the conduct of the trial itself has been written about 

extensively, of interest for the purposes of this discussion is the creation 

of the judicial procedures to be applied at the Nuremberg Trial. As the war 

progressed and an Allied victory became inevitable, the discussion of how 

to address the problem of war criminals took on great significance among 

the Allied forces. Originally, most military and political officials, including 

President Roosevelt, Chief Justice Stone and several cabinet members, 

favored the swift execution of Nazi leaders without trial. 101 However, Sec- 

99. Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps Before the 

Nuremberg Tribunal,105 YALE L.J. 449 (1995). 

100. W HITNEY R. H ARRIS,TYRANNY ON TRIAL xxiii-xxiv (Southern Methodist University) (1954). 

101. See W HITNEY R. H ARRIS,TYRANNY ON TRIAL xxxiii (Southern Methodist University) (1954); 

FRANK M. BUSCHER,THE U.S. WAR CRIMES TRIAL PROGRAM IN G ERMAN 15-17 (Greenwood Press) (1989). 


121


retary of War Henry Stimson convinced President Franklin D. Roosevelt 

that the criminals should be tried and protected by “at least rudimentary 

aspects of the Bill of Rights” as a symbol of the triumph of justice over 

tyranny. 102 As a result, Robert H. Jackson, on leave from the U.S. Supreme 

Court, was appointed chief American prosecutor at the war crimes trials. 

Along with the chief prosecutors from England, France and the Soviet 

Union, Jackson developed protocols for an international tribunal to try 

the Nazi war criminals. 103 On August 8, 1945, by an agreement known as 

the London Agreement, the Allied powers formed the International Military 

Tribunal and began preparing for trial. 104 As the trial drew nearer, 

Jackson emphasized the need for the trial to bear witness to the Nazi 

atrocities in Europe. In so doing, Jackson transformed the trial from a 

mere legal proceeding into a tool to carve the horrors of the Holocaust 

onto the collective memory. Jackson made his mission clear in his opening 

statement when he said “the wrongs which we seek to condemn and 

punish have been so calculated, so malignant and so devastating, that 

civilization cannot tolerate their being ignored because it cannot survive 

their being repeated. . . .We must never forget that the record on which 

we judge these defendants is the record on which history will judge us 

tomorrow.” 105 

The press was very important to Jackson’s memory-creating mission. 

All proceedings at the trial were open to the press and to the public, and 

transcripts of the proceedings were made available to the press in four 

languages. 106 Newspaper reporters covered every aspect of the trial, and 

photographs of the proceedings were made available to the public. 107 

While the procedural differences between the Nuremberg Trial and 

the Yamashita Trial are staggering, particularly since they were happening 

at the same time, the role of the press in both trials was similar. At Nuremberg, 

even more so than at Yamashita’s trial, the press served the purpose of 

educating the public and creating a collective memory of Nazi atrocities. 

In addition, the press contributed to the world’s perception that, through 

102. See BUSCHER,supra note 101, at 16. 

103. Id. 

104. See H ARRIS,supra note 100, at 22-24. 

105. Henry T. King, Jr., Symposium: Universal Jurisdiction: Myths, Realities, And Prospects, 

35 NEW EN G.L.REV. 281 (2001). 

106. Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 P ACE 

INT’L L. REV. 203, 210 (1998). 

107. See Douglas, supra note 99, at 455. 


122


the orderly application of judicial procedures, justice had prevailed over 

the Nazi regime. 

III. THE FIRST AMENDMENT RIGHT 

OF ACCESS TO CRIMINAL PROCEEDINGS 

Public criminal trials are so commonplace in our society that few 

think twice about the rights underlying such openness. When they do, 

the criminal defendant’s Sixth Amendment right to a public trial usually 

comes to mind. However, it is now beyond dispute that a separate right of 

access to attend trials also arises from the First Amendment. That right to 

attend all criminal trials, belonging to the press and public not to the 

defendant, mandates that proceedings be open absent compelling and 

clearly articulated reasons for closing them. This independent constitutional 

right of access was first recognized by the United States Supreme 

Court in 1980 in Richmond Newspapers, Inc. v. Virginia. 108 Soon thereafter, 

the United States Court of Military Appeals recognized the same right, 

mandating the same test for closure, in courts-martial. 109 These rights belonging 

to the public, not to the government or the defendant, are fundamentally 

necessary for the effective functioning of our criminal justice 

system, and neither the defendant, nor the government, nor both jointly 

can shield a proceeding from public view without meeting the constitutional 

test. 110 

A. First Amendment Right of Access 

To Criminal Trials in Article III Courts 

Recognition of the public’s independent right of access to criminal 

proceedings came about in the midst of the development of a broad spectrum 

of speech-protective law that has taken place in the past 40 years. 

The cornerstone was laid by the Supreme Court in New York Times Co. v. 

108. 448 U.S. 555, 580 & n.17 (1980). See also Globe Newspaper Co. v. Superior Court, 457 

U.S. 596 (1982) (right to attend testimony at criminal trial of minor victim of sexual offense); 

People v. Harris, 57 N.Y.2d 335, 347 n.4 (1982) (“right of the public to attend criminal trials 

is implicit in the guarantees of the First Amendment”), cert. denied, 460 U.S. 1047 (1983). 

The Supreme Court also has recognized the existence of this right in a variety of pre-trial 

proceedings. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (preliminary 

hearing in criminal case); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (voir 

dire examinations of jury venire). 

109. See United States v. Hershey, 20 M.J. 433, 435 (C.M.A. 1985). 

110. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). 


123


Sullivan, 376 U.S. 254 (1964). There, the Court recognized, for the first 

time, that the foundation for the broad protection of speech is, in fact, 

our republican form of government itself. 

[T]he Constitution created a form of government under which 

‘[t]he people, not the government, possess the absolute sovereignty.’ 

The structure of the government dispersed power in reflection 

of the people’s distrust of concentrated power, and of 

power itself at all levels. 111 

For the Court, the “central meaning of the First Amendment,” was the 

“right of free public discussion of the stewardship of public officials. . . .” 112 

Thus, the First Amendment “‘was fashioned to assure the unfettered interchange 

of ideas for the bringing about of political and social changes 

desired by the people.’” 113 

In the decades following Sullivan, these principles became embedded 

in the First Amendment—and thus the rule of law—through dozens of 

rulings of the Supreme Court. In particular, and following from the First 

Amendment protection of public discussion, is the right of the public to 

receive information about government, including the courts, both civilian 

and military. “[T]he First Amendment goes beyond protection of the 

press and the self-expression of individuals to prohibit government from 

limiting the stock of information from which members of the public may 

draw.” 114 It was in this context that the Supreme Court faced the question 

of whether the public and press had a First Amendment right to observe 

criminal trials and proceedings. Unquestionably, the court found, that 

right exists. 115 

In the inaugural decision confirming the right, Richmond Newspapers, 

Justice Burger took pains to rest this conclusion upon historical tradition, 

dating back to the “days before the Norman Conquest.” 116 Throughout 

111. New York Times v. Sullivan, 376 U.S. 254, 274 (1964) (citation omitted). 

112. Id. at 273, 275. 

113. Id. at 269 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). 

114. First National Bank v. Bellotti, 435 U.S. 765, 783 (1983); accord Kleindienst v. Mandel, 

408 U.S. 753, 762 (1972) (“In a variety of contexts this Court has referred to a First Amendment 

right to ‘receive information and ideas.’”) (citation omitted). 

115. See Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. 

Superior Court, 457 U.S. 596. 

116. 448 U.S. at 565. 


124


the middle ages and during the American colonial period, “part of the 

very nature of a criminal trial was its openness to those who wished to 

attend.” 117 Members of the community always possessed the “right to observe 

the conduct of trials.” 118 In late colonial and early federalist America, 

this constituted much more than a formalistic privilege of “access.” Rather, 

observing proceedings—going to them, learning about them, judging them— 

was interwoven into the fabric of routine social life. The “administration 

of justice” was built upon participation by nearly all of the local community 

in what was referred to as “court day.” “It would be hard to overemphasize 

the importance of the ceremonial at the center of coming together 

on court day.” 119 In the small, face-to-face communities that comprised 

the era of the founders, citizens encountered authority chiefly “through 

participation in courthouse proceedings,” and attending them involved 

“participat[ing] in discovering the meaning of the law. . . .” 120 Doing so 

“served not only to make the community a witness to important decisions 

and transactions but also to teach men the very nature and forms 

of government.” 121 Citizens “left the stage of court day . . . secure in the 

sense that they had shaped and ratified communal affairs . . . .” 122 

117. Id . at 568. 

118. Id . at 572. 

119. R HYS ISAAC,THE TRANSFORMATION OF VIRGINIA 1740-1790 88 (1982). 

120. A.G. ROEBER,FAITHFUL MAGISTRATES AND REPUBLICAN LAWYERS 74 (1981). 

121. ISAAC,supra note 119, at 88. 

122. R OEBER,supra note 120, at 74. Today, the vast majority of Americans are precluded from 

physically attending trials, and, therefore, from observing them firsthand due to courtroom 

space constraints and the changing times. The Supreme Court, recognizing these practical 

realities, also has recognized the important surrogate function of the news media in these 

circumstances. The Court stated in Richmond Newspapers v. Virginia that “[i]nstead of acquiring 

information about trials by first-hand observation or word of mouth from those who 

attended, people now acquire it chiefly through the printed and electronic media.” 448 U.S. 

555, 572-73 (1980). Moreover, “the right to attend any may be exercised by people less 

frequently today when information as to trials generally reaches them by way of print and 

electronic media.” Id. at 577 n.12. One commentator has observed, 

“[s]ince the establishment of the colonies in America, the public has had a role in the 

judicial process, not only as a litigant but also as a spectator and participant... 

Conditions in the twentieth century have not altered the public’s desire to participate, 

but they have altered some of the consequences of such participation. Trials 

continue to be open but only a few spectators witness them personally.” 

H ERBERT JACOB,JUSTICE IN A MERICA:C OURTS,LAWYERS,AND THE JUDICIAL PROCESS 135 (4 th ed. 1984) 

(emphasis added). 


125


These constitutional rights to view criminal trials do not consist of 

simply the right to publish what transpires at the proceedings after the 

fact. The rights are ones of observation—by the public. “People in an 

open society do not demand infallibility from their institutions,” the 

Court has stated, “but it is difficult for them to accept what they are 

prohibited from observing.” 123 It was “not crucial” to the Court whether 

the “right to attend criminal trials to hear, see and communicate observations 

concerning them [is described] as a ‘right of access’ or a ‘right to 

gather information.’” 124 Rather, what mattered to the Court was captured 

by its assertion that “[t]he explicit, guaranteed rights to speak and to 

publish . . . what takes place at a trial would lose much meaning if access 

to observe the trial could, as it was here, be foreclosed arbitrarily.” 125 

Following Richmond Newspapers, the right was clarified and extended 

to include many pre-trial proceedings. That case and its progeny, taken 

together, stand for the now unquestioned proposition that only in compelling 

and clearly identified circumstances may government foreclose the 

opportunity for citizens to obtain information central to understanding 

the workings of the government in general, and criminal trial proceedings 

in particular. 126 In the words of the Supreme Court, the First Amendment 

right of access to judicial proceedings may be overcome only after a 

court makes “specific, on the record findings … that ‘closure is essential 

to preserve higher values and is narrowly tailored to serve that interest.’” 127 

Under this standard, commonly referred to as the Press-Enterprise test, 

“conclusory assertion[s]” simply do not suffice. 128 

The constitutional right to attend and observe trials serves to reinforce 

public acceptance—crucial in a democratic society—of “both the 

process and its results.” 129 

Secrecy of judicial action can only breed ignorance and distrust 

123. See Richmond Newspapers, 448 U.S. at 572. 

124. Id . at 576 (citations omitted). 

125. Id. at 576-77 (emphasis added). 

126. Id. at 575, 576 (“Plainly, it would be difficult to single out any aspect of government of 

higher concern and importance to the people than the manner in which criminal trials are 

conducted...”). 

127. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986) (quoting Press Enterprise 

Co. v. Superior Court, 464 U.S. 501, 510 (1984)). 

128. Id. at 15. 

129. See Richmond Newspapers, 448 U.S. at 571. 


126


of courts and suspicion concerning the competence and impartiality 

of judges; free and robust reporting, criticism, 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 cleansing effects of exposure and public 

accountability. 130 

The law is clear: under Richmond Newspapers and its progeny, the public 

and the press possess presumptive constitutional rights to attend and observe 

criminal trials. 

B. First Amendment Right of Access To Courts-Martial 

The public’s First Amendment right of access to criminal proceedings—and 

a criminal defendant’s Sixth Amendment right to a public trial— 

apply in courts-martial, as well. As early as 1956, interpreting the defendant’s 

Sixth Amendment rights, the Court of Military Appeals held that “[i]n 

military law, unless classified information must be elicited, the right to a 

public trial includes the right of representatives of the press to be in attendance.” 

131 Nearly thirty years later, following Richmond Newspapers, the 

Court of Military Appeals observed that the test for closure outlined by 

the Supreme Court in that case mirrored the standard applied by the mili- 

130. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J. concurring); 

accord, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982) (“Public 

scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact finding 

process, with benefits to both the defendant and the society as a whole[,] permit[ting] the 

public to participate in and serve as a check upon the judicial process—an essential component 

in our structure of self-government.”). The Supreme Court has recognized the existence 

of the right of access in a variety of pre-trial proceedings, as well. See Press-Enterprise, 478 

U.S. 1 (preliminary hearing in criminal case); Press-Enterprise, 464 U.S. 501 (voir dire examination 

of jury venire). 

131. United States v. Brown, 7 C.M.A. 251, 258 (1956). This case is the first Court of Military 

Appeals ruling on this issue. It predates, and, therefore, does not rely on the United States 

Supreme Court’s express recognition of public and press access to criminal proceedings in 

Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). However, because the defendant 

had been able to invite whomever he wished to attend, and only the general public and press 

were excluded, the case foreshadowed the issues raised in Richmond Newspapers and its 

progeny. “We are met at the outset with an issue of fundamental import which is properly 

before us for the first time,” the military court wrote in Brown. 7 C.M.A. at 254. “...[W]e will 

develop both the civilian and military rule.” Id. at 255. Although ultimately relying on the 

Sixth Amendment right, the Court’s decision rested largely on the same logic and historical 

experience later cited by the Supreme Court in Richmond Newspapers. 


127


tary for evaluating whether a defendant’s Sixth Amendment right to a 

public trial had been violated. The Court of Military Appeals then expressly 

held that the First Amendment right of access to criminal trials 

also extends to courts-martial. 132 

Nearly a decade before the Supreme Court explicitly recognized a public 

right of access to criminal proceedings, in an unrelated context, the Court 

affirmed that, “[T]he constitutional grant of power to Congress to regulate 

the armed forces ... itself does not empower Congress to deprive people 

of trials under Bill of Rights safeguards ....” 133 Applying that general principle, 

military courts have confirmed in numerous cases that, “Without 

question, the sixth amendment right to a public trial is applicable to 

courts-martial.” 134 Significantly, the Court of Military Appeals has relied on 

and adopted the procedural aspects of Press-Enterprise in Sixth Amendment 

cases, finding that “the principles enunciated in regard to the government’s 

attempts to prevent the disclosure of matters in the name of ‘security’ are 

applicable to the ‘public trial’ aspects of the Sixth Amendment . . .’” 135 

Soon after the Supreme Court’s recognition of a separate First Amendment 

right of access to criminal trials in Article III courts, the Court of Military 

Appeals followed suit for courts-martial. In United States v. Hershey, a United 

States Army Staff Sergeant was accused of various crimes relating to alleged 

sexual abuse of his thirteen-year-old daughter. Before testimony commenced, 

trial counsel observed that the complaining witness, who was 

only thirteen, would be “somewhat timid or a little bit uncomfortable” 

having to recount her experiences with her father. He requested that the 

courtroom be closed during her testimony, and the military judge agreed, 

ordering the bailiff to escort the few spectators (who all were court personnel) 

out of the courtroom. Following the secret testimony, the Staff 

Sergeant was convicted and sentenced to five years confinement, forfeiture 

of all pay and allowances, a reduction in rank, and a bad-conduct 

discharge. 136 

132. United States v. Hershey, 20 M.J. 433 (C.M.A. 1985). 

133. United States ex rel. Toth v. Quarles, 350 U.S. 11, 21-22 (1955). 

134. See Hershey, 20 M.J. at 435. See also United States v. Brown, (C.M.A. 1956), overruled 

by United States v. Grunden, 2 M.J. 116, 120 n.3 (C.M.A. 1977), rev. denied, 6 M.J. 7 

(C.M.A. 1978) (overruling Brown to the extent that it implies an exception to the right to a 

public trial); United States v. Terry, 52 M.J. 574 (N-M.C.C.A. 1999); ABC, Inc. v. Powell, 47 

M.J. 363 (C.A.A.F. 1997) (Article 32 hearing). 

135. See Grunden, 2 M.J. at 122 n.11. 

136. See Hershey, 20 M.J. at 434-36. 


128


Hershey appealed his case, ultimately reaching the Court of Military 

Appeals. The issue that the military court agreed to consider was whether 

the defendant had been deprived of his constitutional right to a public 

trial. The court found there to be a constitutional right to a public trial, 

grounded not only in the Sixth Amendment, but also in the First Amendment. 

Relying explicitly on Richmond Newspapers and Waller v. Georgia, 137 

the Court of Military Appeals held that the “stringent” test set forth in 

Press-Enterprise Co. applies equally to courts-martial. 138 

Since Hershey, military courts have recognized the First Amendment 

right of access to court-martial proceedings, including preliminary hearings 

under Article 32, and that the press and public have standing to 

exercise those rights. Most recently, in a challenge to closure of a preliminary 

hearing by a media coalition, the United States Court of Appeals for 

the Armed Forces held that all of the substantive and procedural rights of 

access to criminal proceedings articulated by the Supreme Court in Richmond 

Newspapers, Globe Newspaper Co., and Press-Enterprise Co. apply to 

courts-martial. 139 Other cases recognize the right, as well. 140 

The existence of a public right of access to courts-martial is reflected 

in The Manual for Courts-Martial, which generally provides that “courtsmartial 

shall be open to the public,” 141 and adds that “‘public’ includes 

both members of both the military and civilian communities.” 142 Similarly, 

the Rules for Court Martial (“R.C.M.”) state that “[o]pening courtsmartial 

to public scrutiny reduces the chance of arbitrary or capricious 

decisions and enhances public confidence in the court-martial process.” 143 

As the Court of Military Appeals has stated, “[p]ublic confidence in mat- 

137. 467 U.S. 39 (1984). In Waller, the Supreme Court applied the same test to a defendant’s 

Sixth Amendment objection to a closed suppression hearing as had been applied in First 

Amendment cases, observing that “the explicit Sixth Amendment right of the accused is no less 

protective of a public trial than the implicit First Amendment right of the press and public.” Id. 

at 46. 

138. See Hershey, 20 M.J. at 437. Despite finding constitutional infirmities with the trial 

court’s approach, the C.M.A. upheld the conviction because “[t]here is no evidence that 

members of the public were actually barred entry during the short period when the bailiff was 

asked to prohibit spectators from entering the courtroom.” Id. at 438. 

139. See A B C, 47 M.J. at 365. 

140. See, e.g. , United States v. Scott, 48 M.J. 663, 665 (Army Ct. Crim. App. 1998). 

141. Rules for Courts-Martial (hereinafter “R.C.M.”), 806(a) (2000), in M ANUAL FOR C OURTS- 

M ARTIAL, UNITED STATES (2000). 

142. Id. 

143. R.C.M. 806(b), Discussion 8; see also Scott, 48 M.J. at 664. 


129


ters of military justice would quickly erode if courts-martial were arbitrarily 

closed to the public.” 144 

Regardless of whether the challenge arises under the Sixth or First 

Amendment, the same standard applies to closure of courts-martial. 145 “The 

authority to exclude [the public] should be cautiously exercised, and the 

right of the accused to a trial completely open to the public must be 

weighed against the public policy considerations justifying exclusion.” 146 

As outlined by the United States Court of Military Appeals, parroting 

Press-Enterprise Co., “the party seeking closure must advance an overriding 

interest that is likely to be prejudiced; the closure must be narrowly tailored 

to protect that interest; the trial court must consider reasonable 

alternatives to closure; and [the trial court] must make adequate findings 

supporting the closure to aid in review.” 147 Discretion to determine if an 

“overriding interest” justifies closure rests with the military judge. 148 

Whether an accused criminal is prosecuted in a traditional, Article III 

court or in a court-martial, history and law lead to the same result. The 

public and the press have an independent constitutional right of access 

to observe the proceedings, one that can only be overcome by a compelling 

need in circumstances where there are no alternatives. This test, 

when applied in recent experience, has proven extraordinarily difficult 

to meet. 

IV. EXPERIENCE IN TERRORIST 

AND NATIONAL SECURITY PROSECUTIONS 

One of the more appealing justifications offered in support of military 

tribunals is the importance of protecting classified and sensitive national 

security information. Although sensible in theory, history provides 

compelling evidence of the government’s ability to conduct proceedings 

involving classified information and acts of terrorism in open courts. Previous 

terrorist acts—perpetrated on U.S. soil and against U.S. interests or 

144. United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987). 

145. United States v. Hershey, 20 M.J. 433, 436 (C.M.A. 1985). 

146. United States v. Grunden, 2 M.J. 116, 121 (C.M.A. 1977). 

147. See Hershey, 20 M.J. at 436 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 

(1984). See also, United States v. Anderson, 46 M.J. 728, 729 (C.C.A. 1997), rev. denied, 48 

M.J. 22 (C.A.A.F. 1997) (“[T]he military judge placed no justification on the record for her 

actions. Consequently, she abused her discretion in closing the court-martial.”). 

148. ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997). 


130


citizens overseas—have been successfully prosecuted in federal courts time 

after time, with the public in attendance. In the majority of these cases, 

some of which involved activities akin to those perpetrated on September 

11, procedures already established and in place for dealing with classified 

information 149 were applied successfully. In the military context, courts 

have mandated the same process. While some recent cases included an 

occasional sealed document or closed hearing, generally after the Press- 

Enterprise test or its equivalent was found to have been met, the trials 

themselves were open to the public with no significant adverse consequences. 

A. Grunden & Lonetree—U.S. Courts-Martial 

Historically, the most common circumstance under which courts-martial 

have been closed is when classified information is introduced at trial. 150 

But in such cases, “even when the interest sought to be protected is national 

security, the Government must demonstrate a compelling need to 

exclude the public from a court-martial over defense objection, and the 

mere utterance by trial counsel of a conclusion is not sufficient.” 151 

In United States v. Grunden, 152 for example, a serviceman had conversations 

with three individuals he believed to be foreign agents, but who 

really were U.S. government investigators, and attempted to deliver classified 

information to them. 153 When the court-martial convened, because 

of the national security issues involved, the trial judge required all courtroom 

personnel to have security clearances, and, over the objection of 

the defense, he closed the courtroom to observers during testimony regarding 

the espionage charge. 154 Grunden was convicted of two specifications 

of failing to report contact with persons believed by him to be agents 

of governments hostile to the United States and one specification of attempted 

espionage. 155 

On appeal, the defense argued that the closure of the courtroom vio- 

149. See Classified Information Procedure Act, 18 U.S.C. app. 3 § 1, discussed infra Section 

VI. 

150. See R. M IL.EVID. 505(j) (providing for introduction of classified information into evidence). 

151. See Hershey, 20 M.J. at 436 (citing Grunden, 2 M.J. at 120 n.3). 

152. 2 M.J. 116 

153. Id . at 119. 

154. Id . at 120. 

155. Id. 


131


lated his right to a public trial. 156 The government, on the other hand, 

argued that there was no harm since 60 percent of the entire record of the 

proceeding, including pretrial proceedings, was not closed. 157 Rejecting 

the formulaic approach advocated by the government, the Court of Military 

Appeals held that “[t]he propriety or impropriety of the exclusion of 

the public from all or part of a trial cannot, as attempted by the government 

in this case, be reduced to solution by mathematical formulas. The 

logic and rationale governing the exclusion, not mere percentages of the 

total pages of the record, must be dispositive.” 158 

In the words of the court: 

The blanket exclusion of the spectators from all or most of a 

trial, such as in the present case, has not been approved by this 

Court, nor could it be absent a compelling showing that such 

was necessary to prevent the disclosure of classified information. 

The simple utilization of the terms “security” or “military 

necessity” cannot be the talisman in whose presence the protections 

of the Sixth Amendment and its guarantee to a public 

trial must vanish. Unless an appropriate balancing test is employed 

with examination and analysis of the need for, and the 

scope of any suggested exclusion, the result is, as here, unsupportable. 

159 

The majority then went on to state the procedure and test that courtsmartial 

should use to balance a defendant’s right to a public trial against 

156. As a defendant, Grunden based his argument on his Sixth Amendment right to a public 

trial. However, the procedural and substantive requirements that must be overcome to close 

a proceeding in the face of a Sixth Amendment challenge are no different than those required 

in a First Amendment challenge. See Hershey, 20 M.J. 433. 

157. See Grunden, 2 M.J. at 120. 

158. Id. at 120 n.2. The majority said that, 

“[u]nfortunately what both the dissenting judge and the government have failed to do 

is analyze what portions of the record are involved in this question. The ‘over 60 

percent’ question which has been bandied about entails the preliminary procedural 

matters the entire trial on the merits as to the charge of which the appellant was 

acquitted, final instructions, and the sentencing phase of the trial. The fact that these 

portions of the trial were open to the public can have no bearing on the resolution of 

the propriety of the judge’s exclusion of the public from virtually the entire trial as to 

the espionage matters.” 

Id. at 120. 

159. Id. at 121 (footnotes omitted). 


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the prosecution’s request that a proceeding be closed to protect classified 

information. 

It is our decision that the balancing test employed by a trial 

judge in instances involving the possible divulgence of classified 

material should be as follows. His initial task is to determine 

whether the perceived need urged as grounds for the exclusion 

of the public is of sufficient magnitude so as to outweigh “the 

danger of a miscarriage of justice which may attend judicial 

proceedings carried out in even partial secrecy.” This may be 

best achieved by conducting a preliminary hearing which is closed 

to the public at which time the government must demonstrate 

that it has met the heavy burden of justifying the imposition 

of restraints on this constitutional right. The prosecution to 

meet this heavy burden must demonstrate the classified nature, 

if any, of the materials in question. It must then delineate those 

portions of its case which will involve these materials. 160 

With the procedural framework firmly in place after Grunden, the 

military has successfully conducted public trials involving classified information. 

For example, the highly publicized court-martial of Clayton 

Lonetree was, for the most part, open to the public. Lonetree was a guard 

at the United States embassy in Moscow who fell in love with a Russian 

woman. Seemingly unaware that he had been targeted by Moscow as a 

potential source of information and believing that she would keep his 

confidence, he passed classified information to his Russian girlfriend, who 

in fact was working for the KGB. 161 

During Lonetree’s trial, which necessarily involved some classified 

information, the trial judge found that there was a compelling need to 

protect certain classified information from disclosure, and closed the courtroom 

for the testimony of certain witnesses. The closed portions of the 

proceeding included witness testimony regarding classified information, 

as well as certain intelligence sources and methods. 162 On appeal, the Navy- 

160. Id. at 121-22 (citation and footnote omitted). See also United States v. Travers, 25 M.J. 

61 (C.M.A. 1987) (upholding trial judge’s refusal to close courtroom during sentencing phase 

to avoid public revelation of the fact that a proposed witness was an informant for the 

Criminal Investigation Command because the prosecutor neglected to take steps to present the 

witness’ testimony in another way, such as by affidavit, which would have limited exposure 

of his CID information status). 

161. United States v. Lonetree, 31 M.J. 849 (C.M.R. 1990). 

162. Id . at 853. 


133


Marine Corps Court of Military Review affirmed the limited closure, pointing 

out that the military judge had followed proper procedure and had made 

appropriate findings on the record, and because it would be impractical 

to close only portions of the witness testimony. 163 

B. Hijackings 

Previous prosecutions of airline hijackers provide a chilling factual 

parallel to the potential prosecution of individuals involved in the September 

11 attacks. Despite the fact that some of these incidents took place 

overseas and did not involve domestic airlines, the United States government 

nonetheless prosecuted the hijackers in public trials in federal courtrooms. 

For example, on June 11, 1985, Fawaz Yunis and four other Lebanese 

Shiite Moslems took control of the cockpit of a Royal Jordanian Airlines 

flight shortly before it was scheduled to depart from Beirut, Lebanon. 

Seeking to go to Tunis, where an Arab League conference was underway, 

they forced the pilot to take off. Unfortunately for them, authorities in 

Tunis blocked the airport runway, and following stops in Sicily and Cyprus, 

the aircraft returned to Beirut. After refueling, the plane took off again, 

this time heading for Syria. They were once again turned away and returned 

to Beirut. Left with few options, they released the passengers (which 

included two Americans), held a press conference, and then blew up the 

plane and fled. 

An investigation by United States authorities including the FBI and 

CIA, presumably conducted overseas using classified intelligence gathering 

techniques and sources, identified Yunis as the “probable” leader of 

the hijackers. Various U.S. civilian and military agencies, including the 

FBI, developed a plan and plotted Yunis’s capture. Undercover agents lured 

Yunis onto a yacht in the Mediterranean with promises of a drug deal 

and a party, and arrested him once the boat entered international waters. 

He was transferred to a Navy munitions ship and ultimately transported 

to the United States to stand trial under a then-new anti-terrorism statute 

that authorizes United States courts to try foreign nationals who take 

Americans hostage anywhere in the world. 164 The trial, which was billed 

163. Id. at 854. (“To require a military judge to make specific findings each time a series of 

questions is to be asked of a witness, after the judge had already determined the responses 

were classified, would be to create unnecessary and disruptive bifurcation of the trial and 

constitute an exercise in redundancy.”). 

164. See 18 U.S.C. § 1203. 


134


by some as “the United States’ first international terrorism trial,” 165 was 

open to the public. Yunis admitted participation in the hijacking, but 

argued that he was merely obeying military orders issued to him by Lebanon’s 

Amal Militia. Unconvinced, the jury convicted him of conspiracy, hostage 

taking, and air piracy. 166 He was sentenced to thirty years in prison. 167 

Successful prosecution in open courtrooms of hijackers continued 

throughout the 1990s. On November 23, 1985, a group of Palestinians 

including Omar Mohammed Ali Rezaq hijacked an Air Egypt flight shortly 

after takeoff from Athens, ordering the pilot to fly to Malta. Following a 

gun battle with the air marshal stationed on the airplane that resulted in 

the death of one of Rezaq’s fellow hijackers, Rezaq took charge of the 

operation. Upon arrival in Malta, Rezaq moved the Israeli and U.S. passengers 

to the front of the plane and released some of the others. When 

the authorities in Malta refused to refuel the plane, Rezaq announced 

that he would shoot a passenger every fifteen minutes until fuel was provided. 

He made good on his threat, shooting two Israelis and three Americans, 

including a U.S. Air Force employee who was killed. A little less than a day 

after the standoff began, Egyptian commandos stormed the aircraft, setting 

off an explosive device. The ensuing fire killed fifty-seven passengers 

and all of the other hijackers. 

Rezaq pled guilty to murder, attempted murder, and hostage taking 

in Malta, agreeing to a sentence of twenty-five years in prison. Seven 

years later, for reasons that remain unclear, Rezaq was released. En route 

from Malta to Sudan, Rezaq stopped in Nigeria and was taken into custody 

by local authorities. He was quickly handed over to FBI agents, who 

whisked him away to the United States on a waiting aircraft. He was convicted 

in a public trial of the single count with which he had been charged 

and sentenced to life in prison. 168 

Despite the necessary involvement of United States intelligence agencies 

in investigating these crimes, at no time does anyone appear to have 

considered holding anything other than a public trial. The government 

never wavered from that approach, even when faced with a situation where 

165. See Julie Brienza, Lebanese Terrorist Sentenced to 30 Years,U.P.I. W ASH. N EWS, Oct. 4, 

1989. 

166. See United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991). 

167. See, e.g., Tracy Thompson, Hijacker Gets 30-Year Prison Term; Case Was First to Involve 

Air Piracy Overseas,W ASH.POST, Oct. 5, 1989, at A39. 

168. See United States v. Rezaq, 134 F.2d 1121 (D.C. Cir. 1998); Hijacker Gets Life: Sentenced 

for 1985 Air Piracy in Malta,N EWSDAY, Oct. 8, 1996, at A17. 


135


sensitive classified information undoubtedly would be involved in the 

trial. In February 1964, Reinaldo Juan Lopez-Lima and his partner, Enrique 

Castillo-Hernandez, brandishing guns, forced the pilot of a Piper Apache 

airplane to fly them from Monroe County, Florida to Cuba. Landing in 

Cuba, Lopez-Lima did not receive the welcome he expected. He was tossed 

in jail for illegal entry, where he remained until 1987 when he returned to 

the United States. Two years later, the State Department attempted to 

recruit Lopez-Lima to supply information about Cuba, at which point an 

outstanding 1969 indictment from the hijacking incident was discovered. 

Instead of an informer, Lopez-Lima became a criminal defendant. 

Facing multiple charges and significant penalties, Lopez-Lima set out 

to defend himself by arguing that the CIA had sanctioned the hijacking. 

He claimed that he and his partner were planning to pose as defectors 

from the Cuban exile community who sought to return to Cuba. Once 

there, they were to pursue efforts to destabilize Castro’s regime. The CIA, 

for its part, admitted that Lopez-Lima did participate in covert activities 

against Castro on behalf of the United States, but claimed that the Agency 

had broken ties prior to the hijacking. 169 To prove his case, the defendant 

announced that he was going to rely on classified information in U.S. 

government files. District Judge Ryskamp, following proper procedure, 

considered each category of classified information that Lopez-Lima sought 

to introduce in light of its relevance to the defenses proffered and ruled 

that some of the evidence was admissible. The trial never took place, because 

the Court later threw out the case on the grounds that Lopez-Lima’s 

right to a speedy trial had been violated, but if it had gone forward, it 

would have been open to the public. 170 

C. United States v. Noriega 

The expected complexity of the terrorist cases also does not weigh 

against a public trial. On February 4, 1988, the Commander of the Panamanian 

Defense Forces, Manuel Antonio Noriega, was indicted in a twelvecount 

indictment by a federal grand jury in the Southern District of Florida 

on various drug-related charges. The breadth and gravity of the charges 

were immense. Two RICO counts, encompassing twenty-three pages of 

the indictment, alleged a five-year conspiracy by high ranking members 

of the government of Panama and the alleged leader of Columbia’s Medellin 

169. See Lauren Weiner, Hijack Charge Erased, Cuban Must Face INS, WASH.TIMES,June 25, 

1990, at A9. 

170. United States v. Lopez-Lima, 738 F. Supp. 1404 (S.D.Fla. 1990). 


136


drug cartel. The allegations related to, among other things, ties between 

Noriega and Cuban President Fidel Castro; the Iran-Contra scheme; manufacture 

and distribution of cocaine; Panamanian political corruption; and 

international money laundering. 171 

Seventeen months after the indictment was handed down, United 

States armed forces descended on Panama, ultimately defeating Noriega’s 

forces and taking him into custody. Noriega was transported to Miami, 

where he stood trial on the pending charges. 

The scope and complexity of the trial were acknowledged by the court 

when it granted an unusual “ends of justice” continuance, extending the 

time for pre-trial matters without violating the defendant’s speedy trial rights. 172 

Noriega’s co-defendants sought to sever their trials on the grounds that 

the “excessive and inflammatory media publicity surrounding Noriega … 

will result in guilt by association.” 173 

The trial included testimony from a parade of government witnesses 

and thousands of pages of documentary evidence relating to Noriega’s 

alleged agreement with the Medellin Cartel to transport substantial amounts 

of cocaine through Panama to the United States. Details were provided 

about meetings Noriega and his associates had with Cartel leadership throughout 

Central and South America and the payment arrangements. “Secret” 

bank accounts opened in the Noriega’s name and the names of his family 

members at the Bank of Credit and Commerce International (BCCI) were 

identified, and specific transactions involving large cash deposits were 

revealed. It goes without saying that this type of detailed evidence of 

overseas drug trafficking activity was not acquired through open, unclassified 

maneuvers. 

For his part, Noriega argued at trial that his subordinates had engaged 

in these activities without his knowledge. As part of his defense, 

Noriega sought and was permitted to introduce evidence of payments made 

to him by the United States for intelligence work. Although he wanted to 

introduce additional classified details, the district court ruled that those 

details were inadmissible because the probative value of those details was 

substantially outweighed by its tendency to confuse the issues. After a 

seven-month trial, on April 9, 1992, Noriega was convicted on eight of 

the twelve counts and sentenced to 40 years imprisonment, which later 

was reduced to 30 years. 

171. United States v. Noriega, 746 F. Supp. 1548, 1551, 1553 (S.D.Fla. 1990). 

172. Id. at 1559. 

173. Id. 


137


During the sentencing phase of the trial, several current and former 

United States officials testified on Noriega’s behalf. The former CIA Chief 

of Station in Panama City described how the General assisted the United 

States. A U.S. Air Force Colonel who worked with the Southern Command 

in Panama testified that Noriega had provided assistance in Chile, 

Salvador, the Dominican Republic, and Honduras. And the United States 

Ambassador to Panama described Noriega as an “asset” that former CIA 

Director William Casey considered to be a “protégé.” 174 

Despite the intricacy and sensitivity of the underlying issues, the trial 

was open and the public was able “to participate in and serve as a check 

upon the judicial process ….” 175 Acknowledging the importance of an open 

trial in a “controversial” case such as this one, the court specifically “sought 

to make public all aspects of the[] proceedings to the extent legally permissible.” 

176 The 11 th Circuit upheld the conviction, and on April 6, 1998, 

the United States Supreme Court declined to hear the case. 177 

D. Timothy McVeigh 

Until September 11, 2001, the most devastating act of terrorism and 

mass murder ever committed on U.S. soil was the bombing of the Alfred P. 

Murrah federal building in Oklahoma City on April 19, 1995. 178 One-hundred 

sixty-eight people were killed, including a number of children, and 

hundreds of others were injured. In addition, the State of Oklahoma estimated 

the cost of the incident to be $651,594,000. 179 Following an intense 

effort by law enforcement personnel involving a multitude of govern- 

174. United States v. Noriega, 40 F. Supp. 2d 1378, 1380 (S.D.Fla. 1999). 

175. United States v. Noriega, 752 F. Supp. 1037, 1044 (S.D.Fla. 1990). 

176. Id . The Noriega court also wenty down an unusual tangent when faced with a difficult 

and relatively novel free speech issue. CNN had obtained copies of audiotapes made by 

officials at the Metropolitan Correctional Center of conversations between Noriega and his 

attorney. Noriega sought and obtained a prior restraint prohibiting CNN from broadcasting 

the tapes. See Id. at 1038-39. After the 11 th Circuit upheld the district court’s injunction 

pending an in camera review of the contents of the tapes and a great deal of publicity, the 

district court concluded that the information on the tapes was not sufficient for Noriega to 

meet the heavy burden imposed on him by the Constitution to justify a prior restraint of 

speech. Id. at 1045. 

177. See United States v. Noriega, 117 F.3d 1206 (11 th Cir. 1997); United States v. Noriega, 

40 F. Supp. 2d 1378, 1379 (S.D.Fla. 1999). 

178. United States v. McVeigh, 918 F. Supp. 1467, 1471 (W.D. Ok. 1996) (quoting Oklahoma 

Governor Frank Keeting). 

179. Id. at 1469. 


138


ment agencies, Timothy McVeigh was arrested and charged with a variety 

of crimes, including using a bomb as a weapon of mass destruction and 

first degree murder. 

From the outset, publicity was pervasive and intense. The whole nation 

was watching. Massive amounts of secret government materials were 

involved in the case, including, for example, more than 10,000 FBI interview 

reports. 180 As part of his defense, McVeigh’s counsel posited several 

hypotheses concerning the bombing which, if true, might have 

resulted in an acquittal. They believed that information to support those 

hypotheses was in the hands of various government agencies, including 

those who routinely traffic in classified and top secret material. 

McVeigh’s counsel argued that the Department of Justice had failed to 

complete a full investigation, ignoring leads available in the records of 

the CIA, NSA, and Defense Intelligence Agency. They therefore sought 

discovery from these agencies of voluminous records, many of which were 

classified. 

Despite the myriad of complications, McVeigh nonetheless received a 

public trial. At the pre-trial stage, the court meticulously addressed each 

issue when public access to additional information was sought. In the 

first instance, the news media sought access to a variety of documents 

that had been filed under seal. In granting partial access, Judge Matsch 

specifically articulated the importance of open criminal trials. Extensively 

quoting Chief Justice Berger, he stressed the “crucial prophylactic aspects” 

of public trials and the vital importance of “‘satisfy[ing] the appearance 

of justice’ … by allowing people to observe it.” 181 At the same time, Judge 

Matsch carefully identified and articulated certain circumstances where 

there is no tradition of access and where secrecy is necessary. Examples 

include documents filed under the statutory provision requiring court 

authorization for certain publicly-funded defense expenditures that would 

prematurely reveal defense investigation and strategy. 182 

Balancing these interests, Judge Matsch condemned “routine[] seal[ing] 

without due regard for any particular need for secrecy” and granted access 

to some of the documents sought. 183 With respect to those records 

that were kept sealed, Judge Matsch emphasized the pre-trial status of the 

180. United States v. McVeigh, 918 F. Supp. 1452, 1464 (W.D. Ok. 1996). 

181. Id. at 1456 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570-72 

(1980)). 

182. Id. at 1465. 

183. Id. at 1466. 


139


proceedings, pointing out that the question was not whether, but when, 

those records would be made public. 184 

The trial itself, of course, was open to the public. 185 Judge Matsch 

went to extreme lengths to address the unique issues presented by this 

high-profile case without closing the proceedings. He erected a custombuilt 

wall between the jury and spectators. 186 He scrambled juror numbers 

so that the public could not match individual jurors with the answers 

given to questions during voir dire and kept the identity of individual 

jurors confidential. The voir dire also was sealed. 187 Each of these actions 

was challenged by a coalition of 70 press representatives at the time, but 

citing juror safety and privacy, Judge Matsch refused to budge. 

At the same time, once the jury was empanelled, the Court went to 

great lengths to ensure that the trial was not only open, but also accessible 

to every member of the news media who wanted to cover it. In the 

words of Judge Matsch: 

Half the public seating has been reserved for those who obtained 

press credentials. The trial exhibits are shown on a television 

type monitor to those in the public area as they are introduced 

and discussed by the witnesses. Trial transcripts and 

copies of the exhibits admitted are provided at the conclusion 

of each trial day. The proceedings are being monitored by sound 

transmission to an auxiliary courtroom and to a pressroom in 

an adjacent building. Part of the plaza in front of the courthouse 

has been set aside for exclusive use of news organizations 

for telecasting and broadcasting by reporters and commentators 

observing the trial. 188 

184. Like many cases involving complicated discovery disputes over classified or confidential 

information, certain pre-trial proceedings were conducted in camera. These closed hearings 

were rare, and expressly limited to circumstances when the presiding judge had determined 

closure was necessary to preserve the defendant’s right to a fair trial. Indeed, in at least one 

instance, the Court held multiple hearings on the same issues so that any portion of the 

discussion and debate that could be open was. See, e.g. , United States v. McVeigh, 954 F. 

Supp. 1441, 1444 (D.Colo. 1997). 

185. Id. at 1465; see also United States v. McVeigh, 931 F. Supp. 756, 757 (D.Colo. 1996) 

(quoting protective order which provided that “such materials may be disclosed as necessary: 

(a) during court proceedings, including trial, ...”). 

186. See Judge Refuses to Remove Wall Shielding Bombing Jury,L.A. TIMES, Apr. 27, 1997, at 

A14. 

187. Id .; Iver Peterson, Press Seeks an End to Trial’s Secrecy,N.Y. T IMES, Apr. 25, 1997, at A24. 

188. United States v. McVeigh, 964 F. Supp. 313, 316 (D. Colo. 1997). 


140


Victims’ relatives also were provided special access, through a video feed 

that reached as far as Oklahoma City. 189 

The publicity surrounding the case, both prior to and during the 

trial, was enormous. The pervasive, detailed coverage nationally and in 

Oklahoma were documented meticulously in Judge Matsch’s decision ordering 

a change of venue from Oklahoma to Colorado. 190 Yet, no consideration 

was ever given to closing the courtroom during the trial. “Crimes 

are prosecuted publicly. The Constitution commands it.” 191 

E. 1993 World Trade Center Bombing Cases 

Almost immediately, the events of September 11, 2001, reminded New 

Yorkers and those around the country of another attack on the World 

Trade Center nearly ten years earlier. On February 26, 1993, a group of 

Middle Eastern men trained at a terrorist camp on the Afghanistan-Pakistan 

border drove a rented Ryder van carrying a homemade bomb into 

the below-ground parking lot on the B-2 level of the World Trade Center 

Complex. At 12:18 p.m., the bomb exploded, killing six people, injuring 

hundreds of others, and causing hundreds of millions of dollars in damage. 

A thorough investigation—aided by one of the attackers inexplicably 

returning to the Ryder truck rental agency to claim his deposit—ultimately 

led to a multitude of federal charges against sixteen individuals that were 

detailed initially in a 150-page indictment. Each was tried and convicted 

in two separate public trials in the United States District Court for the 

Southern District of New York. 192 

The first trial presided over by Judge Duffy involved six defendants 

charged with multiple offenses relating directly to the bombing of the 

World Trade Center. “Smothering” and “stringent” security was summoned 

to ensure the safety of trial participants and spectators. Precautions included 

hundreds of extra police officers outside the courthouse, dozens of 

armed federal marshals inside the courthouse, a separate metal detector at 

the courtroom entrance, sealing windows, and an extra layer of screening 

for visitors. 193 Despite all of the concerns and the need to establish spe- 

189. See Judge Refuses to Remove Wall Shielding Bombing Jury,L. A. T IMES, at A14. 

190. United States v. McVeigh, 918 F. Supp. 1467 (D. Colo. 1996). 

191. United States v. McVeigh, 955 F. Supp. 1281, 1282 (D. Colo. 1997). 

192. See United States v. Salameh, 152 F.3d 88, 105-08 (2d Cir. 1998); United States v. 

Rahman, 189 F.3d 88, 102-05 (2d Cir. 1999). 

193. See Scott Ladd, Security Tight Around Courthouse,N EWSDAY, Aug. 26, 1993, City Edition 

at 6; William K. Rashbaum and Scott Ladd, Secured for Trouble; A tight net for bombing trial, 


141


cific protocols to screen visitors, which included requiring spectators to 

sign in and present identification, no suggestion was made to close the 

trial. To the contrary, the specific courtroom for the trial was chosen in 

part because of its size—it holds approximately 150 spectators. Twentyfive 

percent of the public seating in the courtroom was reserved for journalists 

covering the trial. 194 

Other efforts to accommodate public interest in the proceedings also 

were made. During jury selection, Judge Duffy conducted interviews with 

prospective jurors in private when asking them about their “personal” 

reasons for not wanting to be on the jury. These closed proceedings were 

not secret, however. Although the individual jurors were referred to only 

by their numbers to ensure anonymity, at the end of the day, transcripts 

of the private sessions were released to the public. 195 

The trial lasted for five months and involved over 1,000 exhibits and 

200 witnesses. The government meticulously took the jury and spectators 

in the courtroom through every aspect of the preparation and attack. 

Evidence was presented showing that two of the defendants met at a terrorist 

training camp know as “Camp Khaldan,” where they learned to construct 

homemade explosive devices and hatched a plot to use their newly acquired 

skills to attack targets in the United States. Testimony and documents established 

how and when those defendants entered the United States and 

recruited the rest of their team. Step by step, the government explained 

the execution of the plan, from the source of financing, to the acquisition 

of the ingredients for a bomb, to its assembly and detonation. 196 

The evidence presented included a videotape and notebooks containing 

instructions on how to make explosives and timing devices; a document 

encouraging acts of terrorism against the enemies of Islam entitled, 

“Facing the enemies of God/terrorism is a religious duty and force is necessary;” 

a book containing instructions on how to demolish buildings 

with explosives; and homemade nitroglycerine and other bomb making 

ingredients seized from a Jersey City storage facility used by the defen- 

N EWSDAY, Sept. 9, 1993, City Edition at 8. Some criticized security precautions as discouraging 

Arab reporters and spectators from attending the trial. See Ron Scherer, Muslims Watch N.Y. 

Trial, But Only From a Distance,THE CHRISTIAN SCIENCE MONITOR, Dec. 2, 1993, at 2. 

194. See Scott Ladd, Security Tight Around Courthouse,at6. 

195. See Jury selection begins in N.Y. bombing trial,H OUSTON CHRONICLE,Sept. 15, 1993, at A4. 

196. See Salameh, 152 F.3d at 107-08; Robert L. Jackson & John J. Goldman, 4 Found Guilty 

in Plot to Bomb N.Y. Trade Center; Terrorism: Muslim Extremists Are Convicted a Year After 

the Blast that Killed Six and Injured 1,000. Verdict Is Met with Angry Outbursts in Manhattan 

Courtroom,LOS ANGELES TIMES March 5, 1994, at A1. 


142


dants. 197 The government also presented evidence about the impact of the 

attack through testimony of rescue workers and photographs of some of 

the victims. 198 All of this evidence was presented in open court, with the 

public watching. All of the defendants were convicted of multiple crimes 

and sentenced to in excess of 100 years in prison. 199 

The second trial, presided over by Judge Mukasey, involved a complex 

web of accusations that included but were by no means limited to 

rendering assistance to those who bombed the World Trade Center. In 

that trial, ten defendants were accused of conspiring to commit a slew of 

offenses in the course of a campaign to conduct “urban terrorism.” In 

addition to assisting those who bombed the World Trade Center, the accusations 

against these defendants ranged from possession of fraudulent 

foreign passports, to planning to bomb bridges and tunnels in New York 

City and murder the President of Egypt, to killing Rabbi Meir Kahane. 200 

The trial took nine months, also under heavy security while remaining 

open to the public, in the federal courthouse in Manhattan. 201 The 

comprehensive presentation by the government revealed a complicated, 

wide-ranging conspiracy to carry out “jihad” against those the defendants 

had identified as enemies of Islam, including the United States and 

the secular Egyptian government. Sheik Omar Ahmad Ali Abdel Rahman, 

a blind Islamic scholar and cleric, was presented as the leader of the conspiracy. 

Evidence was adduced of his overall supervision and direction, 

sometimes through dispensing a “fatwa,” or religious opinion that a particular 

course of conduct was holy and in furtherance of jihad. The formation of 

Rahman’s jihad army, made up of small “divisions” and “battalions,” 

was detailed, along with numerous specific actions taken by its members. 202 

The breadth of the conspiracy resulted in a six-month long presentation 

by the government. The shooting of Rabbi Meir Kahane, which could 

197. Id. at 110, 112. 

198. Id. at 122. 

199. See United States v. Salameh, 261 F.3d 271, 274-75 (2d Cir. 2001). 

200. See United States v. Rahman, 189 F.3d 88, 103-04 (2d Cir. 1999). 

201. Security precautions included police sharpshooters on the roof of the courthouse, a 

score of federal marshals inside the courtroom, and daily patrols by a bomb-sniffing dog. 

Robert L. Jackson, Terror Plot Trial Opens for Sheik, 11 Followers; Courts: Prosecution Paints 

Picture of Radicals Bent on Vast Destruction in N.Y. Defense Portrays Charges As Empty Talk, 

Religious Rhetoric,LOS ANGELES TIMES,Jan. 31, 1995, at A20; Sheik and nine others convicted in 

bomb plot; Holy war against U.S. charged; one is guilty of killing radical rabbi,THE BALTIMORE 

SU N, Oct. 2, 1995, at 1A. 

202. United States v. Rahman, 189 F.3d at 103-05. 


143


have been a trial itself, was described. Preparations and planning for the 

bombing of the World Trade Center and the Lincoln and Holland tunnels 

were meticulously detailed through documents and the government’s 

key witness at trial, an undercover informant named Emad Salem who 

had ingratiated himself with Rahman and was taken into the fold by the 

conspirators. 203 On the other side, the defendants called 71 witnesses over 

the course of two months. It was not, however, enough. Each defendant 

was convicted on various counts, with sentences ranging from 25 years 

to life. 204 

While there were minor skirmishes over access to a few specific documents 

and the Court’s efforts to limit prejudicial publicity in both cases, 

at no point did anyone suggest or even seem to consider that the proceedings 

be closed to the public. For example, at one point Judge Duffy sua 

sponte entered a gag order prohibiting counsel for all parties from publicly 

discussing the case. As Judge Duffy put it at the time: 

There will be no more statements [in the press, on TV, in radio, 

or in any other electronic media] issued by either side or their 

agents. The next time I pick up a paper and see a quotation from 

any of you, you had best be prepared to have some money. The 

first fine will be $200. Thereafter, the fines will be squared. 205 

The order was quickly vacated by the Second Circuit, which found it to 

be overly broad and unsupported by any findings that it was either necessary 

or the least restrictive alternative. 206 

In the second trial, Judge Mukasey received multiple motions challenging 

a series of protective orders that precluded disclosure of the contents 

of discovery materials produced by the government to defense counsel, 

including transcripts reflecting conversations recorded pursuant to 

wiretap orders and by a government informant. The tapes were made at 

his own behest by Salem, who apparently taped, among other things, 

some of his conversations with his FBI handlers. After the government 

learned of the tapes, it obtained them from Salem, had them transcribed, 

and disclosed any relevant portions to defense counsel. Despite the protective 

order, both Newsday and The New York Times obtained copies of 

203. Id. at 104-12. 

204. Id. at 111. 

205. See United States v. Salameh, 992 F.2d 445, 446 (2d Cir. 1993). 

206. See id. at 447. 


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the transcripts and published several stories summarizing and excerpting 

the tapes. 207 

In separate motions at different times, freelance writer Stephen L. 

Pope and cable channel New York One and CBS sought to vacate the 

protective order. Finding “a substantial likelihood that release of the tapes 

would have an impact not only on jury selection in this proceeding, but 

also on the ongoing prosecution in [the trial in front of Judge Duffy, 

which was underway at the time of the second motion], and on any grand 

jury investigation that may be in progress,” the Court refused to vacate 

the order. 208 In his opinion, however, Judge Mukasey made a point of 

limiting his order to the pre-trial phase of the proceeding: 

There is nothing in the … order that places these tapes permanently 

beyond the reach of intervenors and others. There is no 

reason why the tapes cannot be released either during the trial, if 

they are introduced in evidence, or after the trial if they are not. 209 

While a reasonable argument certainly can be made that Judge Mukasey’s 

refusal to vacate the original order was inappropriate given that the information 

already was in the public domain, even he did not attempt to 

extend the secrecy to the trial itself. 

Judge Mukasey used a similarly specific approach when dealing with 

the sealed portions of the trial transcript, consisting primarily of robing 

room conferences. In response to the Judge’s proposal to unseal nearly all 

of the transcript, the government argued that certain pages should remain 

sealed. In detailed findings, Judge Mukasey unsealed all of the pages 

of the transcript except for those which contained: confidential intelligence-gathering 

activities, information regarding safety of persons who 

have provided information to the government, information that could 

compromise ongoing investigations, information that could compromise 

the anonymity or privacy of jurors, prejudicial information to the defendant, 

and, confidential information disclosed by the government to which 

defendants were found to have no right of disclosure. 210 

Each of these categories of information obviously was involved in 

207. See In re Application of New York 1 News, No. S393Cr.181 (MBM), 1994 U.S. Dist. 

LEXIS 612, at *1-2 (S.D.N.Y. Jan. 15, 1994). 

208. Id.; United States v. Rahman, No. S393Cr.181 (MBM), 1993 U.S. Dist. LEXIS 15404 

(S.D.N.Y. Nov. 2, 1993). 

209. See In re Application of New York 1 News, 1994 U.S. Dist. LEXIS 612, at *9. 

210. See United States v. Rahman, No. S593Cr. 181(MBM), 1996 U.S. Dist. LEXIS 4968 

(S.D.N.Y. Apr. 17, 1996). 


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the prosecution of the terrorists involved in the 1993 World Trade Center 

bombing and other plots to commit terrorist acts against the United States, 

and each was effectively protected from public disclosure by established 

law and procedure applied to a public trial. There was no need to conduct 

those proceedings in secret. 

F. al Qaeda I 

On January 3, 2001, four alleged members of al Qaeda who had been 

jointly charged with Osama bin Laden in a far-reaching indictment went 

on trial in United States District Court for the Southern District of New 

York on a variety of charges arising out of their alleged participation in 

the 1988 bombings of two United States embassies in East Africa. Extraordinary 

security measures, among other things, resulted in unprecedented 

restrictions on public access to portions of the proceedings. Nonetheless, 

the trial itself was public, as any future trials of al Qaeda members or 

sympathizers also could be. 

The initial indictment charged fifteen individual defendants with 

267 discrete criminal offenses in furtherance of or complementing six conspiracies 

that had the same four objectives: (1) murder of U.S. nationals; 

(2) killing of U.S. military personnel stationed in Somalia and on the 

Saudi Arabian peninsula; (3) killing of U.S. nationals employed at the 

U.S. embassies in Kenya and Tanzania; and (4) concealment of their activities 

using a variety of means. 211 The conspiracy was alleged to span at 

least ten years, during which time al Qaeda organized, financed, inspired, 

and facilitated violent attacks against United States personnel and property 

abroad. Overt acts are alleged throughout the world—from Pakistan 

to the Sudan to the United Kingdom to California. Activities purportedly 

in furtherance of the conspiracy range from detonating explosives and 

transporting weapons to establishing businesses and lecturing. 212 

The pinnacle of the criminal enterprise, at the time, was the near 

simultaneous truck-bombing of the United States embassies in Nairobi, 

Kenya, and Dar es Salaam, Tanzania, on August 7, 1998. Two-hundred 

twenty-four people, including 12 Americans, were killed, and over 4,500 

others were injured. Trial preparation took over two years due to “the 

complexity of the charges, the voluminous discovery … the location of 

many relevant documents and witnesses in various countries around the 

world, special procedures for handling classified material, the need to translate 

211. See United States v. Bin Laden, 92 F. Supp. 2d 225, 227-28 (S.D.N.Y. 2000). 

212. Id. at 229, 234-35. 


146


literally thousands of documents, and the potential availability of capital 

punishment for some of the Defendants.” 213 During that time, the 

Court started down the path of what would end up being unparalleled 

limitations on public access to the proceedings, which nevertheless pale 

in comparison to the notion of a closed trial. Once again, this experience 

demonstrates the ability to successfully prosecute terrorists, specifically 

members of al Qaeda, without the need to resort to secret trials. 

Although no one knew it at the time, the clandestine court proceedings 

began with two secret plea agreements involving al Qaeda supporters. 

The first came to light when a docket sheet listed a scheduled hearing 

in “United States v. John Doe.” At the hearing in December 1998, which 

was open, the prosecutor reported to the court that plea negotiations 

were ongoing, without identifying the defendant. The defendant turned 

out to be Ali A. Mohamed, a former United States Army sergeant accused 

of conspiring with Osama bin Laden. 214 The subject of the second secret 

plea agreement was not identified until he testified at trial. Having secretly 

pled guilty to terrorism in 1996 and now cooperating with the FBI, 

he was referred to in all pre-trial documents and hearings as CS-1. 215 Judge 

Sand also closed the courtroom during at least two pre-trial hearings and 

sealed relevant documents in the al Qaeda case while defense counsel objected 

to the isolated, high-security jail conditions under which the defendants 

were being held. 216 Despite the closure of specific proceedings 

and documents, the bulk of the proceedings were conducted in open court. 

Moreover, recognizing the importance of open proceedings, early on the 

Court “set up a mechanism to ensure that non-sensitive court materials 

are released publicly as soon as practical.” 217 

Once the trial began, Judge Sand continued his efforts to balance 

the need for secrecy at times with the general principle that the trial must, 

except in extraordinary circumstances, be open to the public. Jury selection, 

for example, was closed, based on the Court’s determination that 

213. Id. at 232. 

214. See Benjamin Weiser, Reporter’s Notebook; Many Layers of Secrecy Shroud Terrorism 

Cases,N.Y. T IMES, Dec. 26, 1998, at B3. 

215. See Benjamin Weiser, Secret Witness Set to Testify In Terror Trial, N.Y. TIMES, Feb. 5, 

2001, at B1. 

216. See Benjamin Weiser, Reporter’s Notebook; Many Layers of Secrecy Shroud Terrorism 

Cases,N. Y. T IMES Dec. 26, 1998, at B3; Benjamin Weiser, Lawyers in Terror Case Say Client 

Access Was Blocked,N. Y. T IMES, Nov. 17, 2000, at B4. 

217. See Benjamin Weiser, Reporter’s Notebook; Many Layers of Secrecy Shroud Terrorism Cases. 


147


openness would discourage prospective jurors from being candid about 

their views of capital punishment. Judge Sand also ruled that the identity 

of the jurors would not be released at any time. 218 Similarly, when CS-1 

took the witness stand, Judge Sand ordered the courtroom artists not to 

sketch him for security reasons. 219 The Court closed a hearing on whether 

to suppress a statement made by one of the defendants, citing witness 

safety and the risk of inadvertent disclosure of information that could 

impact the fairness of the trial and national security. However, Judge Sand 

also stated that he would release a transcript of the proceedings the following 

morning, after both the government and defense had an opportunity 

to delete material pertaining to the safety of witnesses or the substance 

of the statement at issue. 220 

At least two other closed sessions were held during the six-month 

trial. One arose after a defendant sought to issue a subpoena to CNN. A 

short in camera discussion on the matter was closed to the public, although 

counsel for CNN was permitted to attend. 221 Another closed hearing 

dealt with issues relating to the penalty phase of the trial that arose 

prior to the jury returning with a verdict of guilt. 222 

The restricted access to many of these proceedings was challenged or 

criticized at the time, and legitimate questions can be raised about its 

constitutionality. Nonetheless, in the context of a trial that involved four 

months of testimony, 92 witnessed called by the prosecution, and over 

1,300 documents, 223 the actual limitations on access were minimal. When 

word came down that a verdict was in, “Within minutes, the rows in the 

218. See Benjamin Weiser, Jury Selection in Embassy Bombing Case Faces Hardship Challenges,N. 

Y. T IMES,Jan. 4, 2001, at B1. 

219. Benjamin Weiser, Ex-Aide to bin Laden Describes Terror Campaign Aimed at U.S.,N. Y. 

TIMES,Feb. 7, 2001, at A1. 

220. See Benjamin Weiser, Public Barred From Hearing in Bombing Trial,N.Y. TIMES, Jan. 

20, 2001, at B3. Citing Press-Enterprise and its progeny, counsel for The Times and other 

news media argued against the closure, asserting that closure to protect against accidental 

disclosure is at odds with the First Amendment. Rather, the media argued, the presumption of 

openness must carry the day unless and until a specific need for closure is demonstrated. The 

Court disagreed. Id. 

221. See Benjamin Weiser, Fear Stifled Defense Case, Lawyer Says in Terror Trial,N.Y. T IMES, 

Apr. 17, 2001, at B2. 

222. See Benjamin Weiser, 2 Strategies in Pleas for Life in Bombing Trial,N.Y. T IMES,May 24, 

2001, at B4. 

223. See Benjamin Weiser, The Terror Verdict: The Overview; 4 Guilty in Terror Bombings 

of 2 U.S. Embassies in Africa; Jury to Weigh 2 Executions,N.Y. T IMES,May 30, 2001, at A1. 


148


courtroom filled with visitors, including several dozen witnesses, victims 

and family members who had come to New York, some flown from Africa.” 

224 That development alone is the most compelling evidence of the 

unquantifiable and enduring value of an open trial. 

V. EXECUTIVE POWERS DO NOT TRUMP THE RIGHT OF ACCESS 

Recent experience with open trials against terrorists indicates that 

few circumstances legitimately warrant closure of a courtroom in a criminal 

trial. So long as the public’s First Amendment rights persist, therefore, 

closed trials should be hard to come by. It has been suggested, however, 

that with the President’s expanded powers during times of war comes a 

parallel reduction in civil rights, such as the free speech rights that give 

rise to the right to attend criminal trials. Whether or not that proposition 

may be true as a general matter, legal precedent precludes relying on 

such logic to support secret terrorist tribunals. 

A. The President’s Article II Power 

As Commander In Chief During Wartime 

The primary source of authority cited for the post-September 11 Military 

Order’s various provisions, including the provision empowering the 

Secretary of Defense to regulate “closure of, and access to” the military 

tribunals, is the President’s power as “Commander in Chief of the Armed 

Forces” under Article II of the Constitution. 225 In other words, the Order 

provides that the executive branch, not First Amendment principles, will 

determine whether the trials are open to the public. This raises the fundamental 

question of whether the President’s power during a time of war 

(albeit, an undeclared war) may be employed to curtail domestic civil liberties, 

including the First Amendment right of our civilian population 

and press to attend criminal trials. Whatever may be the broad scope of 

presidential power in prosecuting war, controlling constitutional principles 

and the factual circumstances of the current conflict prohibit the 

President from replacing First Amendment principles that ordinarily govern 

press access with unchecked executive fiat. 226 

224. Id. 

225. Military Order, § 4(b) and (c) (4) (B). 

226. One important open question is whether authority for the Military Order is premised 

solely on the President’s Article II war power, or is also supported by congressional legislation 

as well. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636-37 (1952) (Jackson, 

J., concurring) (“[w]hen the President acts pursuant to an express or implied authorization of 


149


It is “beyond cavil that the President has broad powers by virtue of . . . 

his position as Commander in Chief.” 227 Yet, while the President is undoubtedly 

imbued with added authority in time of war, the constitutional “purpose 

of lodging dual titles in one man was to insure that the civilian would 

control the military” and, accordingly, a President cannot “escape control of 

executive powers . . . through assuming his military role.” 228 Thus, while war-time 

presidents from Lincoln to Truman have not infrequently invoked the 

ancient Roman maxim Inter Arma Silent Leges—“in times of war the laws 

are silent”—as justification for executive curtailment of domestic civil rights, 

this principle of executive fiat in times of war has been repudiated several 

times by the Supreme Court as repugnant to our republican values. 

In the civil war case of Ex Parte Milligan, 229 for example, a group of 

civilians in Indiana were tried and convicted by a military tribunal for 

conspiring against the United States. Milligan thereafter sought a writ of 

Congress, his authority is at its maximum for it includes all that he possesses in his own right 

plus all that Congress can delegate . . . If his act is held unconstitutional under these circumstances, 

it usually means that the Federal Government as an undivided whole lacks the power.”). 

In this regard, in addition to the President’s Article II powers, the Military Order also cites 

as authority the Authorization for use of Military Force Joint Resolution (Pub. No. 107-40, 

115 Stat. 224). However, as its title suggests, the Resolution specifically and solely authorizes 

the President to use “force” against those involved with the September 11 attacks. It makes no 

mention of military tribunals, much less authorize the President to try suspected terrorists by 

way of military tribunals closed to the public. 

As a second source of claimed congressional authority, the Order also cites Articles 21 and 

36 of the Uniform Code of Military Justice (10 U.S.C. §§ 821 and 836. Regardless of whether 

this is a sound basis of authority (for a full discussion of this subject, see C OMMITTEE ON MILITARY 

AFFAIRS AND JUSTICE OF THE ASSOCIATION OF THE BAR OF THE CITY OF N EW YORK,INTER ARMA SILENT LEGES:IN 

TIMES OF ‘WAR’SHOULD THE LAWS BE SILENT:AREPORT ON THE PRESIDENT’S MILITARY ORDER OF N OVEMBER 13, 

2001 REGARDING ‘DETENTION,TREATMENT,AND TRIAL OF CERTAIN NO N-CITIZENS IN THE WAR AGAINST TERRORISM,”in 

this issue of The Record), the Court of Military Appeal has held that a First Amendment right 

of access applies to court-martial proceedings under the UCMJ. United States v. Hershey, 20 

M.J. 433, 436 (C.M.A. 1985). See also R.C.M. 806 (b) (“courts-martial shall be open to the 

public”). We therefore conclude that Sections 21 and 36 of the UCMJ do not constitute 

congressional authorization for the President to try suspected terrorists in secret. 

227. New York Times v. United States, 403 U.S. 713, 741 (1971) (Marshall, J. concurring). 

228. Youngstown Sheet & Tube Co., 343 U.S. at 646 (Jackson, J., concurring). See also 

Duncan v. Kahanamoku, 327 U.S. 304, 325 (1944) (Murphy, J., concurring), (“[t]he supremacy 

of the civil over the military is one of our great heritages”). Indeed, the first charge 

lodged against King George III in the Declaration of Independence was that “[h]e has affected 

to render the military independent of and superior to the civil power.” THE DECLARATION OF 

INDEPENDENCE para. 15 (U.S. 1776). 

229. 71 U.S. 2 (1861). 


150


habeas corpus for his release, arguing that a military court had no authority 

to try civilians who were not in a theater of war, and that he had 

been denied his Fifth and Sixth Amendment rights to indictment by grand 

jury and “public trial by an impartial jury.” 230 Defending the executive’s 

actions, Attorney General Speed asserted that “[d]uring the war [the 

President’s] powers must be without limits” and that, “in truth”, the guarantees 

of the Bill of Rights “are all peace provisions of the Constitution [that], 

like other conventional and legislative laws . . . , are silent amidst arms.” 231 

Rejecting the Government’s broad contention that civil liberties may be 

suspended in time of war, Justice Davis wrote in the Court’s majority opinion: 

The Constitution of the United States is a law for rulers and people, 

equally in war and peace, and covers with the shield of its protection 

all classes of men, at all times, and under all circumstances. 

No doctrine, involving more pernicious consequences, was ever 

invented by the wit of man than that any of its provisions can 

be suspended during any of the great exigencies of government. 232 

On the facts before it, the Milligan majority held that the Constitution 

prohibits military trials of civilians outside of war zones when the 

civilian courts are open and functioning—as they were in Indiana. More 

important to the issues of First Amendment access, the Milligan Court 

230. Ex Parte Milligan, 71 U.S. 2. 

231. Id. at 29, 32. The Government’s position that civil liberties have no application in 

wartime was vehemently denounced by Milligan’s lawyer, James Garfield (later 20 th President 

of the United States): 

Such a doctrine, may it please the court, is too monstrous to be tolerated for a 

moment . . . [A] republic can wield the vast engineery of war without breaking down 

the safeguards of liberty; can suppress insurrection and put down rebellion, however 

formidable, without destroying the bulwark of the law; can, by the might of its armed 

millions, preserve and defend both nationality and liberty. 

See REHNQUIST,supra note 38, at 123. Another of Milligan’s counsel, David Field, also retorted 

with understated wit: 

Much confusion of ideas has been produced by mistaking executive power for kingly 

power. Because in monarchial countries the kingly office includes the executive, it 

seems to have been inferred that, conversely, the executive carries with it the kingly 

prerogative. Our executive is in no sense a king, even for four years. 

Milligan, 71 U.S. at 52. 

232. Milligan, 71 U.S. at 120-21. See also R EHNQUIST,supra note 38, at 137 (“The Milligan 

decision is justly celebrated for its rejection of the government’s position that the Bill of Rights 

has not application in wartime”). 


151


established a rule (frequently echoed in later Supreme Court decisions) 

that only “actual” military “necessity” can constitutionally justify executive 

abrogation of domestic civil rights during wartime or crisis. 233 

Milligan’s constitutional requirement of actual military necessity was 

likewise applied in Duncan v. Kahanamoku, 234 which arose from the declaration 

of martial law in Hawaii following the Japanese attack on Pearl Harbor 

in December 1941. Even though bars, places of amusement and other 

aspects of Hawaiian society were functioning again by February 1942, the 

military authorities barred the civil courts from trying even routine criminal 

cases and, instead, all civilians were tried in military courts without 

juries until martial law was lifted in October 1944. The two petitioners in 

Duncan—a civilian stockbroker convicted of embezzlement and a civilian 

shipfitter convicted of brawling with marines—thereafter challenged the 

constitutionality of their trials by military tribunal. Justice Murphy’s opinion 

concurring in the Court’s grant of habeas corpus captures the exacting 

and extremely heavy burden the Government must meet before constitutional 

rights of citizens may be stripped away in wartime: 

There can be no question but that when petitioners were subject 

to military trials on August 25, 1942 and March 2, 1944, 

respectively, the territorial courts of Hawaii were perfectly capable 

of exercising their normal criminal jurisdiction had the 

military allowed them to do so . . . In short, the bill of Rights 

disappeared by military fiat rather than by military necessity. 

* * * 

We may assume that the threat [of future Japanese attacks on] 

Hawaii was a real one; we may also take it for granted that the 

general declaration of martial law was justified. But it does not 

follow that the military was free under the Constitution to close 

the civil courts or to strip them of their criminal jurisdiction, 

especially after the initial shock of the sudden Japanese attack 

had been dissipated. 

233. Thus, the Milligan Court held that “[i]f in foreign invasion or civil war, the courts are 

actually closed, . . . [and] there is a necessity to furnish a substitute for the civil authority, thus 

overthrown, . . . it is allowed to govern by martial rule until the laws can have their free 

course.” Id. at 127. The Court cautioned, however, that “[t]he necessity must be actual and 

present” and that, “[a]s necessity creates the rule, so it limits its duration; for if [martial rule] 

is continued after the courts are reinstated, it is a gross usurpation of power.” Id. at 127. 

234. 327 U.S. 304 (1946). 


152


From time immemorial despots have used real or imagined 

threats to the public welfare as an excuse for needlessly abrogating 

human rights. That excuse is no less unworthy of our 

traditions when used in this day of atomic warfare or at a future 

time when some other type of warfare may be devised. The 

right to a jury trial and other constitutional rights . . . are too 

fundamental to be sacrificed merely through a reasonable fear 

of military assault. There must be some overpowering factor 

that makes recognition of these rights incompatible with the 

public safety before we should consent to their temporary suspension. 

235 

Claims that presidential war powers are “unlimited” and justify curtailment 

of domestic rights were likewise rejected in the Steel Seizure case. 236 

There, during the height of the Korean War, President Truman—in the 

face of congressional enactments to the contrary—ordered seizure of the 

nation’s steel mills to ensure that labor-management disputes would not 

interrupt steel production for the war effort. 237 In joining the Court’s holding 

235. Id. at 327, 329-30 (Murphy, J., concurring). One of the few instances where the Supreme 

Court has upheld government claims of military necessity as justification for abrogating 

domestic civil rights was the infamous Korematsu case, 323 U.S. 214 (1944), involving the 

forced internment of Japanese-Americans during World War II based on fears that some 

might be loyalists or spies for the Japanese government. As noted by Chief Justice Rehnquist, 

“[p]ostwar public opinion reached the conclusion that the forced relocation and detention 

of the entire population of Japanese on the West Coast was a grave injustice, and that the 

Court was too willing to heed the claim of ‘military necessity.’” R EHNQUIST,THE SUPREME COURT 

145 (1987). See also id. at 274 (“a governmental order classifying people solely on the basis 

of race without any inquiry into disloyalty in a particular case strains the bounds of the 

Constitution even in time of war”). In 1988, Congress passed The Civil Liberties Act, 50 

U.S.C. App. § 1989, apologizing to Japanese-Americans for the World War II internment 

program. 

236. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 

237. Reminiscent of the executive claims made in Ex Parte Milligan, the government’s lawyer 

in the Steel Seizure case, Assistant Attorney General Holmes Baldridge, argued to the district 

court judge that the President held “unlimited power” during times of national emergency: 

When Baldridge advanced the theory of absolute power, Judge Pine interrupted 

with, ‘Is that your concept of Government’ 

Baldridge said that it was. 

“’Then the Constitution limits Congress and limits the Judiciary, but does not limit 

the Executive’ asked the judge ‘That is the way we read the Constitution,’ replied the 

Assistant Attorney General.” 

W ASH.POST, Apr. 25, 1952. 


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that Truman had exceeded his constitutional “war powers,” Justice Jackson 

stated in his now-famous concurring opinion: 

‘[N]o doctrine that the court could promulgate would seem to 

me more sinister and alarming than that a President whose conduct 

of foreign affairs is so largely uncontrolled, and often even is 

unknown, can vastly enlarge his mastery over the internal affairs 

of the country by his own commitment of the nation’s 

armed forces to some foreign venture. 

* * * 

. . . I should indulge the widest possible latitude of interpretation 

to sustain [the President’s] exclusive function to command 

the instruments of national force, at least when turned against 

the outside world for the security of our society. But when it is 

turned inward, not because of rebellion but because of a lawful 

economic struggle between industry and labor, it should have 

no indulgence. His command structure . . . is subject to limitations 

consistent with a constitutional Republic. . . . What the 

power of command may include I do not try to envision, but I 

think it is not a military prerogative . . . to seize persons or 

property because they are important or even essential for the 

military and naval establishments. 238 

The constitutional principle of narrowly confining the power of wartime 

presidents to curtail domestic civil liberties prohibits any effort to displace 

the First Amendment guarantees governing public and press access 

to criminal trials of suspected terrorists. No claim of actual military necessity 

has been proffered by the President as justification for the Military 

Order’s secrecy provision; nor do we believe such a claim could be made. 

The events of September 11 were horrifying, and a credible threat of 

future terrorist attacks surely exists. Yet, as Justice Murphy observed in 

Duncan (which similarly involved the surprise attack on Pearl Harbor and 

a real threat of further attacks), the constitutional rights of our citizenry 

“are too fundamental to be sacrificed” even when there exists a reasonable 

fear of future attacks upon our shores. Since shortly after September 

11, our court system and civil administration have been fully functioning—and, 

indeed, the fact that Zacharias Moussaoui (the suspected 20th 

hijacker), John Reid (the foiled sneaker bomber) and John Walker (the 

238. Youngstown, 343 U.S. at 642, 645-46 (Jackson, J., concurring). 


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American Taliban fighter) are being tried in open court proceedings renders 

dubious any claim that holding military trials in secret is required by 

military necessity. 

Chief Justice Rehnquist perhaps put it best: “It is all too easy to slide 

from a case of genuine military necessity, where the power sought to be 

exercised is at least debatable, to one where the threat is not critical and 

the power either dubious or non-existent.” 239 Whatever may be the President’s 

constitutional power as Commander in Chief to wage war on terrorism, it 

does not include holding terrorism trials in secret from the American public 

or press. 

Perhaps the best illustration of the First Amendment protection afforded 

the public’s right to know, even in wartime, is the Pentagon Papers 

case. 240 There, during the Vietnam war, the contents of a classified study 

about American involvement in the war were purloined from the Department 

of Defense and leaked to The New York Times and the Washington 

Post. The Nixon administration promptly sought a prior restraint enjoining 

further publication of the Pentagon Papers on national security grounds, 

arguing that “the authority of the Executive Department to protect the 

nation against publication of information whose disclosure would endanger 

the national security stems from . . . the constitutional power of 

the President . . . as Commander-in-Chief.” 241 Affirming the fundamental 

First Amendment principle that prior restraints of the press are presumptively 

unconstitutional, Justice Brennan noted in his concurring opinion 

that, even when the nation is at war, enjoining the press is constitutionally 

impermissible except in the most extreme and narrow case where “publication 

must inevitably, directly and immediately cause the occurrence of 

an event kindred to imperiling the safety of a transport already at sea.” 242 

Finding that the President’s allegations that publication of the Pentagon 

Papers “could” or “might” harm national security were constitutionally 

insufficient to justify the extraordinary remedy of a prior restraint, Justice 

Stewart pointed out in his concurring opinion precisely why the press 

and public must have meaningful access to information about government 

activities particularly during wartime: 

239. See R EHNQUIST,supra note 38, at 224-25. 

240. New York Times v. United States, 403 U.S. 713 (1971). 

241. Id. (Black, J., concurring) (quoting Brief for the United States at 13-14). 

242. Id. (Brennan, J., concurring). “[T]he First Amendment tolerates absolutely no prior 

judicial restraints of the press predicated upon surmise or conjecture that untoward consequences 

may result.” Id. at 726. 


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In the governmental structure created by our Constitution, the 

Executive is endowed with enormous powers in the two related 

areas of national defense and international relations . . . 

In the absence of the governmental checks and balances present 

in other areas of our national life, the only effective restraint 

upon executive policy and power in the areas of national defense 

and international affairs may lie in an enlightened citizenry—in 

an informed and critical public opinion which alone 

can here protect the values of democratic government. For this 

reason, it is perhaps here that a press that is alert, aware and 

free most vitally serves the basic purpose of the First Amendment. 

For without an informed and free press there cannot be 

an enlightened people. 243 

The Pentagon Papers case (the most recent of the wartime civil liberties 

cases) reinforces that the Military Order cannot constitutionally strip away 

First Amendment press access rights. 

Last, while the Administration has relied on Ex Parte Quirin 244 as precedent 

for using military tribunals for acts of terrorism and crimes of war, 

Quirin provides no support for denying the U.S. public and press access to 

those trials. In Quirin, the Supreme Court held that Nazi saboteurs tried 

by military commission for espionage could claim no Fifth or Sixth Amendment 

protections (such as trial by jury in open court) because, at the time 

of the Constitution’s adoption, no such protections had historically been 

afforded belligerents tried in military proceedings for offenses against the 

laws of war. 245 

Whatever Quirin has to say with regard to the constitutional protections—including 

the Sixth Amendment right to a “public trial”—of noncitizens 

in military tribunals, it is clear that the status of a defendant’s 

constitutional rights cannot impair the independent First Amendment 

right of the U.S. public and press to demand that those proceedings be 

open (an issue not remotely addressed in Quirin). 246 

Indeed, in its First Amendment access decisions, the Supreme Court 

has repeatedly emphasized that “the First Amendment, of its own force . . . , 

243. Id . (Stewart, J., concurring). 

244. 317 U.S. 1 (1942). 

245. Id. at 39-40. 

246. For an excellent discussion of the constitutional issues surrounding the trial of suspected 

September 11 terrorists by way of military tribunals, see the report of the C OMMITTEE ON MILITARY 

AFFAIRS AND JUSTICE OF THE ASSOCIATION OF THE BAR OF THE CITY OF N EW YORK,supra note 226. 


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secures the public an independent right of access to trial proceedings” 

that is wholly separate from the defendant’s Sixth Amendment rights. 247 

It is not the presence or absence of the accused’s right to public trial, but 

rather the paramount importance of allowing citizens to effectively observe 

and discuss the functioning of our government, that animates the 

right of access: 

Underlying the First Amendment right of access to criminal 

trials is the common understanding that ‘a major purpose of 

that Amendment was to protect the free discussion of governmental 

affairs.’ . . . By offering such protection, the First Amendment 

serves to ensure that the individual citizen can effectively 

participate in and contribute to our republican form of 

self-government. 248 

Neither the awesome power of the President in time of war, nor the asserted 

lack of rights of non-citizens tried for terrorism, serve as a basis for 

dispensing with First Amendment access principles. 

B. Holding Military Tribunals Overseas 

Should Not Negate Public Right of Access 

A related issue concerns the physical location of the military tribunals. 

It is quite possible that, for security reasons, terrorism trials of captured 

al Qaeda or Taliban members will be conducted on overseas U.S. 

military bases (for example, Guantanamo Bay, Cuba, where numerous 

Taliban fighters are now being held) or even aboard U.S. warships. 249 And, 

247. Richmond Newspapers v. Virginia, 448 U.S. at 584-85 (Brennan, J., concurring); id. at 

576 (Burger, C.J., plurality op.) (“the First Amendment guarantees of speech and press, standing 

alone, prohibit government from summarily closing courtroom doors”); id. at 599 (Stewart, 

J., concurring) (“the First and Fourteenth Amendments clearly give the press and the public a 

right of access to trials”) id. at 604 (Blackmun, J., concurring) (“with the Sixth Amendment 

[right of the accused to a public trial] set to one side in this case, I am driven to conclude, as 

a secondary position, that the First Amendment must provide some manner of protection for 

public access to the trial”); Press-Enterprise I , 464 U.S. at 516 (Stevens, J., concurring) (“[t]he 

constitutional protection for the right of access . . . is found in the First Amendment rather 

than the public trial provision of the Sixth”); Press-Enterprise II, 478 U.S. at 7 (“[h]ere, . . . the 

right asserted is not the defendant’s Sixth Amendment right to a public trial since the defendant 

requested a closed preliminary hearing. Instead, the right asserted is that of the public 

under the First Amendment”). 

248. Globe Newspaper, 457 U.S. at 604 (citations omitted). 

249. See, e.g., Elisabeth Bumiller, Senior Administration Officials Defend Military Tribunals 

for Terrorist Suspects,N.Y. T IMES, Nov. 15, 2001, at B6. 


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in Greer v. Spock, 250 a case unrelated to military trials, the Supreme Court upheld 

the general exclusion of the press and public from military bases on 

the ground that bases are not forums traditionally open to the public. 251 

Whatever restrictions might otherwise govern public access to military 

bases under Greer, however, these limitations do not apply to public 

attendance at criminal trials held by military authorities. After all, the 

Court of Military Appeals squarely held in Hershey that the press and 

public have a First Amendment right to attend court-martial proceedings 

252 —which invariably occur on military bases or in theaters of operation. 

Additionally, the Manual for Courts-Martial provides that, while 

“[m]ilitary exigencies may occasionally make attendance at courts-martial 

difficult or impracticable, for example, when a court-martial is conducted 

on a ship at sea or . . . in a combat zone”, “[s]uch exigencies should not 

be manipulated to prevent attendance at a court-martial.” 253 

To date, the Administration has made no assertion that military exigencies 

require that trials of captured al Qaeda or Taliban members be 

conducted in an inaccessible combat zone (and, to the contrary, captured 

fighters suspected of terrorist activities have been relocated by the military 

to secure U.S. installations far from any fighting). We, therefore, 

believe that there is no credible logistical basis for denying media access 

to military trials of suspected terrorists. 

Additionally, the fact that military trials of suspected terrorists may 

occur overseas, rather than in the United States, is similarly insufficient 

to place them beyond the legal reach of First Amendment access principles. 

Holding criminal trials in secret implicates the First Amendment 

rights of all American citizens to observe the proceedings; and, even in 

cases involving U.S. military proceedings abroad, the Supreme Court 

has held that the “constitutional protections for the individual [citizen] 

were designed to restrict the United States Government when it acts abroad, 

250. 424 U.S. 828 (1976). 

251. Id. at 838-40. 

252. United States v. Hershey, 20 M.J. 433, 436 (C.M.A. 1985). 

253. R.C.M. 806(a) discussion (1995). Prior to the 1985 decision in Hershey, one lower 

military court opinion did raise the possibility that restraints on public access to military 

installations could be used as a proxy for restricting access to courts-martial. United States v. 

Czarnecki, 10 M.J. 570, 572 n.3 (A.F.C.M.R. 1980) (“[m]embers of the public not otherwise 

authorized to be present upon a military installation are not so authorized by virtue of the trial 

of a court-martial on the installation”). Because Czarnecki predates the 1985 decision in 

Hershey that a First Amendment right of access applies to court-martials and is also at odds 

with the current Manual for Courts-Martials, we conclude that it is not good law. 


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as well as here at home.” 254 In Reid v. Covert, Justice Black sharply articulated 

this principle: 

At the beginning we reject the idea that when the United States 

acts against citizens abroad it can do so free of the Bill of Rights. 

The United States is entirely a creature of the Constitution. 

Its power and authority have no other source. It can only act 

in accordance with all the limitations imposed by the Constitution. 

. . . 

* * * 

This Court and other federal courts have held or asserted that 

various constitutional limitations apply to the Government when 

it acts outside the continental United States. While it has been 

suggested that only those constitutional rights which are “fundamental” 

protect Americans abroad, we can find no warrant 

in logic or otherwise, for picking and choosing among the remarkable 

collection of “Thou shalt nots” which were explicitly 

fastened on all departments and agencies of the Federal Government 

by the Constitution and its Amendments. 255 

We accordingly conclude that, whether military trials are held in the 

United States, at foreign U.S. bases or at sea, provision must be made for 

press and public access under First Amendment principles. 

VI. SPECIAL PROCEDURES IN CASES INVOLVING 

CLASSIFIED AND NATIONAL SECURITY INFORMATION 

Regardless of where they are conducted, perhaps the most convincing 

reason for open trials of accused terrorists is that the framework to 

overcome the government’s primary justification for closure—protection 

of classified and national security information—already exists. In 1980, 

Congress passed the Classified Information Procedures Act (“CIPA”). 256 

CIPA creates a roadmap for courts to follow when dealing with classified 

information in the context of a criminal trial. It does not establish or 

254. Reid v. Covert, 354 U.S. 1, 7 (1957). 

255. Id. at 5-6, 8-9. 

256. Classified Information Procedures Act, 18 U.S.C. app. 3 § 1, et seq. (2000). (hereinafter 

“CIPA”). 


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alter any substantive rights, instead focusing on ensuring that the rights 

of criminal defendants and others are effectively protected while giving 

appropriate consideration to the importance of protecting certain information 

in the interest of national security. 

At the time it was promulgated, CIPA primarily targeted classified 

information already in the hands of a criminal defendant. Greymail— 

the common name for the tactic employed when a defendant threatens 

to disclose classified information during the course of the trial in the 

hopes of persuading the prosecution to drop the case—had been a growing 

problem. CIPA established a procedural mechanism for dealing with 

classified information so as to eliminate the pre-trial uncertainty that 

generates the defendant’s leverage in a greymail situation. 257 CIPA as applied, 

however, also encompasses circumstances where classified information 

initially exists only in the hands of the prosecutor. 258 

A. The Operation of CIPA 

The statute is relatively complex, but its operation ultimately is quite 

simple. The first section of CIPA defines the type of information impacted— 

classified and national security information. The law explicitly takes the 

decision as to what qualifies as classified or national security out of the 

hands of the court, defining what is covered as follows: 

Any information or material that has been determined by the 

United States government pursuant to an Executive Order, statute, 

or regulation, to require protection against unauthorized 

disclosure for reasons of national security ….” 

A court is not permitted to second-guess the government’s decision about 

the need for protecting any specific information, and in practice, courts 

have refused to do so. “[Q]uestions of national security and foreign affairs 

are ‘of a kind for which the Judiciary has neither aptitude, facilities 

nor responsibility and which has long been held to belong in the domain 

of political power not subject to judicial intrusion or inquiry.’” 259 

257. E.g., United States v. Pappas, 94 F.3d 795, 799 (2d Cir. 1996); United States v. Baptista- 

Rodriguez, 17 F.3d 1354, 1363 (11 th Cir. 1994); United States v. Collins, 720 F.2d 1195, 

1197 (11 th Cir. 1983). 

258. See, e.g. , United States v. Bin Laden, No. S(7) 98 Cr. 1023 (LBS), 2001 U.S. Dist. LEXIS 

719 (S.D.N.Y. Jan. 25, 2001). 

259. United States v. Morison, 844 F.2d 1057, 1083 (4 th Cir. 1988) (quoting Chicago & 

Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)). See also United States 


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Recognizing the importance of a criminal defendant’s right to a fair 

trial and the practical effect of case-law and rules requiring disclosure of 

certain information to the defendant, CIPA §§ 3 and 4 provide a mechanism 

for the government to ensure that classified information is disclosed 

only to the extent constitutionally required and that it will remain confidential 

throughout the pre-trial process. Section 3 requires the court to 

enter an order “to protect against the disclosure of any classified information 

disclosed by the United States to any defendant ….” Section 4 authorizes 

the court “to delete specified items of classified information from 

documents to be made available to the defendant through discovery” 

and “to substitute a summary of the information for such classified documents, 

or to substitute a statement admitting relevant facts that the classified 

information would tend to prove.” Before substitution is authorized, the 

government must demonstrate to the court that a substitution is necessary, 

which can be done in camera and ex parte. This approach—permitting an 

in camera hearing to effectuate the substitution of comparable, non-classified 

information for classified information before it is turned over to the 

defendant—ensures that his rights are protected and ultimately that the public’s 

access to the trial is maximized without injuring national security. 

Following discovery, CIPA establishes a process that ensures that both 

parties are aware of what classified information will be permitted at trial 

and what will be excluded. A defendant is required, in advance, to provide 

timely notice if she intends to introduce classified information during 

the trial, either through documents or through witnesses (on direct 

or through anticipated cross-examination). After it receives a CIPA notice, 

the government can call for a pre-trial hearing to determine the use, 

relevance, and admissibility of the classified information. 260 The court will 

v. Fernandez, 913 F.2d 148, 154 (4 th Cir. 1990) (“We are not asked, and we have no authority, 

to consider judgements made by the Attorney General concerning the extent to which the 

information in issue here implicates national security.”); Collins, 720 F.2d at 1198, n.2 (“It is 

an Executive function to classify information, not a judicial one.”); United States v. Musa, 833 

F. Supp. 752, 755 (E.D. Mo. 1993) (“The determination whether to designate information as 

classified is a matter committed to the executive branch. [Citations omitted.] This Court will 

not consider whether the government may have unnecessarily designated matters as classified 

which, in reality, do not affect the national security.”). 

260. See CIPA § 6. A conflict exists among the Circuits as to whether the trial court should 

take the classified nature of the information into consideration when ruling on its admissibility. 

Some Circuits, including the 11 th , have concluded that CIPA mandates that admissibility 

be determined strictly in accordance with ordinary rules of evidence, without considering the 

fact that it is classified. See United States v. Juan, 776 F.2d 256, 258 (11 th Cir. 1985); Collins, 

720 F.2d at 1199. Others, such as the 4 th Circuit, have concluded that the classified nature of 


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hear argument in camera and inform the defendant and the government 

if any classified material will be admitted in the criminal trial. This process 

ensures that the government need not wait until trial, as ordinarily 

would be the case, for evidentiary rulings relating to sensitive information. 261 

If the court finds classified information admissible, § 6 includes a 

separate provision that again gives the government the opportunity to 

substitute an unclassified summary, admit relevant facts, or redact unnecessary 

portions of documents. Should the court determine that the alternative 

proposed by the government “will provide the defendant with substantially 

the same ability to make his defense as would disclosure of the 

specific classified information,” the classified material will remain secret. 262 

Regardless of how the court rules on the question of admissibility or 

substitutions, the ultimate arbiter of whether or not classified information 

will be disclosed remains the Executive Branch. All that the Attorney 

General must do is file an affidavit with the Court objecting to disclosure 

of the classified information, and disclosure of that information is 

strictly prohibited regardless of the court’s evidentiary rulings. 263 The 

information demands a more stringent test for admissibility. In a CIPA § 6 hearing, the court 

must find the material to be at least “essential,” or “helpful” to the defense and “neither merely 

cumulative nor corroborative” before it is found admissible. United States v. Smith, 780 F.2d 

1102, 1107-10 (4 th Cir. 1985). Significantly, the stepped-up test for admissibility was adopted 

precisely because once found admissible, the evidence will become public at the trial. 

261. See, e.g., Baptista-Rodriguez, 17 F.3d at 1363-64; Collins, 720 F.2d at 1197. In one 

instance that we are aware of, CIPA was not applied pre-trial, but instead a CIPA hearing was 

called on the 55 th day of trial. See United States v. LaRouche Campaign, 695 F. Supp. 1282 (D. 

Mass. 1988). In that case, defendants had sought to invoke CIPA pre-trial, but their efforts 

were rebuffed because either the information they proposed to disclose was not classified or 

the information sought from the government did not need to be disclosed. However, the 

government produced additional classified materials before trial that the court deemed disclosable. 

Finding that, “[r]egardless of the time when the issue comes to the court’s attention—whether 

before, during, or after trial—it would be fundamentally inconsistent with the intent Congress 

has manifested in CIPA regarding protection of classified information for a trial judge to 

bypass the provisions of section 4 regarding the procedures for determining whether documents 

not previously disclosed to defendants or their counsel should be disclosed pursuant to 

any discovery obligation,” the court convened a CIPA hearing mid-trial. Id. 

262. CIPA § 6(c)(1)(b). See United States v. Clegg, 846 F.2d 1221, 1224 (9 th Cir. 1988); Juan, 

776 F.2d at 258-59; United States v. George, 20 Media L. Rep. 1511 (D.D.C. July 23, 1992); 

LaRouche, 695 F. Supp. at 1286-89. 

263. CIPA § 6(e). Once the Attorney General files an affidavit prohibiting disclosure, CIPA 

permits the court to dismiss the criminal charges unless the interests of justice would not be 

served, or impose some lesser penalty on the government to protect the defendant’s right to a 

fairtrial. Id. In the 20 years that CIPA has been in effect, we could locate only one reported 


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Court cannot, under any circumstances, order public disclosure of classified 

information. 

CIPA contains a number of other provisions, each designed to ensure 

that classified information remains protected as much as possible. Section 

7 provides for interlocutory review of any decision authorizing disclosure 

of information covered by CIPA 264 or penalizing the government 

for refusing to disclose such information, and § 8 authorizes partial disclosure 

wherever feasible. Security procedures for handling classified information 

also are covered. 265 

As a practical matter, CIPA often has been invoked in cases legitimately 

involving classified information, as well as to combat greymail. In 

those instances, government substitutions frequently take the place of 

classified information during the public trial. Because CIPA also permits 

the court to dismiss the case if the government objects to disclosure of 

classified information deemed to be relevant, the prosecution possesses a 

strong motive to work to declassify or substitute other material. This incentive 

has resulted in scores of successful prosecutions in public view of 

case of such a dismissal. In Fernandez, 913 F.2d 148, the district court dismissed all charges 

with prejudice against the former CIA Chief of Station in San Jose, Costa Rica. He had been 

charged by the Independent Counsel with making false statements and obstructing an internal 

CIA investigation in relation to what came to be known as the Iran-Contra affair. Fernandez 

sought to introduce certain classified documents to support his defense and the district court 

ruled that at least some of the information was relevant and admissible. The Attorney General 

then filed a § 6(e)(1) affidavit prohibiting disclosure of the information, and the court, finding 

that Fernandez’s defense would be “eviscerated” without the classified material, dismissed all 

charges. The 4 th Circuit upheld the decision. Id. at 164. Although potentially troubling, the outcome 

of this case appears to have been by design for political reasons, more than anything else. See, e.g., 

Eric M. Freedman, Open Legal Questions Remaining after Iran-Contra in PRESIDENT REAGAN AND THE 

W ORLD 266-67 (Hofstra Univ. 1997). In his report to Congress, the Independent Counsel 

called for CIPA to be amended to shift authority from the Attorney General to the Independent 

Counsel for submitting a § 6(e)(1) affidavit in cases where an Independent Counsel has been 

appointed because a conflict of interest exists for the Attorney General. Otherwise, the 

Independent Counsel noted, the Attorney General has “the power to block almost any 

potentially embarrassing prosecution that requires the declassification of information.” 

Final Report of the Independent Counsel for Iran/Contra Matters, vol. I, at xxi, Aug. 4, 1993, 

quoted in David I. Greenberger, NOTE: An Overview of the Ethical Implications of the Classified 

Information Procedures Act, 12 Geo. J. Legal Ethics 151, 161-62 (Fall 1988). Ironically, by the end 

of the Iran-Contra prosecutions, nearly all of the related classified information had become 

public, either through the courts, at the congressional hearings, or by the media, apparently 

with little or no adverse consequence for national security. See Greenberger, 12 Geo. J. Legal 

Ethics at 164. 

264. See United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989). 

265. See CIPA § 9. 


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terrorists, conspiracies, and other criminals who have obtained or been 

caught through classified techniques and information. 

B. Access Under CIPA 

CIPA, while authorizing closed proceedings in a number of instances, 

ultimately serves to provide public access to criminal trials in even the 

most sensitive cases. Closed proceedings under CIPA, from a broader perspective, 

are conducted precisely to ensure protection for sensitive government 

information during the course of a public trial. 

CIPA mandates closed proceedings in certain limited circumstances 

which, on their face, appear to meet the Press-Enterprise standard. First, in 

the discovery context, CIPA sensibly authorizes ex parte submissions by 

the government and, where necessary, a closed, ex parte proceeding to 

discuss further those submissions. In United States v. Rezaq, for example, 

the government determined that certain classified information may have 

to be disclosed to the accused hijacker. The government filed an ex parte, 

in camera motion for a protective order and submitted additional information 

about how the documents may relate to the case at the request of 

the court. After reviewing the submissions, the court ruled that some of the 

materials were discoverable. The government then filed another in camera, 

ex parte motion to substitute unclassified admissions. After the court 

reviewed the government’s submissions and concluded that they “fairly 

stated the relevant elements of the classified documents,” the substituted 

admissions were disclosed to the defendant. Reviewing the case on appeal, 

the 4 th Circuit found the district court’s application of CIPA “commendable.” 

266 

The United States District Court for the District of New Jersey recently 

went even further. On June 21, 2000, a federal grand jury indicted reputed 

Philadelphia mobster Nicodemo Scarfo on charges of gambling and 

loansharking. Among other things, the government’s evidence included 

material gathered from a “Key Logger System” that had been installed on 

Mr. Scarfo’s computer. When Scarfo sought discovery to determine whether 

the KLS had been operating when Scarfo was communicating via modem, 

thereby illegally intercepting a wire communication without a warrant 

and rendering the information obtained inadmissible, the government 

invoked CIPA, stating that the characteristics and functional components 

266. See United States v. Rezaq, 134 F.2d, 1121, 1142-43 (D.C. Cir. 1998); see also Yunis, 

924 F.2d at 1094-95; Yunis, 867 F.2d 617; United States v. Rahman, 870 F. Supp. 47, 53 

(S.D.N.Y. 1994) (sealing any materials that discuss the substance of classified information 

submitted for in camera review). 


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of the KLS are classified. Pursuant to CIPA, the court held an ex parte, in 

camera hearing during which several high-ranking government officials 

presented the court with “detailed and top-secret, classified information 

regarding the KLS, including how it operates in connection with a modem.” 

267 The court found some of the information should be disclosed, 

but that an unclassified summary “would be sufficient” for the defense. 

It then entered a protective order granting the defense access to the summary 

and sealing the transcript of the hearing and affidavits submitted 

by the government regarding the KLS. 268 

Second, CIPA § 6, which often is described as the “guts” of CIPA, 

authorizes a court to hold a closed pre-trial hearing on the relevance and 

admissibility of classified information, once the Attorney General has certified 

that an open proceeding may result in the disclosure of classified information. 

If the classified information is ruled inadmissible or if the court 

approves the substitution of unclassified material, the secret information 

remains confidential. 269 Unlike in the discovery proceedings, defense counsel 

(and generally the defendant) participate in the § 6 hearing. 

Finally, CIPA § 3 also provides a basis for limiting access in some 

circumstances, as courts have broadly interpreted the scope of permissible 

protective orders. In the first al Qaeda trial, for instance, the court ruled 

that CIPA authorizes additional restrictions on access by defendants. Judge 

Sand entered a protective order prohibiting any defendant from having 

access to classified information unless he had received “the necessary security 

clearance.” 270 The effect of the order was to prohibit defendants 

from reviewing some of the materials disclosed by the government to their 

defense counsel (who had obtained security clearance) and from attending 

certain in camera hearings. Defendants challenged the constitutionality 

of the order, claiming that their inability to assist their counsel in 

267. United States v. Scarfo, Criminal Action No. 00-404 (NHP), 2001 U.S. Dist. LEXIS 

21561, *6-7 (D.N.J. Dec. 26, 2001). 

268. Id. 

269. See United States v. Anderson, 872 F.2d 1508, 1510, 1514-16 (11 th Cir. 1989); United 

States v. Smith, 780 F.2d 1102, 1103; George, 20 Media L. Rep. 1511. If the court determines 

that the classified information must be admitted in its original form, the government then must 

decide whether or not to go forward with the prosecution, knowing the material will become 

public at trial. See Collins, 720 F.2d at 1197; United States v. Bin Laden, No. S(7) 98 Cr. 1023 

(LBS), 2001 U.S. Dist. LEXIS 719, *4 (S.D.N.Y. Jan. 25, 2001). The Attorney General ultimately 

will determine whether the public interest is best served by prosecuting the individual 

or protecting the sensitive data. Id.; Fernandez, 913 F.2d 148. 

270. See Bin Laden, 2001 U.S. Dist. LEXIS 719, at *5. 


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preparing a defense and their inability to see the evidence against them 

violated a variety of rights arising from the Fifth and Sixth Amendments. 

Finding the government’s interest in non-disclosure of the information 

“compelling,” and having been presented with no evidence of specific, 

material harm, the district court rejected the challenge. 271 

In one particularly unusual case, Judge Greene of the United States 

District Court for the District of Columbia relied on CIPA to preclude the 

news media from attending the videotaped deposition of former President 

Ronald Reagan that was being taken in lieu of requiring him to 

appear at trial in the criminal case against former National Security Advisor 

John Poindexter arising out of the Iran-Contra affair. Because of the 

unusual nature of the case and the witness, the Court determined that 

the deposition in fact will include an ongoing “CIPA-type hearing,” as 

the Court planned to rule on the relevance and admissibility of questions 

designed to elicit classified information during the deposition. After also 

finding that “national security concerns may be expected to permeate the 

questioning,” that it is “unforeseeable[]” when national security information 

will be revealed, and that there are no reasonable alternatives 

available during the deposition, the Court held that the media would not 

be permitted to attend the deposition. At the same time, implicitly recognizing 

the limitation of CIPA’s reach, Judge Greene ruled that a copy of 

the videotape would be released as soon as the classified information was 

redacted. 272 

On the other hand, CIPA clearly does not authorize closure or secrecy 

in any other context. Once a district court has made its discovery and 

evidentiary rulings, the constitutionally-mandated procedure outlined in 

Press-Enterprise Co. must be followed before a proceeding may be closed. 

For example, on August 6, 1985, a Ghanaian national was indicted for 

espionage. Eventually, the United States and Ghana negotiated a plea 

agreement which ultimately would result in the defendant being returned 

to Ghana in exchange for the release of a number of individuals being 

held by Ghana on charges of spying for the United States. The parties 

then moved, in papers filed under seal, to have the plea taken and sentencing 

conducted in camera without being docketed, and to have all of 

the pleadings and transcripts sealed. The district court granted the motion, 

relying on CIPA. 273 

271. Id. 

272. United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990). 

273. Inre Washington Post Co., 807 F.2d 383, 385-87 (4 th Cir. 1986). 


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In the meantime, a Washington Post reporter had begun looking into 

the case. The district court unsealed transcripts of the plea and sentencing 

hearings and some other documents, but others remained under seal. 

When the district court refused to unseal the additional information, the 

Post appealed the decision. The United States Court of Appeals for the 4 th 

Circuit applied the “historical tradition” and “public purpose” test laid 

out in Globe Newspaper, and found that a right of access extends to the 

types of proceedings and documents sought by the newspaper. Rejecting 

the government’s argument that Press-Enterprise “should not apply where 

national security interests are at stake,” the Court ruled that the district 

court had erred by failing to provide public notice, an opportunity for 

the Post to be heard, or make findings on the record supporting closure. 274 

Substantively, the 4 th Circuit found that CIPA is “simply irrelevant” to 

the merits of this type of closure petition, because the procedural statute 

has no bearing on whether closure is “essential to preserve higher values 

and is narrowly tailored to serve that interest.” 275 CIPA authorizes an in 

camera hearing for the purpose of making advance evidentiary determinations 

regarding classified material, not for any other purposes. 

CIPA has been successfully and effectively applied in a multitude of 

cases since it was first implemented. In some, the “greymail” tactics the 

statute was adopted to address prompted the process. 276 Others legitimately 

involved classified information because of the nature of the crimes charged. 277 

274. Id. at 390-92. 

275. Id. at 393. 

276. See, e.g., United States v. Pappas, 94 F.3d 795 (2d Cir. 1996); United States v. Johnson, 

139 F.3d 1359 (11 th Cir. 1998); United States v. Byers, No. 90-5305, 1991 U.S. App. LEXIS 

15228 (4 th Cir. July 16, 1991); United States v. Juan, 776 F.2d 256 (11 th Cir. 1985); United 

States v. Cardoen, 898 F. Supp. 1563 (S.D. Fla. 1995). 

277. See In re Oliver L. North, 37 F.3d 663 (D.D.C. 1994); United States v. Baptista-Rodriguez, 

17 F.3d 1354 (11 th Cir. 1994); United States v. Fowler, 932 F.2d 306 (4 th Cir. 1991); United 

States v. Fernandez, 913 F.2d 148 (4 th Cir. 1990); United States v. Oliver L. North, 910 F.2d 

843, 901-04 (D.C. Cir. 1990); United States v. Smith, 899 F.2d 564 (6 th Cir. 1990); United 

States v. Ivy, Criminal Action No. 91-00602-04, 1993 U.S. Dist. LEXIS 13572 (E.D. Pa. Aug. 

12, 1993); United States v. George, 20 Media L. Rep. 1511 (D.D.C. July 23, 1992); United 

States v. George, Criminal Action No. 91-0521 (RCL), 1992 U.S. Dist. LEXIS 10539 (D.D.C. 

July 16, 1992); United States v. George, Criminal Action No. 91-0521 (RCL), 1992 U.S. Dist. 

LEXIS 10493 (D.D.C. July 16, 1992); United States v. George, Criminal Action No. 91-0521 

(RCL), 1992 U.S. Dist. LEXIS 9632 (D.D.C. June 24, 1992); United States v. George, 786 F. 

Supp. 11 (D.D.C. 1991); United States v. Poindexter, 732 F. Supp. 142, 153 n.43 (D.D.C. 

1990); United States v. Poindexter, 725 F. Supp. 13 (D.D.C. 1989); United States v. Poindexter, 

727 F. Supp. 1470 (D.D.C. 1989); United States v. North, 713 F. Supp. 1452 (D.D.C. 1989); 


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Accused hijackers, 278 drug dealers, 279 mobsters, 280 spies, 281 and terrorists 282 

all have been prosecuted in open courts, with CIPA serving to effectively 

protect against the harmful disclosure of national secrets. There is no 

reason why these same procedures cannot be used in the tribunals authorized 

following September 11, 2001. 

VII. CONCLUSION 

Terrorists will continue to be prosecuted by the United States Government. 

They may be brought before a federal court or a military tribunal, 

either in the United States or beyond our borders. So long as citizens or 

non-citizens are being brought to justice by the United States Government 

for alleged crimes committed against U.S. citizens, institutions, governments, 

or other U.S. interests, the public and press have a First Amendment 

right of access to those proceedings. The President may not take that right 

away just because there is a war. Nor is it in the interest of the United 

States to portray itself to the rest of the world as a country unwilling to 

open its criminal proceedings to inspection, criticism and review. 283 

United States v. North, 713 F. Supp. 1436 (D.D.C. 1989); United States v. North, 708 F. 

Supp. 399 (D.D.C. 1988); United States v. North, Criminal No. 88-0080-02, 1988 U.S. Dist. 

LEXIS 16008 (D.D.C. Dec. 12, 1988); United States v. North, 698 F. Supp. 322 (D.D.C. 1988). 

278. See, e.g., United States v. Rezaq, 134 F.2d 1121 (D.C. Cir. 1998); United States v. Rezaq, 

899 F. Supp. 697 (D.D.C. 1995); United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991); 

United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989); United States v. Lopez-Lima, 738 F. 

Supp. 1404 (S.D. Fla. 1990). 

279. See, e.g., United States v. Klima Vicius-Viloria, 144 F.3d 1249 (9 th Cir. 1998); United 

States v. Noriega, 117 F.3d 1206 (11 th Cir. 1997); Baptista-Rodriguez, 17 F.3d 1354; Juan, 

776 F.2d 256; United States v. Pringle, 751 F.2d 419 (1 st Cir. 1984). 

280. See Pappas, 94 F.3d 795; United States v. Scarfo, Criminal Action No. 00-404 (NHP), 

2001 U.S. Dist. LEXIS 21561, *6-7 (D.N.J. Dec. 26, 2001). 

281. See, e.g., United States v. Wen Ho Lee, 90 F. Supp. 2d 1324 (D.N.M. 2000); United 

States v. Miller, 874 F.2d 1255 (9 th Cir. 1989); United States v. Smith, 780 F.2d 1102 (4 th Cir. 

1985); United States v. Smith, 592 F. Supp. 424 (E.D. Va. 1984). 

282. See, e.g., United States v. Bin Laden, No. S(7) 98 Cr. 1023 (LBS), 2001 U.S. Dist. LEXIS 

719, *4 (S.D.N.Y. Jan. 25, 2001); United States v. Bin Laden, 58 F. Supp. 2d 113 (S.D.N.Y. 

1999); United States v. Rahman, 870 F. Supp. 47 (S.D.N.Y. 1994).the public and military 

authorities dictate the verdicts. See Fact Sheet: Past U.S. Criticism of Military Tribunals (Human 

Rights Watch Press release, Nov. 28, 2001) (citing additional examples in China, Colombia, 

Egypt, Kyrgyzstan, Malaysia, Nigeria, Peru, Russia, Sudan, and Turkey). 

283. The U.S. State Department has repeatedly criticized the use of military tribunals to try 

civilians and other similar limitations on due process around the world. For example, the 


168

This Report makes clear that just results come from openness. Secretiveness 

does little more than cloak corruption and prevent the community 

from seeing justice be done. National security concerns are extremely 

important, and the law correctly permits classified information to be excised 

from criminal proceedings. But closure must be extremely limited 

and the heavy presumption of openness must apply. 

February 2002 


State Department described the Burmese court system, in its most recent Country Reports, as 

“seriously flawed, particularly in the handling of political cases,” where trials are not open to 

the public and military authorities dictate the verdicts. See Fact Sheet: Past U.S. Criticism of 

Military Tribunals (Human Rights Watch Press release, Nov. 28, 2001) (citing additional 

examples in China, Colombia, Egypt, Kyrgyzstan, Malaysia, Nigeria, Peru, Russia, Sudan, and 

Turkey). 


169




Adam Liptak, Chair 

Carolyn K. Foley, Secretary 

Stephanie S. Abrutyn** 

Ronald W. Adelman** 

Robert D. Balin** 

Sandra S. Baron 

Joan E. Bertin 

Craig A. Bloom 

Katherine M. Bolger** 

Anthony M. Bongiorno 

Dianne Brandi 

Lynda M. Braun 

Eve Burton 

Dale Cendali* 

Patricia A. Clark 

David Cohen 

Moira A. Crouch 

Cheryl L. Davis** 

Sherri F. Dratfield 

Martin Garbus 

Barry J. Gilman 

John A. Gliedman 

Deesha M. Hill 

Edward J. Klaris*** 

Richard L. Klein 

Edward R. Korman* 

David E. McCraw 

Wesley R. Powell 

Emily R. Remes 

David Michael Ross 

Carolyn Schurr Levin 

Randy L. Shapiro 

Saul B. Shapiro 

Charles R. Sims 

Mark A. Sirota 

David B. Smallman 

Linda Steinman 

David G. Trager* 

Jack M. Weiss 

Maya Windholz 

Diane L. Zimmerman 

***Principal author and editor of the Report & Chair, Reports 

Subcommittee. 

** Authors of the report. Eric Robinson was also an author of the 

Report. The following people provided substantial assistance in 

putting the report together: David Weinir, Damian Studola, Betsy 

Judelson, and Danny Sims. 

* Took no part in the preparation, consideration or approval of 

the report. 


170

The Association of the 

Bar of the City of New York 

September 11th 

Legal Initiative 

In the aftermath of September 11 th Americans immediately responded 

with an unprecedented outpouring of assistance to the World 

Trade Center victims and survivors. New Yorkers lost family members 

and friends, fled in waves from their homes and places of 

business to escape crumbling towers and saw their city and skyline 

irrevocably altered. Yet, New Yorkers spontaneously launched 

myriad creative and immediate efforts to aid the victims, the survivors 

and their City. Lawyers quickly realized that the devastation would spawn 

a huge need for legal assistance. They turned to The Association of the 

Bar of the City of New York. 

The Association is one of the oldest and most respected bar associations 

in the country. Its membership reflects the diversity of New York 

City and the range of types of practice prevalent in the City, from the sole 

practitioner to the largest law firms in the world. More importantly, its 

long and deep commitment to pro bono services was known and recognized. 

The Association had an infrastructure, staff and a wide range of 

pro bono initiatives, including a Public Service Network that matched 

lawyers with pro bono opportunities, a Legal Referral Hotline and a Community 

Outreach Law Program with an Immigration Program that rapidly 

could be deployed in the relief effort. 


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S E P T E M B E R 11 T H L E G A L I N I T I A T I V E 

Within days of the tragedy, the Association met with the Chief Judge 

and the Office of Court Administration, and convened meetings with 

legal services providers, bar associations, law school deans and pro bono 

coordinators to discuss a coordinated response. These meetings set the 

tone of regular communication among the various sectors of the Bar. This 

coordination enabled the Bar to maximize its impact, with the three major 

affected bar associations assuming a particular area of responsibility: 

the State Bar assumed responsibility for assisting displaced lawyers, the 

New York County Lawyers’ Association addressed Surrogate issues, and 

the Association of the Bar took the lead in providing services to victims 

and their families. 

This Association consulted with members of our Legal Referral Service 

panel and with cooperating organizations to consider the legal needs 

that would have to be met and the enormous logistical challenge of marshalling 

volunteers. As legal needs were identified—insurance, landlordtenant, 

trusts and estates, worker’s compensation, family law and state 

and federal disaster legal requirements—it became apparent the Association 

would need to mount a massive training effort for volunteer lawyers. 

Volunteer lawyers, although accomplished and experienced in their own 

practice areas, were unlikely to have much direct experience in any, and 

certainly not all, the areas of law that would be involved in assisting 

clients affected by the World Trade Center disaster. 

The Association’s phones soon rang off the hook with calls from 

lawyers wanting to know how to help. Some, like the trusts and estates 

lawyers, could identify problems that the families were sure to encounter 

and suggest how their services could be put to use. Others were unsure of 

what the needs might be, but wanted to assist in any way possible. 

The Association’s first efforts were at the Park Avenue Armory, which 

the Mayor had set up within 48 hours of the attack as a central location 

where families could meet and find support while the search for their 

loved ones continued. The Armory’s organization was overseen by the 

City and Safe Horizon, a not-for-profit organization whose mission is to 

provide support, prevent violence, and promote justice for victims of crime 

and abuse, their families and communities. It soon became apparent that 

the families needed more than emotional and logistical support, particularly 

as it was realized that survivors among the missing were unlikely to 

be found. The families had a range of legal questions, starting with estate 

questions—and the Association responded with the creation of a Trusts 

and Estates Help Desk. 

Safe Horizon subsequently called the Association and requested that 


172


notaries also be sent to the Armory to assist in notarizing documents, 

where required. Thus, the Notary Project was born. 

On Monday, September 25 th , a special expedited process to secure issuance 

of death certificates was announced, developed by the City government 

and the court system, that would commence on Wednesday, September 

27 th . The Association was asked to recruit and train the hundreds 

of lawyers needed to staff the project. Overnight the Association created 

the Death Certificate Project. Special training materials were prepared for 

volunteers. E-mails went out Tuesday morning to recruit attorneys. Those 

who wished to participate in the Project needed to receive special training 

at the Association that evening. The Meeting Hall of the Association, 

which holds about 400, was packed. Lawyers lined the block outside the 

Association and more than 300 were turned away due to lack of space. 

The next morning, volunteer lawyers were at their posts at Pier 94, the site 

of the newly created Family Assistance Center. 

Although the Association’s response to the disaster began in this ad 

hoc way, it rapidly grew into a number of coordinated service efforts, or 

“projects.” Indeed, shortly thereafter the Association launched its two 

largest projects, which were designed to compassionately address the complex 

legal needs of families and victims: the Individuals and Families Facilitator 

Project and the Small Business Initiative. These are innovative programs, 

each set up on the “primary care” model, based on the premise 

that the families and victims had suffered enough and would be best 

served by having a single lawyer who would assist them with all their 

legal needs. 

Today, the Association’s September 11 th Legal Initiative has ten separate 

components, each targeted to meeting a specific legal need that arose 

in the aftermath of September 11. Some (like the Trusts and Estates Help 

Desk and the Death Certificate Project) evolved so that one or more law 

firms took on the responsibility for the day-to-day management of the 

project while oversight remained with the Association. At the point these 

projects are no longer needed, they will be dissolved. Others, like the Individuals 

and Families Facilitator Project and the Small Business Initiative, 

will be ongoing efforts for some time to come and require dedicated 

day-to-day management by Association staff and full time seconded law 

firm volunteers. Two of the ten are internet-based technology programs 

that support the other substantive initiatives. 

The Association was able to organize its massive, multi-layered legal 

response effort, deploying thousands of volunteer lawyers, paralegals and 

legal professionals, as a result of its long-standing commitment to pro 


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bono activities and the infrastructure it had created to deliver them. The 

Association, through its experience, rose to the challenge of, among others 

things, leveraging the resources and commitments donated by large 

and small law firms and corporate law departments, delivering legal services 

from early morning to late at night at disparate locations and matching 

volunteers with individuals, families and small businesses. 

Key to this effective response were the complimentary roles of the 

Association’s Legal Referral Service and the City Bar Fund. 

The City Bar Fund was founded by the Association in 1946 to “facilitate 

and improve the administration of justice.” Its mission has evolved 

to the current emphasis on delivering free legal services to low income 

New Yorkers. The City Bar Fund fulfills its mission through three main 

efforts: the Public Service Network, the Community Outreach Law Program 

and the Center for Self Help, Information, Education and Legal 

Defense (SHIELD). 

The Public Service Network fosters public service in the legal community 

through the development of legal and non-legal volunteer positions 

for lawyers with nonprofit organizations. Projects are tailored to match 

the interests of the volunteer and the needs of the organization. Its staff 

immediately jumped in and applied their skills to the challenge of September 

11 th . Today they are responsible for overseeing the Association’s 

entire September 11 th Legal Initiative as well as the Network’s regular responsibilities. 

Through the Community Outreach Law Program and SHIELD, the 

City Bar Fund provides legal assistance to over 15,000 low-income New 

Yorkers annually. Staff and volunteer attorneys serve immigrants, battered 

women, the homeless, elders, people with cancer, and others who 

cannot access legal resources. The skills and management expertise, not to 

mention the dedication, involved in staffing such programs, made the 

Association’s response to September 11 th possible. 

Each of the Initiative’s programs is summarized below. 

LEGAL REFERRAL SERVICE HOTLINE 

The Association’s Legal Referral Service was in place to fulfill the key 

intake role for September 11 th efforts. Established in 1946 as a joint project 

with the New York County Lawyers’ Association, the service assists over 

100,000 callers annually with advice and, where appropriate, referral to a 

lawyer. After September 11 th , its phone number (212) 626-7373 (-7374 for 

Spanish) was widely publicized by the City and in the media, and it was 

pressed into service. The Legal Referral Service staff, complemented by 


174


volunteer lawyers, answered questions from callers regarding availability 

of legal services for those impacted by September 11 th . If a caller wished to 

use the services of the September 11 th Legal Initiative, an initial intake was 

done over the telephone. The intake form was standardized and key information 

was collected in order to make a referral to a lawyer. 

TRUSTS AND ESTATES HELP DESK 

The Trusts and Estates Help Desk was established within days after 

the strike on the Twin Towers, with the assistance of law firms specializing 

in trusts and estates. The average age of the persons missing in the World 

Trade Center disaster is early 30’s. Many had not yet considered any type 

of estate planning and did not make arrangements for the young families 

they left behind. Many of their survivors similarly were unprepared to 

deal with the complexities of estate administration. The Trusts and Estates 

Help Desk fulfilled a vital and immediate need. The help desk was 

staffed by the T&E departments of 15 New York City law firms and corporations, 

and assisted approximately 400 families. 

NOTARY PROJECT 

The Notary Project provides volunteer notaries to notarize affidavits 

necessary to receive aid from the various agencies that provide financial 

assistance to victims and victim’s families. They also assist in notarizing 

affidavits that families were required to present in order to receive a death 

certificate. Currently located at 51 Chambers Street and 80 Centre Street, 

the Project has moved together with the relief efforts from the Armory to 

Pier 94 and now to its current locations. The notaries assist an average of 

150 clients per day, and overall have notarized approximately 35,000 crime 

victims’ forms, resulting in $48,000,000 in aid, as well as countless other 

important documents. 

DEATH CERTIFICATE PROJECT 

Generally, the law in New York State requires that the family of a 

missing person wait three years to obtain a death certificate. The expedited 

process that was developed with City government and the court 

system was designed to shorten that time to weeks. The procedure hinged 

on preparation and submission of affidavits from a family member of the 

missing person and an employer or other entity confirming the individual’s 

presence at the World Trade Center on September 11 th . 

With less than 24 hours notice, the Association recruited hundreds 

of attorneys, held a training session, and began scheduling volunteers for 


175


shifts at Pier 94. More than 800 lawyers were eventually trained in the 

process. As of February 2002, volunteer lawyers have helped to complete over 

2,200 affidavits, and more than 2,000 death certificates have been issued. 

FAMILY ASSISTANCE AT PIER 94 

One of the greatest challenges faced by survivors and families of the 

missing was identifying the assistance available to them and navigating 

the complex maze of requirements emanating from different relief assistance 

programs. Another challenge was physically finding the location of 

various relief organizations and programs within the cavernous Pier 94. 

Safe Horizon, which was overseeing the general administration of Pier 94, 

together with the City, requested the City Bar Fund to recruit volunteers 

to provide direct assistance to families at Pier 94. Three hundred volunteers, 

including attorneys, law students, paralegals, and other non-legal 

professionals, were trained to provide assistance to those seeking aid at 

the Family Assistance Center. 

Whole families, from grandparents to newborns, would enter the maze 

of hundreds upon hundreds of tables spread across Pier 94. Incredible 

amounts of information and assistance from public and private sources 

were available; however, the task of finding the tables where such aid 

might be available was overwhelming. As originally envisioned, guides 

would meet the families, discuss their needs and then escort them to the 

different assistance organizations found at Pier 94. Guides, however, rapidly 

became advocates and compassionate supporters. Guides would assist 

the families in completing forms, making arrangements with third parties, 

such as funeral home directors, to provide documentation needed 

for reimbursement of funeral expenses and, where necessary, helping government 

relief agencies expansively interpret their own aid criteria. With 

the closure of Pier 94, the Family Service Assistance project has been relocated 

to 51 Chambers Street. 

IMMIGRATION HELP DESK 

The Immigration Help Desk is sponsored by the Immigration Coalition, 

an umbrella organization that works with more than 100 immigrant 

and refugee advocacy groups throughout the New York area, including 

the City Bar Fund. The Coalition is a primary advocate for immigrant 

issues in the state. A significant portion of the missing or their 

survivors included immigrants who had failed to fulfill the requirements 

for legal residence in the country. The Immigration Help Desk, staffed by 

attorneys from the City Bar Fund and a number of other immigration 


176


programs throughout the City, assists families and survivors with their 

immigration issues, as well as identifying for them the types of benefits 

available notwithstanding their legal status. The Help Desk has provided 

assistance to approximately 350 people. 

INDIVIDUALS & FAMILIES FACILITATOR PROJECT 

This is a massive project designed to deliver legal assistance directly to 

individuals and families impacted by September 11 th . It commenced formal 

operation in late September, and will continue well into 2003, if not 

beyond. Believing that families and survivors were overwhelmed by the 

morass of requirements for different aid programs at a time when they 

were also suffering from the loss of a family member, a home or a job, the 

City Bar Fund adopted a “family practitioner” model for delivering comprehensive 

legal assistance. A single attorney, a Facilitator, would be assigned 

to each client. The attorney would assist the families and survivors 

in conducting an inventory of their legal needs, prioritizing them and 

aiding in their resolution. 

The attorney volunteers, however, were unlikely to be expert in all of 

the areas of law most likely to present issues for their clients. To support 

them, a network of Mentors was established. Mentors are attorneys with 

expertise in different areas of law in which client questions were likely to 

arise and who were available to provide guidance and respond to specific 

questions raised by facilitators. In addition, a network of volunteer practitioners 

with experience in key subject areas was created to actually take 

on pro bono cases in particular areas, should complex questions of law 

arise or direct litigation experience be required. For example, if a family 

law matter, such as a custody dispute, were to get to trial, an experienced 

family litigator would handle the actual litigation. 

Clients of the Individuals & Families Facilitator Project came to the 

Association either through the Legal Referral Hotline or through other 

projects and were assigned a Facilitator through a web-based case management 

system donated to the Association for this purpose by iLawyer.com. 

When a referral was available, the Facilitators were contacted via e-mail 

through this system. Cases were accepted or rejected for representation 

within 24 hours. 

Names and contact information for Mentors, as well as training materials 

and other relevant information, are posted on another website 

operated by Probono.Net, a not-for-profit organization dedicated to disseminating 

legal information to lawyers providing pro bono services. 

The Association made a determination that its pro bono services would 


177


not extend to handling any matters of third party liability, although 

Facilitators were trained to advise clients of the existence of the Federal 

Victim’s Compensation Fund and other assistance programs. Clients interested 

in pursuing third party liability claims were to be referred back to 

the Legal Referral Service, which then would make a referral to the American 

Trial Lawyers Association or other organizations that were in a position 

to provide assistance for third party claims. 

Over 700 lawyers took the three-hour facilitator training course. Apart 

from training in the areas of law that might be relevant to their clients, 

volunteers received advice from Safe Horizon on the emotional needs of 

their clients and how to tailor their legal advice so as to avoid unnecessarily 

delaying the healing process. As it became clear that certain areas of 

law were important in a substantial number of cases, training sessions 

focusing on those areas were provided to the Facilitators, and were well 

attended. To date, facilitators have taken over 900 cases. 

In addition, a Helping Handbook was prepared in English and Spanish, 

providing basic legal information and resource contacts for victims 

and families. Thirty-thousand copies were printed. 

SMALL BUSINESS INITIATIVE 

The Small Business Initiative followed the structure of the Facilitator 

project, utilizing Facilitators and experienced practitioners in key areas, 

who serve as mentors and provide direct assistance. This initiative similarly 

used Probono.Net and iLawyer.com to manage materials and referrals. 

The focus of this project, however, is small businesses that have been 

directly and adversely affected by the World Trade Center disaster, ranging 

from pushcart vendors to small clothing stores to upscale restaurants. 

Coincidentally, the City Bar Fund had been examining the legal needs of 

small businesses for almost a year, and a Fellow from the National Association 

for Public Interest Law (NAPIL) joined the City Bar Fund staff on 

September 13 th to launch a pro bono program for small businesses. She 

immediately began work on the Small Business Initiative. 

Through the Small Business Initiative, outreach and intake has been 

conducted at a total of five different sites throughout Manhattan. In 

addition to conducting intake for the Small Business Initiative, volunteer 

attorneys are available to provide basic legal advice and referrals where 

appropriate. Over 500 small businesses have been assisted by the project, 

and 375 cases have been accepted by volunteer attorneys for more extensive 

legal work. A Helping Handbook for small businesses was also prepared; 

10,000 copies were printed. 


178


The Small Business Initiative is also working with grassroots organizations 

to improve the political and commercial environment for small 

business owners affected by the events of September 11 th . The Initiative 

has participated in two presentations held by the Ground Zero Elected 

Officials Taskforce to improve communication between political offices 

and small business owners. In November, the Small Business Initiative 

sponsored two legal advice clinics for taxi and limousine drivers whose 

primary business was based in lower Manhattan. Additionally, the Initiative 

conducted outreach through a partnership with the Asian American 

Bar Association aimed at reaching out to Korean and Chinese business 

owners to inform them of the services available through the Small Business 

Initiative as well as from other social service providers. 

PROBONO.NET’S SEPTEMBER 11 TH 

PRACTICE AREA: http://www.probono.net/september11 

One of the challenges faced by the Individuals and Families Facilitator 

Project and the Small Business Initiative was providing for ongoing 

education and information for the volunteer attorneys about developments 

that could affect client representation. Probono.Net, a not-for-profit 

organization whose mission involves keeping lawyers practicing on a pro 

bono basis in different areas of law current on general developments and 

practice tips, joined forces with the Association to provide its services. 

Probono.Net is a web-based service that volunteers can log onto to get 

materials, information and access to Mentors. Probono.Net also serves as 

an important method of communication with Facilitators and other potential 

volunteers, as well as a recruiting tool when new projects develop. 

Probono.Net provides a dramatic example of how the Internet can be 

utilized to efficiently communicate and disseminate information in support 

of a large-scale volunteer effort. 

CASE MANAGEMENT: ILAWYER.COM AND BEYOND 

In order for the Individuals & Families Facilitator Project and the 

Small Business Initiative to function, a case management system was necessary. 

A method was needed to match a lawyer with a client and then 

oversee the relationship. How did an individual calling into the Legal 

Referral Service or seeking assistance from one of the intake centers actually 

come to be assigned a Facilitator The model developed involved an 

initial intake that was entered into a web-based system designed specifically 

for the projects by iLawyer.com. Through iLawyer.com, a San Francisco-based 

online legal referral service, Facilitators were informed via e- 


179


mail when a referral was available. The Facilitator then accessed the 

iLawyer.com website, where he or she was able to obtain basic information 

on the case. The Facilitator had 24 hours to electronically accept the 

referral. If a Facilitator did not accept the referral, it was automatically 

sent to the next attorney on the volunteer roster. This web-based system 

was crucial to the City Bar Fund’s ability to match clients with volunteer 

attorneys in a timely manner. 

Eventually, as the volume of referrals diminished, case management 

was moved in February 2002 to an internally managed City Bar Fund 

system. Case management is now handled by several volunteer and staff 

attorneys. 

* * * 

The enormous volunteer effort to help victims of the World Trade 

Center attacks demonstrates the bar’s passion for helping those in need 

and its ability to do so. For many, volunteering was their first foray into 

providing pro bono assistance. It is now of the utmost importance to 

sustain the momentum, and harness this pro bono potential to help others 

in need. The legal problems of the homeless, the elderly poor, children 

in poverty and other disadvantaged populations are at least as great as 

ever, and government-funded legal services simply cannot meet the need. 

What the City Bar Fund has learned from the many projects it developed 

to help September 11 th victims will be of great value in structuring and 

supporting expanded pro bono efforts. 

This summary of the Association and the City Bar Fund’s Legal Assistance 

Program to respond to the events of September 11th was prepared by the 

CityBar Public Service Network Committee and principally authored by Peggy 

Grieve. 


180

Recent Committee Reports 

AIDS 

Letter to Mayor-Elect Bloomberg Regarding Areas of City Policy that are 

of Major Concern to People Living with HIV/AIDS 

Letter to Governor Pataki Regarding Legal Issues Related to the Prevention 

of HIV Transmission in New York State Prisons 

Alternative Dispute Resolution 

Report on Uniform Mediation Act 

Arbitration 

Proposal to the Securities Industry Conference for a Single Arbitrator Rule 

and a Jointly Administered Rule 

Civil Rights 

It is Time to Enforce the Law: A Report on Fulfilling the Promise of the 

New York City Human Rights Law 

Condemnation & Tax Certiorari 

Improving New York’s Property Tax System Following the September 11 

Attacks 

Election Law 

Testimony of Evan A. Davis Before the New York City Campaign Finance 

Board 

Federal Courts 

Letter to Stephen Perry, Commissioner of the General Services Administration, 

Regarding the Completion of Construction of Eight Courtrooms 

and Chambers in Brooklyn 

Foreign and Comparative Law 

The Vienna Convention on the Assignment of Receivables in International 

Trade 


181

R E C E N T C O M M I T T E E R E P O R T S 


Letter to the INS Commenting on INS No. 2171-01 Custody Procedures 

Summary of the Provisions in the USA Patriot Act of 2001 

International Human Rights 

Letter to the Court of Cassation, Cairo, Egypt Regarding the Case of Saad 

Eddin Ibrahim and the Ibn Khaldun Defendants 

Letter to Prime Minister and President of Ethiopia Commending the 

Government’s Decision to Lift the Suspension on the Operation of the 

Ethiopian Women Lawyers Association 

Letter to HE Vincent Fox, President of Mexico, regarding the Murder of 

Lic. Digna Ochoa 

The Struggle to Prosecute Human Rights Abuses in Aceh, Indonesia 

Legal Issues Pertaining to Animals 

Letter to Representative Reynolds Regarding H.R. 2622, the Helping Out 

to Rescue and Save Equine Act 

Letter to Mayor-Elect Bloomberg Outlining the Numerous Opportunities 

to Improve New York City’s Policies Regarding Animals 

Matrimonial Law 

Married Heterosexual Couples and Unmarried Same Sex Couples in New 

York: A Comparison of Their Legal Rights and Obligations 

Military Affairs and Justice 

Report on the Military Order of November 13, 2001 Regarding “Detention, 

Treatment, and Trial of Certain Non-Citizens in the War Against 

Terrorism” 

New York City Affairs 

Letter to Mayor Bloomberg With Regard to the City’s Infrastructure 

Professional Discipline 

Comments on Proposed Rule to Require Engagement Letters 

Securities Regulation 

Letter to Jonathan Katz, Secretary of the SEC, Regarding SEC Release Nos. 


182

R E C E N T C O M M I T T E E R E P O R T S 

33-8016, 34-44868 and International Series Release No. 1250 (Mandated 

EDGAR Filing for Foreign Issuers) 

Comment Letter to the Securities and Exchange Commission Regarding 

ABA Comments on Proposals for Securities Act Reform 

Social Welfare Law 

Letter to Governor Pataki and Mayor Giuliani Urging the Adoption of 

Appropriate Measures to Mitigate the Harm to Low Income New Yorkers 

Resulting from the September 11 Attack 

Uniform State Laws 

Report on the Uniform Electronic Transaction Act, the Electronic Signatures 

Act in Global and National Commerce Act and the Electronic Signatures 

and Records Act 

United Nations 

New York City and the United Nations: Towards a Renewed Relationship 

In Addition, Nine Committees* Collaborated on: 

Letter to the United States Justice Department re: September 11th Victims 

Compensation Fund 

* The participating Committees were: Administrative Law, Aeronautics, Alternative 

Dispute Resolution, Arbitration, Federal Courts, Litigation, Product Liability, 

Tort Litigation, and Trusts, Estates and Surrogate’s Courts. 

Copies of any of the above reports are available to members by calling 

(212) 382-6624, or by e-mail, at kbopp@abcny.org. 


183

New Members 

As of March 2002 

DATE 

RESIDENT 

ADMITTED TO 

PRACTICE 

Barry Abbott 630 Third Ave. New York NY 03/79 

Nazish Agha 

Skadden Arps Slate Meagher & Flom LLP 

New York NY 10/01 

Donna R. Ahlstrand NY Life Insurance Co. New York NY 01/01 

Kristopher E. Ahrend Sony Music Entertainment Inc New York NY 10/96 

Francis T. Alberts Law Offices of Francis T. Alberts Bronx NY 12/95 

Richard A. Altman 99 Park Ave. New York NY 03/78 

Brigitte Amiri 

Center For Reproductive Law and Policy 


Ricardo A. Anzaldua-Montoya 

Cleary Gottlieb Steen & Hamilton New York NY 12/90 

Naomi Aoyama Debevoise & Plimpton New York NY 04/94 

Louis Apker 151 1st Ave. New York NY 02/02 

Rachel L. Arfa American Elite Properties Inc. New York NY 02/79 

Gregory C. Armstrong 70 E 96th St. New York NY 05/86 

Kenneth J. Auslander 90 Park Ave. New York NY 12/87 

Danielle G. Avery Debevoise & Plimpton New York NY 03/96 

Suzan Aydin Holland & Knight LLP New York NY 11/01 

Rodney Austin 198-07 100th Ave. Hollis NY 10/01 

Robert G. Babcock Santamarina & Babcock LLP New York NY 10/94 

Peter J. Bachmore JP Morgan Chase & Co. New York NY 09/00 

Sanford E. Balick Tokio Marine Management New York NY 11/75 

Marcio M.S. Baptista Tozzini Freire Teixeira E Silva Advogados 


Barbara G. Barrett 200 Rector Pl. New York NY 12/79 

Martin J. Barrington Philip Morris Mgmt. Corp. New York NY 06/81 

Steven K. Barentzen Arkin Kaplan & Cohen LLP New York NY 06/96 

Keith J. Barkaus Cooper & Dunham LLP New York NY 12/01 

Shahana Basu Sullivan & Cromwell New York NY 01/00 

Margaret M. Bateman Shaw Pittman New York NY 04/00 

Oliver Beiersdorf Condon & Forsyth LLP New York NY 01/98 

Sanford M. Benardo 237 W 35th St. New York NY 02/95 

Alycia R. Benenati White & Case LLP New York NY 02/99 

Walter Benzija Salomon Green & Ostrow PC New York NY 12/95 

Leslie R. Berger Lawrence J. Berger PC New York NY 04/00 

Robin A. Berger Wear Me Apparel Corp. New York NY 09/96 

Debra Berman Community Service Society New York NY 03/91 

Holly M. Biller NYC Dept of Sanitation New York NY 10/84 


184

N E W M E M B E R S 

Thomas M. Blatcher The Ministry of Finance—Gov. of Japan 


Esther Bloustein Dewey Ballantine LLP New York NY 11/99 

Philip M. Blumberg Skadden Arps Slate Meagher & Flom LLP 


Bernd Bohr Sullivan & Cromwell New York NY 04/01 

Anjele D. Bonie-Fischer Coudert Brothers LLP New York NY 10/85 

Susan Brand 515 E 14th St. New York NY 12/77 

Jerry L. Bregman Sidley Austin Brown & Wood LLP New York NY 12/90 

John T. Brennan Law Offices of John T. Brennan Brooklyn NY 02/90 

Joshua R. Bressler Sullivan & Cromwell New York NY 01/93 

Eileen C. Bretz Bretz & Coven LLP New York NY 12/95 

Philip S. Brody Time Equities Inc. New York NY 12/81 

Scott S. Broock Gluon Solutions Inc. New York NY 11/93 

Edie A. Brous Martin Clearwater & Bell New York NY 07/00 

Geoffrey G.B. Brow Clifford Chance Rogers & Wells LLP 


John Timothy Buckley Appellate Division-First Dept New York NY 11/61 

Arthur J. Burke Davis Polk & Wardwell New York NY 01/94 

Scott Bursor 12 W 72nd St. New York NY 02/97 

Lawrence E. Buterman Cravath Swaine & Moore New York NY 09/01 

Pauline M. Cacucciolo 302 W 98th St. New York NY 05/96 

Lewis S. Calderon 1120 Waterview St. Far Rockaway 

NY 12/93 

Arianne N. Callender Lieff Cabraser Heimann & Bernstein LLP 


Anthony Cannataro NYS Unified Court System New York NY 04/97 

Enrico Canzio Sullivan & Cromwell New York NY 02/99 

Christian D. Carbone Loeb & Loeb LLP New York NY 06/97 

Robert Carcano National Association of Insurance Commissioners 


Charlita C. Cardwell Dewey Ballantine LLP New York NY 05/00 

Corrine A. Carey Urban Justice Center New York NY 02/99 

John B. Cartafalsa Cartafalsa Slattery & Kelly New York NY 11/86 

Milagros Cerrud 119 Bay 28th St. Brooklyn NY 09/00 

Barbara E. Champoux Nixon Peabody LLP New York NY 05/87 

Cecilia Y. Chan Sullivan & Cromwell New York NY 06/01 

Tina Wai Kwan Chau 128 Camden Ave. Staten Island NY 03/99 

Adrienne T. Chen Stern & Montana LLP New York NY 10/00 

Cindy J. Chernuchin Willkie Farr & Gallagher New York NY 06/85 

Montel A. Cherry Harlem Legal Services New York NY 03/00 

Abbie J. Chessler Nomura Securities Int. Inc. New York NY 05/98 

Amod Choudhary Clifford Chance Rogers & Wells LLP New York NY 03/01 

Thomas W. Christopher Fried Frank Harris Shriver & Jacobson 



185


Patryk J. Chudy Debevoise & Plimpton New York NY 01/01 

Patricia N. Cirillo Solomon Smith Barney New York NY 02/84 

Alison Coburn Storch Amini & Munves PC New York NY 05/00 

Diane R. Cohen 162 W 94th St. New York NY 02/81 

Lauren E. Collins Lauren Elvers Representation New York NY 05/96 

Nancy H. Corbett Morgan Lewis & Bockius LLP New York NY 05/83 

Jason P. Criss Covington & Burling New York NY 01/01 

Peter L. Critchell Hoguet Newman & Regal LLP New York NY 12/90 

Diane Crothers US Dept of Labor—ESA/OFCCP New York NY 06/87 

Rose C. Cuison-Villazor NY Lawyers for the Public Interest Inc. 


Heather Curnutt Cleary Gottlieb Steen & Hamilton New York NY 06/00 

Craig Davidowitz 989 Avenue of the Americas New York NY 02/91 

Gail Dave Cleary Gottlieb Steen & Hamilton New York NY 01/00 

Howard S. Davis Legal Services for Children Inc. New York NY 01/67 

Mark Davis Engel & Davis LLP New York NY 05/88 

Theodore M. Davis 14 Sterling Place Brooklyn NY 06/97 

Graham Daw 161 W 61st St. New York NY 04/79 

Hendrik De Jong Latham & Watkins New York NY 10/69 

Jessica A. De Vivo Law Offices of Daniel L. Bernstein 


Melissa B. DeBarry-Hall Kentelman & Tuab New York NY 11/00 

Catherine Debreceny Reitler Brown LLC New York NY 03/99 

Steven Deibert Vandenberg & Feliu LLP New York NY 11/99 

Colleen M. Delaney P.O. Box 3478 New York NY 11/00 

Randolph A. DelFranco Holland & Knight LLP New York NY 03/90 

Sondra N. Deller 102 E 22nd St. New York NY 06/99 

Alexandra Derian Stern & Montana LLP New York NY 01/00 

Bret S. Derman Radian Re-Insurance Inc. New York NY 12/92 

Brian DiBenedetto Gibbons Del Deo Dolan Griffinger & Vecchione 


Cecilia Di Cio Sullivan & Cromwell New York NY 05/01 

David Dickstein Kirkpatrick & Lockhart LLP New York NY 04/00 

Constantine G. Dimopoulos 

Twomey Hoppe & Gallanty LLP New York NY 04/01 

Patricia A. DiLieto 155 Henry St. Brooklyn NY 11/01 

Rebekah Diller NY Civil Liberties Union New York NY 11/98 

Jennifer F. DiMarco Littler Mendelson New York NY 12/99 

Jill Dinneen Thelen Reid & Priest LLP New York NY 04/00 

Tanya Dmitronow Debevoise & Plimpton New York NY 06/99 

Attilio A. D’Oro Biedermann Hoenig Massamillo & Ruff PC 


Torin A. Dorros 124 W 60th St. New York NY 12/97 

Margaret M. Drohan Carter Ledyard & Milburn New York NY 07/00 

George M. Drosdowich AES New Energy New York NY 01/99 


186


Dennis Dumas Bank of New York New York NY 05/82 

Terry Eder-Kaufman Curtis Mallet-Prevost Colt & Mosle New York NY 05/00 

Douglas Ebeling Skadden Arps Slate Meagher & Flom LLP 


Steven M. Ebner Robinson & Cole New York NY 03/99 

Gerald L. Eichinger 10/01 

Christopher Eliopulos 162 W 56th St. New York NY 12/90 

Paul Scott Ellis Scarola Reavis & Parent New York NY 06/96 

J. David Enriquez Sullivan & Cromwell New York NY 

Keren Estime 



Mohammad H. Fadel Sullivan & Cromwell New York NY 09/00 

Jill Fairbrother Sullivan & Cromwell New York NY 11/97 

Colleen Fane Mayer Brown & Platt New York NY 01/00 

Patricia Farren Cahill Gordon & Reindel New York NY 05/74 

Christine A. Fazio Carter Ledyard & Milburn New York NY 12/00 

Mariano Federici Sullivan & Cromwell New York NY 09/98 

Ricardo E. Fernandez Devereaux Fernandez & Lubitz New York NY 05/80 

Alexander F. Fernni 652 Hudson St. New York NY 01/95 

Joseph J. Ferrara 120-05 31st Ave. Flushing NY 02/87 

ToniAnn J. Ferretti Sullivan & Cromwell New York NY 05/01 

Lawrence M. Flait 299 Broadway New York NY 05/93 

John E. Fleur Sullivan & Cromwell New York NY 04/98 

Horace M. Flowers 1270 Broadway New York NY 06/75 

Kim Melanie Forcino Generali U.S. Branch New York NY 11/96 

Wendy D. Forrest Shack Siegel Katz Flaherty & Goodman PC 


Douglas K. Frankel Mizuho Capital Markets Corp. New York NY 06/92 

Don Frazier 67 Wall St. New York NY 12/72 

Adam Freedman 233 Broadway New York NY 12/91 

George Fuiaxis White & Case LLP New York NY 05/01 

Marie-Louise Fulweiler Sumitomo Mitsui Banking Corp. New York NY 06/77 

Daniel Scott Furst 64 Seventh Ave. New York NY 09/01 

Marni Galison Condon & Forsyth LLP New York NY 06/99 

Philip G. Gallagher Gibbons Del Deo Dolan Griffinger & Vecchione 


Victor J. Gallo Carter Ledyard & Milburn New York NY 04/95 

Alex H. Gardner Tofel Karan & Partners PC New York NY 02/93 

Jonathan Gardner Goodkind Labaton Rudoff & Sucharow LLP 


Theresa Ann Garelli First American Title Ins.Co New York NY 10/85 

Robert J. Gavigan Patterson Belknap Webb & Tyler LLP 


Gayle A. Gavin 35 E 90th St. New York NY 04/75 

Jay E. Gerzog Epstein Becker & Green PC New York NY 07/86 


187


Ira Jay Gilbert 

Paul Weiss Rifkind Wharton & Garrison 


Tahir I. Gill Oltarsh & Associates PC New York NY 01/00 

Tanya Gill Debevoise & Plimpton New York NY 12/98 

Jennifer L. Gillman Littler Mendelson New York NY 12/97 

Todd A. Gillman D’Amato & Lynch New York NY 12/99 

Christopher H. Glampapa Paul Weiss Rifkind Wharton & Garrison 


Cynthia M. Godsoe Legal Aid Society, Juvenile Rights Division 

Bronx NY 07/99 

Orlee Goldfeld Hollyer Brady Smith & Hines LLP New York NY 12/99 

Daniel M. Goldfisher Ubique Networks LLC New York NY 09/99 

Antonio P. Golino Vinson & Elkins LLP New York NY 11/00 

Lauryn Powers Gouldin Wachtell Lipton Rosen & Katz New York NY 10/01 

Nicolas Grabar Cleary Gottlieb Steen & Hamilton New York NY 05/84 

Mary E. Grant Lucent Technologies Inc. New York NY 08/96 

Willem Gravett Sullivan & Cromwell New York NY 08/97 

Christopher N. Gray Clifford Chance Rogers & Wells LLP 


Taa Grays Bronx District Attorney’s Office Bronx NY 06/98 

Brian Green Martin Clearwater & Bell New York NY 12/99 

Wayne P. Greene NYC Dept of Health Admin. Tribunal 


Jill C. Greenwald ABC Inc. New York NY 04/91 

Marc L. Greenwald Quinn Emanuel Urquhart Oliver & Hedges 


Matthew Griffin Orans Elsen & Lupert LLP New York NY 06/00 

Steven P. Grodensky Leschack & Grodensky PC New York NY 01/00 

Lisa Grumet NYC Law Department New York NY 05/96 

Adam S. Grundfast Kudman Trachten Kessler Newman & Rich LLP 


Diana Gurfel Condon & Forsyth LLP New York NY 05/00 

Rebecca S. Guthart 200 E 69th St. New York NY 06/89 

Carolyn M. Halk 1 Edgewater Plaza Staten Island NY 01/81 

Thomas James Hall Brody Fabiani & Cohen New York NY 02/93 

Debra Harounian Peltz Clear Channel Entertainment New York NY 09/98 

Deborah A. Harper The Family Center New York NY 10/01 

Lubbie Harper 545 W 141st St. New York NY 03/02 

David S. Hershey-Webb Himmelstein McConnell Gribben & Donoghue 


Stacey Hiller-Moss Sonnenschein Nath & Rosenthal New York NY 03/99 

Munira A. Hirji Metropolitan Life Insurance New York NY 09/85 

Karen R. Hirshfield Frankfurt Garbus Kurnit Klein & Selz PC 


Marina Ho City University of New York New York NY 06/91 


188


Tricia A. Hoefling Cravath Swaine & Moore New York NY 07/99 

Piper Hoffman Outten & Golden LLP New York NY 01/00 

Adam Holland Reitler Brown LLC New York NY 12/97 

Natalie Holme Morgan Lewis & Bockius LLP New York NY 03/01 

Jenny Hsieh Linklaters New York NY 11/01 

Wenchi Hu Cleary Gottlieb Steen & Hamilton New York NY 10/94 

Allen Hurkin-Torres Supreme Court-Kings County Brooklyn NY 12/91 

Stephen Hsu Debevoise & Plimpton New York NY 02/01 

Iqbal Hyder 15 W 34th St. New York NY 01/01 

Ron Idra 111-50 76th St. Forest Hills NY 07/96 

Soo H. Im Wolf Popper LLP New York NY 05/99 

Richard Alan Inz Fish & Neave New York NY 06/80 

Margaret Ann Jacobs Schulte Roth & Zabel LLP New York NY 01/91 

Mark N. Jacobs The Dreyfus Corporation New York NY 04/72 

Pierre M. Janvier 314 W 231st St. Bronx NY 06/94 

Sarkis Jebejian Cravath Swaine & Moore New York NY 02/95 

Lawrence C. Jenkins Metropolitan Transportation Authority 


Lucille A. Jewel Wachtel & Masyr LLP New York NY 03/01 

Jan Pradel Joachim Law Office of Cyrus B. Adler & Associates 


Megan Johnson Cleary Gottlieb Steen & Hamilton New York NY 05/01 

Nelson D. Johnson Arnold & Porter New York NY 12/92 

Nicole L. Johnson Brauner Baron Rosenzweig & Klein New York NY 07/99 

Susan P. Johnson Covington & Burling New York NY 06/80 

Anne-Marie Jolly Queens County Family Court Jamaica NY 05/91 

Jeffrey H. Jordon Cleary Gottlieb Steen & Hamilton New York NY 09/00 

Jean M. Joyce New York Court of Appeals New York NY 07/97 

Ruth Kalbitzer NYC Health & Hospital Corp New York NY 03/99 

Temba T. M Kali Sullivan & Cromwell New York NY 05/95 

George Karafotias Shearman & Sterling New York NY 01/95 

Mikhail Kargin 1135 First Ave. New York NY 11/99 

Theodore Katopis 120 E 82 St. New York NY 06/00 

Robin P. Keller Robinson & Cole Stamford CT 11/01 

Kathleen M. Kelly Friedman Wittenstein & Hochman PC 


Martha Lynne Kenerson Bierce & Kenerson PC New York NY 12/77 

Liza Kent 

NYC Environmental Control Board 


Lainie L. Kernis Fitch Inc. New York NY 12/91 

David Kerstein Gibson Dunn & Crutcher LLP New York NY 06/00 

Denis J. Kiely Fletcher Asset Management Inc New York NY 10/00 

Kwang Kim Sullivan & Cromwell New York NY 05/95 

Jasen P. Kisber Carter Ledyard & Milburn New York NY 10/01 

Simon S. Kogan Kogan Taubman Neville LLC New York NY 03/84 


189


Lisa P. Korologos US Attorney’s Office (SDNY) New York NY 02/94 

Peter M. Labonski Latham & Watkins New York NY 05/94 

Nancy F. Lang 

NYC Dept of Citywide Administrative Services 


Paul J. Lanzon Cap Gemini Ernst & Young US LLC New York NY 07/96 

David J. Larkin Metlife New York NY 06/83 

Joseph D. Larson Wachtell Lipton Rosen & Katz New York NY 11/95 

Maryann H. Lattner 21-80 38th St. Long Island City NY 01/02 

James H. Lavin Dechert New York NY 10/01 

David S. Lawrence 67 Wall St. New York NY 07/95 

Scott R. Lazarus Lazarus & Harris LLP New York NY 06/91 

Martin Lebwohl Wachtell Lipton Rosen & Katz New York NY 10/01 

Ian B. Lee Sullivan & Cromwell New York NY 02/97 

Kim Ellen Lefkowitz Reitler Brown LLC New York NY 10/97 

Daniel Leibler 68-41 Juno St. Forest Hills NY 05/99 

Kenneth E. Leopold Tweedy Browne LLC New York NY 03/84 

Beth Levine 

Pachulski Stang Ziehl Young & Jones 


Michael H. Levison Zetlin & De Chiara LLP New York NY 04/99 

Esther D. Lewinger 189 W 89th St. New York NY 03/99 

Christopher N. Lewis Kirkpatrick & Lockhart LLP New York NY 05/01 

Kelly K. Li 

Milbank Tweed Hadley & McCloy LLP 


David E. Liebman 277 Broadway New York NY 03/74 

Albert W. Liguori Deloitte & Touche LLP New York NY 03/00 

Kenneth Linn 26 Court Street Brooklyn NY 12/68 

David P. Lipari Postner & Rubin New York NY 11/00 

David G. Liston Zuckerman Spaeder LLP New York NY 12/93 

Robert A. Litman 2917 Ave P Brooklyn NY 02/93 

Jeanne Locicero Debevoise & Plimpton New York NY 12/00 

Kyle A. Lonergan Simpson Thacher & Bartlett New York NY 06/01 

Sam Lonergan Kaye Scholer LLP New York NY 12/01 

Joshua G. Losardo Belkin Burden Wenig & Goldman LLP 


William Lu Latham & Watkins New York NY 01/00 

David L. Lurvey Debevoise & Plimpton New York NY 10/01 

Yael Lustmann Debevoise & Plimpton New York NY 01/96 

Timothy P. Lydon Debevoise & Plimpton New York NY 11/00 

Joseph J. Lynett Herrick Feinstein LLP New York NY 03/96 

Alexandra G. Lyras Carter Ledyard & Milburn New York NY 05/93 

Helena Mahler Chadbourne & Parke LLP New York NY 06/01 

Ben David Manevitz Becker Glynn Melamed & Muffly LLP 


Leo Manning 




190


Michael Der Manuelian The RCA Records Label New York NY 01/92 

Brian M. Margolies Eiseman Levine Lehrhaupt & Kakoyiannis PC 


Judith R. Margolin Time Inc. New York NY 06/91 

Howard L. Margulis Squire Sanders & Dempsey LLP New York NY 12/87 

Lawrence K. Marks NYS Office of Court Administration 


Joshua R. Marlow Schulte Roth & Zabel LLP New York NY 05/99 

Sandra M. Marsh The Family Center Inc. New York NY 10/82 

Andrea H. Marshall Holland & Knight LLP New York NY 05/92 

Cristina B. Martinez New York Court of Appeals New York NY 05/96 

Mirna E. Martinez Schoeman Updike & Kaufman New York NY 05/96 

Jeff Marx 132 Java St. Brooklyn NY 09/96 

Arnold I. Mazel Goldberg Weprin & Ustin LLP New York NY 12/68 

Brian J. McBreen 125 E 84th St. New York NY 12/99 

Philip E. McCarthy Linklaters New York NY 05/90 

Stanley McDermott Piper Marbury Rudnick & Wolfe LLP 


Victoria M. McEvedy 230 Park Ave. New York NY 06/89 

Richard E. McKewen US District Court New York NY 01/02 

Brent J. McIntosh Sullivan & Cromwell New York NY 06/01 

Ginger L. McKnight-Chavers 

Weil Gotshal & Manges LLP New York NY 06/90 

Stuart D. Meissner 275 Madison Ave. New York NY 03/89 

Carla M. Miller Proskauer Rose LLP New York NY 06/96 

Ian-Jack Miller Institute for Community Living New York NY 05/94 

Suzanna C. Miller 524 16th St. Brooklyn NY 08/95 

Keija C. Minor Bryan Cave LLP New York NY 12/01 

Fabien Mirabaud CMS Bureau Francis Lefebvre New York NY 06/00 

Bernadette Miragliotta Verizon Communications New York NY 06/92 

Carol Mirotznik Office of Legal Affairs HRA New York NY 06/80 

Rupa Mitra 

Cleary Gottlieb Steen & Hamilton 


Raymond J. Mollica Law Office of Denis C. Guerin New York NY 03/00 

Benedict J. Monachino NYS Crime Victims Broad Brooklyn NY 06/86 

David J. Montag NYC Civil Court-Kings County Brooklyn NY 12/97 

Paul A. Montuori Dewey Ballantine LLP New York NY 01/01 

Gael M. Mooney Environmental Control Board New York NY 06/84 

Susanne M. Mooney KPMG New York NY 11/01 

Alice Morey The Association of the Bar New York NY 12/75 

John Morris 

New York Legal Assistance Group Inc. 


Peter Morrison Skadden Arps Slate Meagher & Flom LLP 


Robert H. Morse Stephen E. Feldaman PC New York NY 03/79 


191


E. Scott Morvillo Clifford Chance Rogers & Wells LLP 


Nadine Moustafa Huber Lawrence & Abell New York NY 10/01 

Robert J. Mozer Mozer & Swetnick New York NY 12/56 

Stacey L. Nader Morrison Cohen Singer & Weinstein LLP 


Ayako K. Nagano 211 W Tenth St. New York NY 08/01 

Noam Nativ Sullivan & Cromwell New York NY 05/97 

Angela D. Nelson Fitzpatrick Cella Harper & Scinto New York NY 01/02 

Felicia A. Nestor Gov. Accountability Project Washington DC 09/00 

Stephen R. Neuwirth Boies Schiller & Flexner LLP New York NY 06/88 

Robert C. Newman Legal Aid Society, Special Litigation Unit 


Yasutaka Nishikori Sullivan & Cromwell New York NY 04/95 

Andrew J. Nitzberg NYS Division of H.R. Bronx NY 12/97 

Dario Nolasco Sullivan & Cromwell New York NY 11/97 

Jason Northcutt Paul Hastings Janofsky & Walker LLP 


Inosi M. Nyatta Sullivan & Cromwell New York NY 03/92 

Jill Karen Oberlander Alliance for Downtown New York New York NY 01/94 

Callen O’Brien Debevoise & Plimpton New York NY 12/94 

Jacob Okun Sullivan & Cromwell New York NY 01/01 

Caroline C. O’Neill 1049 Fifth Ave. New York NY 06/91 

John D. Orleans 235 E 95th St. New York NY 01/00 

Beth A. Ornstein Center for Court Innovation New York NY 10/01 

Lauren Ouziel Paul Weiss Rifkind Wharton & Garrison 


Mauricio Paez Jones Day Reavis & Pogue New York NY 05/92 

Aaron R. Pam Kaye Scholer LLP New York NY 12/96 

Peter Papagianakis Morrison Cohen Singer & Weinstein LLP 


Efthimios Parasidis Jones Day Reavis & Pogue New York NY 03/01 

Jeanie J. Park Pillsbury Winthrop LLP New York NY 04/00 

Fay Yvette Parris 255 W 139th St. New York NY 05/90 

Maria Patelis 110 W 34th St. New York NY 12/00 

Halona N. Patrick Sirota & Sirota LLP New York NY 05/00 

Alice C. Paucker Davis Polk & Wardwell New York NY 10/00 

Elena M. Paul Volunteer Lawyers for the Arts New York NY 11/88 

Beth Pearson 

NYC Administration for Children’s Services 

Jamaica NY 12/97 

Jaime Pereda Sullivan & Cromwell New York NY 05/95 

Amanda Tara Perez Simpson Thacher & Bartlett New York NY 08/99 

Kirstin Peterson Wollmuth Maher & Deutsch LLP New York NY 05/96 

Michael E. Petrella Law Offices of Sean F O’Shea New York NY 12/94 

Peter Pfeiffer 168 E 90th St. New York NY 10/01 


192


Myriam Pham Patterson Belknap Webb & Tyler LLP 


Shawn E. Phillips Anderson Kill & Olick PC New York NY 07/01 

Charles B. Piroli Debevoise & Plimpton New York NY 12/01 

Richard Plansky City University of New York New York NY 09/93 

Jennifer A. Pogorelec Conway & Conway New York NY 03/01 

Valerie A. Potenza Dechert New York NY 06/96 

Ramona Prioleau Paul Weiss Rifkind Wharton & Garrison 


Julie A. Proudfit Willkie Farr & Gallagher New York NY 10/99 

Marc D. Puntus Dresdner Kleinwort Wasserstein New York NY 03/94 

Ayesha Qayyum Jones Day Reavis & Pogue New York NY 10/00 

Steve M. Raffaele Condon & Forsyth LLP New York NY 01/01 

Daniel P. Raglan Sullivan & Cromwell New York NY 05/98 

Efrat Ram Sullivan & Cromwell New York NY 11/95 

Rosena P. Rasalingam Torys LLP New York NY 01/97 

Jody G. Ratner Center For Reproductive Law and Policy 


Lucy Ellen Ray 55 E 86th St. New York NY 12/73 

Daniel R. Renehan Gibbons Del Deo Dolan Griffinger & Vecchione 


Inna Reznik Cleary Gottlieb Steen & Hamilton New York NY 03/01 

Peter R. Rienecker Home Box Office New York NY 06/86 

Amie K. Riggle Fried Frank Harris Shriver & Jacobson 


Sondra Roberto Weil Gotshal & Manges LLP New York NY 06/00 

Sarah M. Robertson Dorsey & Whitney LLP New York NY 02/99 

Joshua Robinson Cravath Swaine & Moore New York NY 02/00 

Eric B. Ronsenoff Willkie Farr & Gallagher New York NY 11/00 

James E. Rosefeld Kay Collyer & Boose LLP New York NY 02/97 

Russell W. Rosen Rosen Preminger & Bloom New York NY 12/68 

Daniel J. Ross Coach Inc. New York NY 06/95 

Margaret B. Ross Wachtell Lipton Rosen & Katz New York NY 11/00 

Thomas C. Rotko Clayman & Rosenberg New York NY 02/96 

Eric M. Rubenstein VNU Inc. New York NY 06/97 

Nishat S. Ruiter Capco New York NY 05/97 

Gregorg M. Saiontz Simpson Thacher & Bartlett New York NY 01/02 

Danielle J. Sallah King & Spalding New York NY 05/00 

Allan C. Samuels Reed Smith LLP New York NY 06/62 

Francisco Santiago Local 237 Legal Service Plan New York NY 10/01 

Alan E. Sash McLaughlin & Stern LLP New York NY 05/99 

Antontia Savaria 18 B Nassau Ave. Glen Cove NY 02/02 

Paul M. Sayegh St. John & Wayne New York NY 04/01 

Peter A. Scarpato AIG Inc. New York NY 12/81 

RoseAnn Schill 60 E 42nd St. New York NY 03/99 


193


Jenifer L. Schlyen Cravath Swaine & Moore New York NY 09/98 

Chaviva B. Schoffman Schulte Roth & Zabel LLP New York NY 11/99 

Sandra L. Schpoont 60 W 13th St. New York NY 06/83 

Jennifer R. Schuster McCarter & English LLP Newark NJ 05/98 

Elizabeth Seabury Schnader Harrison Segal & Lewis LLP 


James T. Seery 

Piper Marbury Rudnick & Wolfe LLP 


Michael Selverne Selverne Mandelbaum & Mintz LLP 


Anthony P. Semancik Metropolitan Transportation Authority 


Amy E. Semet Simpson Thacher & Bartlett New York NY 09/01 

Sherner Sendak Sokolow Dunaud Mercadier & Carreras 


Sarah P. Setrakian Law Offices of James V. Bashian New York NY 11/01 

Hina Shamsi Cleary Gottlieb Steen & Hamilton New York NY 09/99 

Susan Shanklin City University of New York New York NY 06/91 

Loretta Shaw-Lorello O’Sullivan LLP New York NY 12/94 

Marina Lynn Sheriff 15 W 81st St. New York NY 05/90 

Ofer Shinar 415 E 81 St. New York NY 05/98 

Norman Siegel 260 Madison Ave. New York NY 04/70 

Nina Coleman Simmons Morgan Stanley Dean Witter & Co. New York NY 06/96 

Ruth Simon GMAC Commercial Credit New York NY 02/85 

Diane Sinclair 55 W 14th St. New York NY 05/80 

Kate A. Sinding Sive Paget & Riesel PC New York NY 01/98 

Kelly Slavitt 20 E 76th St. New York NY 04/02 

Charles H. Small 14 Penn Plaza New York NY 04/71 

Edward C. Smith The Coalition of Voluntary Mental Health Agencies 


Elaine L. Smith Lewis Greenwald Clifton & Nikolaidis PC 


Erica Smith-Klocek Sullivan & Cromwell New York NY 09/00 

Gregory L. Smith Howe & Addington LLP New York NY 10/93 

Dean M. Solomon Debevoise & Plimpton New York NY 01/02 

Michael D. Smith Cornell University/Medical College 


Edward H. Smoot Patterson Belknap Webb & Tyler LLP 


J. McGregor Smyth The Bronx Defenders Bronx NY 06/00 

Joan A. Soares Law Offices of Joan A. Soares PLLC Kew Gardens NY 12/98 

Daniel J. Spillane Debevoise & Plimpton New York NY 10/01 

Karen Sprague Litigation Management Group New York NY 11/00 

Michael Stacchini Patterson Belknap Webb & Tyler LLP 



194


Sarah E. Stafford Davis Polk & Wardwell New York NY 07/01 

Sara E. Stapleton Sullivan & Cromwell New York NY 11/00 

Deborah L. Stein Simpson Thacher & Bartlett New York NY 07/00 

Howard M. Steinberg Shearman & Sterling New York NY 07/90 

Gail R. Steinhagen Rosin & Reinger New York NY 03/77 

David P. Stephens Stroock & Stroock & Lavan LLP New York NY 05/85 

Anna Stern 

NYS Supreme Court-Appellate Division 2nd Dept. 

Brooklyn NY 07/00 

Jordan E. Stern NYC Dept of Finance New York NY 01/99 

Jenny L. Stewart Cravath Swaine & Moore New York NY 10/99 

Sarena Straus MDx Medical Management Inc. White Plains NY04/96 

Alan M. Strauss Bretz & Coven LLP New York NY 04/95 

Emily A. Stubbs Friedman Kaplan Seiler & Adelman LLP 


Amanda B. Stulman Environmental Protection Agency New York NY 01/96 

Rajan Subberwal Sullivan & Cromwell New York NY 09/00 

Damien McEwen Sullivan Skadden Arps Slate Meagher & Flom LLP 


Alan M. Swerdloff Bernstein Investment Research & Management 


Shawnee Swinton DHHS/OS/ Offices of Civil Rights New York NY 03/01 

Fujimura Takehiro Mitsubishi International New York NY 06/98 

Chon Beng Tan Sullivan & Cromwell New York NY 07/99 

Curtis Tao Cleary Gottlieb Steen & Hamilton New York NY 04/00 

Andrew E. Tauber Paul Weiss Rifkind Wharton & Garrison 


Selina W. Tay Simpson Thacher & Bartlett New York NY 03/00 

Gayle A. Taylor Wachtel & Masyr LLP New York NY 05/01 

Rina E. Teran Kaye Scholer LLP New York NY 01/99 

Judith Thompson 2 Second Pl. Brooklyn NY 05/84 

J. Francisco Tinoco Clifford Chance Rogers & Wells LLP 


Denise Tomasini Goddard Riverside Law Project New York NY 06/00 

Rosann Torres PriceWaterhouseCoopers LLP New York NY 01/00 

Daniel M. Trieff Otterbourg Steindler Houston & Rosen PC 


Ido Tuchman 69-60 108th St. Forest Hills NY 10/98 

Irena Tumova White & Case LLP New York NY 06/01 

Oleh R. Tustaniwsky 65-28 Bayfield Ave. Arverne NY 05/79 

David C. Tyler Holland & Knight LLP New York NY 01/01 

Hidehiro Utsumi Sullivan & Cromwell New York NY 04/96 

Nikola Uzelac Sullivan & Cromwell New York NY 08/01 

Denise M. Valme Bronx Family Court House Bronx NY 12/91 

Pamela Van Der Meulen Dolgenos Newman & Cronin LLP New York NY 02/82 


195


Arturo J. Velez Otterbourg Steindler Houston & Rosen PC 


Antoine Verny Sullivan & Cromwell New York NY 05/99 

Nicholas F. Vianna Saatchi & Saatchi New York NY 06/96 

Sophia R. Vicksman Federal Reserve Bank of NY New York NY 09/96 

Jose Ramon T. Villar Andersen Garrigues & Archibald New York NY 07/97 

Peter R. Vogelsang Morgan Stanley Dean Witter & Co. New York NY 05/88 

Babetta V. Von Albertini 115 E 82nd St. New York NY 10/95 

Nathan Wager 2601 Henry Hudson Pkway West Bronx NY 05/93 

Robert J. Waldner Simpson Thacher & Bartlett New York NY 07/01 

Jonathan J. Walsh Curtis Mallet-Prevost Colt & Mosle 


Xiaogang Wang White & Case LLP New York NY 05/94 

David S. Warner Littler Mendelson New York NY 12/95 

Mark A. A. Warner Hughes Hubbard & Reed LLP New York NY 06/94 

Ian J. Warren Morgan Lewis & Bockius LLP New York NY 11/96 

John F. Watkins Reitler Brown LLC New York NY 07/96 

Russell F. Waxman Friedman Wittenstein & Hochman PC 


Susan E. Welber Paul Weiss Rifkind Wharton & Garrison 


Kay S. Wento 250 E 31st St. New York NY 05/90 

John David Werner Proskauer Rose LLP New York NY 12/00 

Adam E. Wernow Carr Futures Inc. New York NY 03/98 

Robert D. Werth 145 E 35th St. New York NY 12/90 

Willam W. Wickersham Stull Stull & Brody New York NY 05/01 

Robert Wierenga Sullivan & Cromwell New York NY 10/96 

David Wikstrom 565 Fifth Ave New York NY 02/81 

Stephen Z. Williamson Law Office of Cyrus B. Adler New York NY 11/01 

Sheena L. Y. Wright 473 W 143rd St. New York NY 05/95 

Andrew Saul Wurzburger Willkie Farr & Gallagher New York NY 07/01 

Marianne C. Yang Simpson Thacher & Bartlett New York NY 05/97 

R. Richard Yang Shearman & Sterling New York NY 03/01 

Alvin M. Yearwood Bronx District Attorney’s Office Bronx NY 11/86 

Rachel J. Yosevitz Rosenberg & Estis PC New York NY 12/89 

Patrick G. Zabatta McGuireWoods LLP New York NY 06/94 

Denise V. Zamore Torys LLP New York NY 01/00 

Christina Zampas Center For Reproductive Law and Policy 


Noah Zatz National Employment Law Project New York NY 10/00 

Adam S. Ziffer 

Dickstein Shapiro Morin & Oshinsky LLP 


Cheryl Zimmerli 3 Vernon Pl. Valley Stream NY 10/01 

Susan F. Zinder 411 West End Ave. New York NY 05/88 


196


NONRESIDENT 

Scott M. Borene Borene Law Firm PA Minneapolis MN 03/79 

Peter H. Burkard Burkard Law Office Southbury CT 05/68 

Evan Butts ECD Rochester MI 06/90 

David S. Carroll The Vandervort Group LLC Albany NY 01/96 

John Joseph Cox Assigned Counsel Plan Bushkill PA 02/85 

Sahil Desai Sullivan & Cromwell Palo Alto CA 12/98 

Daniel Dorward Sullivan & Cromwell London EC2V 8EY12/99 

Daniel E. DuBois PG & E National Energy Group Albany NY 07/00 

Madeleine Fabre Sullivan & Cromwell 75001 Paris 04/94 

Joseph Fenton 300 Jackson St. New Suffolk NY06/53 

Jonathan H. Ferry Sullivan & Cromwell Washington DC06/01 

Daniel Guenther Sullivan & Cromwell 60311 Frankfurt Am 01/01 

Franca Harris Gutierrez Wilmer Cutler & Pickering Washington DC05/95 

John S. Guttmann Beveridge & Diamond PC Washington DC05/80 

Brian D. Hail Bickel & Brewer Dallas TX 03/93 

Thomas Hancock Sullivan & Cromwell Washington DC12/77 

Jonathan P. Harvey Harvey and Mumford Albany NY 06/67 

Emma Jarvis Sullivan & Cromwell London EC2V 8EY 01/99 

Robert D. Little Law Ofices of Robert Little Memphis TN 12/95 

George Liu Sullivan & Cromwell Beijing 100004 12/93 

Eric R. Lopez Law Offices of Eric R. Lopez West Haven CT 06/97 

Brian F. Mumford Harvey and Mumford Albany NY 06/68 

Sony J. Parapatt Sullivan & Cromwell Palo Alto CA 01/01 

Drucilla S. Ramey 1372 Masonic Ave. San Francisco CA 06/72 

York Schnorbus Sullivan & Cromwell 60311 Frankfurt Am 01/99 

Jamie Shapiro Sullivan & Cromwell Palo Alto CA 06/94 

Isaac Sonsino Sonsino Capital LLC Westport CT 06/80 

Steven J. Watson 108 W Court St. Elkhorn WI 09/90 

William P. Wesley Sullivan & Cromwell London EC2V 8EY04/00 

Jared Wolff Sullivan & Cromwell Los Angeles CA 04/97 

SUBURBAN 

Richard P. Bonnifield PSEG Services Corp Newark NJ 06/79 

Robert F. Borg Kreisler Borg Florman Scarsdale NY 06/50 

Leah Krause Bourne Scura Mealey & Scura LLP Wayne NJ 12/93 

Harriet Causin 174 Mineola Blvd. Mineola NY 06/89 

Wanda L. Clyatt 189 Milton Rd. Rye NY 06/86 

David Samuel Cohen Pace University School of Law White Plains NY 

Karen H. Eisen Gibbons Del Deo Dolan Griffinger & Vecchione 

Newark NJ 04/86 

Robin Freimann Littman Krooks & Roth PC White Plains NY03/00 

Mitchell H. Gordon Official Payments Corporation Stamford CT 02/96 

Susan B. Henner 75 S Broadway White Plains NY06/96 

Gwendolyn E. Jackson Superior Court of New Jersey Newark NJ 01/94 


197


David S. Landay 36A Fishkill Rd. Cold Spring NY 06/65 

Christopher G. Lanning General Atlantic Partners Greenwich CT 06/95 

William Y. Lee Schering-Plough Corporation Kenilworth NJ 06/97 

Gary D. Levenson NY Power Authority White Plains NY11/93 

Thomas A. Lopresti 222 E Main St. Smithtown NY 02/88 

Stephanie R. Mann Department of Neurosurgery Hawthorne NY 06/01 

William D. Marsillo Boies Schiller & Flexner LLP Armonk NY 06/98 

David T. Merson Janow & Meyer LLC Pearl River NY 12/01 

Ann Marie Nista 14 Stokes Road Yonkers NY 05/99 

Katrina Patterson 2001 Marcus Ave. Lake Success NY 02/00 

Virginia A. Reilly The Law Offices of Neal Brickman South Salem NY 05/82 

James M. Ruel Robinson & Cole LLP Stamford CT 10/99 

George R. Talarico Wollmuth Maher & Deutsch LLP Parsippany NJ 10/88 

Stephen A. Thatcher UBS Warburg LLC Stamford CT 07/76 

Massimiliano Valerio Center for Social and Legal Research 

Hackensack NJ 06/01 

Paul L. Vladimir Vladimir & Associates PC North Babylon 

NY 04/98 

David M. Wise Law Offices of David Wise Cranford NJ 09/82 

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Thomas E. Akyali Cravath Swaine & Moore New York NY 

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198


Jana L. Bozelko Bingham Dana LLP New York NY 

N. Elizabeth Braha Sullivan & Cromwell New York NY 

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Michael J. Brown Sullivan & Cromwell New York NY 

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Justin A. Deabler Sullivan & Cromwell New York NY 

Franco Destro Simpson Thacher & Bartlett New York NY 

Anne K. De Sutter 

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Natalie K. Edwards Cravath Swaine & Moore New York NY 

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Jacqueline Esposito Sullivan & Cromwell New York NY 

Nicholas Eyzaguirre-Baeza Sullivan & Cromwell New York NY 

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Alejandro J. Figueroa Latham & Watkins New York NY 

Joshua Meir Fine 884 West End Ave. New York NY 


199


Sharon Finkel 

Fragomen Del Rey Bernsen & Loewy PC 


Eric Fisher Proskauer Rose LLP New York NY 

Matthew S. Fitzwater Sullivan & Cromwell New York NY 

Amanda C. Fleming 129 River Mews Ln. Edgewater NJ 

Richard Flimel Sullivan & Cromwell New York NY 

Heidi M. Flinn Bingham Dana LLP New York NY 

Indy Flore Sullivan & Cromwell New York NY 

Sheila Vera Flynn Cravath Swaine & Moore New York NY 

A. Rahman Ford Cravath Swaine & Moore New York NY 

Adam Ford Shearman & Sterling New York NY 

Laura C. Fraher Sullivan & Cromwell New York NY 

Justin M. Garrod Cravath Swaine & Moore New York NY 

Susan Geevarghese 28 W 96th St. New York NY 

Stephen J. Giordano Sullivan & Cromwell New York NY 

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Lara J. Glasgow Cravath Swaine & Moore New York NY 

Wendy M. Goldberg Sullivan & Cromwell New York NY 

Eric P. Goldstein Cravath Swaine & Moore New York NY 

Theodore A. Gottlieb Bryan Cave LLP New York NY 

Michael J. Greenberg Sullivan & Cromwell New York NY 

Gera Grinberg Sullivan & Cromwell New York NY 

Janine C. Guido Sullivan & Cromwell New York NY 

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J. Granger Harriss Cravath Swaine & Moore New York NY 

Deniz Haupt Proskauer Rose LLP New York NY 

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Kelly Heffernan 

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Carrie Kei Heim Cravath Swaine & Moore New York NY 

Carly Henek Kaye Scholer LLP New York NY 

Jason Herman Simpson Thacher & Bartlett New York NY 

Jay A. Hewlin Proskauer Rose LLP New York NY 

Bruce H. Hickey Sullivan & Cromwell New York NY 

Karoline J. Hinga Cravath Swaine & Moore New York NY 

Russell L. Hizschhorn Proskauer Rose LLP New York NY 

Jason M. Hoberman Sullivan & Cromwell New York NY 

David A. Hollander Jones Day Reavis & Pogue New York NY 

William Hornung Sullivan & Cromwell Tokyo 100-0004 

Serhiy Hoshovsky 17-06 Gates Ave. Ridgewood NY 

Kenji Hosokawa Sullivan & Cromwell New York NY 


200


Paul M. Hotaling Proskauer Rose LLP New York NY 

John A. Houlihan Sullivan & Cromwell New York NY 

Victor Hu 



Kelly S. Huffman Sullivan & Cromwell New York NY 

Adrienne N. Hunter Simpson Thacher & Bartlett New York NY 

Alexa D. Isbell Proskauer Rose LLP New York NY 

Jonathan M. Jaffe Kaye Scholer LLP New York NY 

Sean D. Jensen Sullivan & Cromwell New York NY 

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Jeremy T. Kamras Sullivan & Cromwell New York NY 

Irene K. Karapetyan Shearman & Sterling New York NY 

Soheil M. Karkhanechi Sullivan & Cromwell New York NY 

Olivier Karsenti Sullivan & Cromwell New York NY 

Patrick J. Kassen Cravath Swaine & Moore New York NY 

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Jane H. Kauh 

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Alla Kazakina NY Legal Assistance Group New York NY 

Linda D. Kelly Cravath Swaine & Moore New York NY 

Matthew A. Kidd Sullivan & Cromwell New York NY 

Rina Kim 



Krysten M. Kimmett Sullivan & Cromwell New York NY 

Michael Kneller Debevoise & Plimpton New York NY 

Jennifer J. Koh Sullivan & Cromwell New York NY 

Kathryn Krase One Plaza W Brooklyn NY 

Mile T. Kurta Cravath Swaine & Moore New York NY 

Marc H. Kushner 



Anne M. Ladia 115 E 34th St. New York NY 

David K. Lam Wachtell Lipton Rosen & Katz New York NY 

Dain C. Landon Proskauer Rose LLP New York NY 

Louis LaRocca Cravath Swaine & Moore New York NY 

Stephen M. Lasser Rosen & Livingston New York NY 

Gena Brie Lavallee Simpson Thacher & Bartlett London EC2Y 9HU 

Michelle L. Lawner Cravath Swaine & Moore New York NY 

Stephen M. Lanza The Hon. Gerald C. Escala Hackensack NJ 

Kimberly Lebron Sullivan & Cromwell New York NY 

Craig A. Lee Cravath Swaine & Moore New York NY 

Hsiao-Wei Lee Sullivan & Cromwell New York NY 

Janet M. Lee Sullivan & Cromwell New York NY 

Sonya Lee 



Jason J. Lees Cravath Swaine & Moore New York NY 


201


Donald A. Lepore Sullivan & Cromwell New York NY 

Jerry S. Lettieri Queens DA Office Queens NY 

Harold Levy Sullivan & Cromwell New York NY 

Susan R. Lewis Proskauer Rose LLP New York NY 

Marion C. Leydier Sullivan & Cromwell New York NY 

Ross Lipson Cravath Swaine & Moore New York NY 

Jiang Liu Sullivan & Cromwell New York NY 

Frank S. London Sullivan & Cromwell New York NY 

Frances M. Luke Dorsey & Whitney LLP New York NY 

Adam Lupion Proskauer Rose LLP New York NY 

Cameron D. MacDougall Cravath Swaine & Moore New York NY 

Justin R. Malen Kaye Scholer LLP New York NY 

Moshe Malina 



Thomas Margenet-Baudry Sullivan & Cromwell New York NY 

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Morgan Lewis & Bockius LLP New York NY 

Matthew J. McAlpine Hahn & Hessen LLP New York NY 

Kirsten A. McGarvey Sullivan & Cromwell New York NY 

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John J. Messina Sullivan & Cromwell New York NY 

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Elizabeth H. Miller Cravath Swaine & Moore New York NY 

George F. Miller Hartman & Craven LLP New York NY 

Stacey Moore Proskauer Rose LLP New York NY 

Diana M. S. Moran Dorsey & Whitney LLP New York NY 

Andrea Morgan Proskauer Rose LLP New York NY 

Jonathan E. Morrill Debevoise & Plimpton New York NY 

Christina A. Morris Sullivan & Cromwell London EC2V 8EY 

Laura E. Munoz Wachtell Lipton Rosen & Katz New York NY 

John P. Muller Mendes & Mount LLP New York NY 

Thomas M. Mullins Proskauer Rose LLP New York NY 

Elizabeth K. Nahm Simpson Thacher & Bartlett New York NY 

Andre C. Namphy Sullivan & Cromwell New York NY 

Michele Nascimbene Sullivan & Cromwell London EC2V 8EY 

Christine A. Neagle Kaye Scholer LLP New York NY 

Matthew J. Neel 242 S 1st St. Brooklyn NY 

Eva-Maria Nepf Sullivan & Cromwell New York NY 

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David M. Noble Pillsbury Winthrop LLP New York NY 

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202


Maureen F. O’Hara Sullivan & Cromwell New York NY 

Niall E. O’Hegarty Sullivan & Cromwell New York NY 

Nathaniel O’Seep Sullivan & Cromwell New York NY 

John T. Owen Cravath Swaine & Moore New York NY 

Nicholas J. Owens Sullivan & Cromwell New York NY 

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Christina L. Padden Sullivan & Cromwell New York NY 

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Helen Pataki 



Henrik P. Patel Sullivan & Cromwell New York NY 

James N. Pepin Sullivan & Cromwell New York NY 

Richard Pero Cravath Swaine & Moore New York NY 

Wendy M. Pollack Kaye Scholer LLP New York NY 

Steven J. Purcell Sullivan & Cromwell New York NY 

Catherine M. Purdon Sullivan & Cromwell New York NY 

Amanda C. Pustilink Sullivan & Cromwell New York NY 

Erin E. Quinn Wachtell Lipton Rosen & Katz New York NY 

Jacob Raddock Proskauer Rose LLP New York NY 

Arun G. Rao Cravath Swaine & Moore New York NY 

Brian Rauch Proskauer Rose LLP New York NY 

Mason A. Reeves Sullivan & Cromwell New York NY 

Reza Rezvani Flomenhaft & Cannata LLP New York NY 

Rosemarie Robinson Sullivan & Cromwell New York NY 

Elizabeth Roff Sullivan & Cromwell New York NY 

Michael H. Rogers Sullivan & Cromwell New York NY 

Jennifer S. Rosa 

US Court of Appeals for the Second Circuit 


Lina Rosenberg Pyore Rabinovich PC New York NY 

Melissa Rosenberg Proskauer Rose LLP New York NY 

Ross Rosenberg Sullivan & Cromwell New York NY 

Gary R. Ross Proskauer Rose LLP New York NY 

Jonathan Ross 



Benjamin M. Roth Wachtell Lipton Rosen & Katz New York NY 

Philip L. Rothenberg Sullivan & Cromwell New York NY 

Amy Rothenhaus Proskauer Rose LLP New York NY 

Kerren B. Rothman Kaye Scholer LLP New York NY 

Douglas M. Rozek Sullivan & Cromwell New York NY 

Monica E. Ryan Cravath Swaine & Moore New York NY 

Bettina M. Sacklowski The New York Stock Exchange Inc. 


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203


Aimee E. Saginaw 

US Court of Appeals for the Second Circuit 


Vickramajit Sandhu Cleary Gottlieb Steen & Hamilton 


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Amanda J. Schreiber Sullivan & Cromwell New York NY 

Tara M. Schroeder Proskauer Rose LLP New York NY 

Daniel L. Serota Sullivan & Cromwell New York NY 

Corey M. Shapiro 

Boriana V. Shikova Sullivan & Cromwell New York NY 

Lena Shulga 



Adam Siegartel Proskauer Rose LLP New York NY 

Allison N. Sigmund Cravath Swaine & Moore New York NY 

Y. Dave Silberman Proskauer Rose LLP New York NY 

James A. Silverglad Sullivan & Cromwell New York NY 

Lawrence D. Sloan Sullivan & Cromwell New York NY 

Joanna Smith Proskauer Rose LLP New York NY 

Justin Smith Sullivan & Cromwell New York NY 

Maureen Smith 



Christopher T. Snyder Cravath Swaine & Moore New York NY 

Michael Spiegeland Sullivan & Cromwell New York NY 

Courtney D. Spivey Simpson Thacher & Bartlett New York NY 

Paula Rose Stark Cravath Swaine & Moore New York NY 

Gabriel Steffens Sullivan & Cromwell Los Angeles CA 

Jonathan W. Stein Proskauer Rose LLP New York NY 

R. Bruce Steiner Proskauer Rose LLP New York NY 

Ethan I. Strell Pillsbury Winthrop LLP New York NY 

Bin Tan Sullivan & Cromwell New York NY 

Irum Taqi Herbst & Greenwald LLP New York NY 

Edouard Thomas Sullivan & Cromwell New York NY 

Marissa Tiamfook Proskauer Rose LLP New York NY 

Julie A. Tirella Proskauer Rose LLP New York NY 

David H. Tomlin The Associated Press New York NY 

Melissa M. Toner Cravath Swaine & Moore New York NY 

Ralston W. Turbeville Sullivan & Cromwell New York NY 

Russell B. Unger Pillsbury Winthrop LLP New York NY 

Marijke Van Ekris Engel & McCarney New York NY 

Priya A. Velamoor Cleary Gottlieb Steen & Hamilton 


Chase Vergari Proskauer Rose LLP New York NY 

Amy H. Vidusin 192 North Windhorst Ave. Bethpage NY 


204


Miles J. Vigilante Condon & Forsyth LLP New York NY 

Christopher V. Vitale Sullivan & Cromwell New York NY 

Mary Beth Vrabel Cravath Swaine & Moore New York NY 

Daniel N. Webb Sullivan & Cromwell New York NY 

Edward F. Westfield Edward F. Westfield PC New York NY 

Laurent S. Wiesel Sullivan & Cromwell New York NY 

Alexis R. Wiseman Sullivan & Cromwell New York NY 

Anthony T. Wladyka Proskauer Rose LLP New York NY 

Meron Wondwosen Sullivan & Cromwell New York NY 

Stafford A. Woodley Proskauer Rose LLP New York NY 

Guohua Wu Sullivan & Cromwell New York NY 

Xiaodong Yi Sullivan & Cromwell New York NY 

Zena M. Yoslov Sullivan & Cromwell New York NY 

John T. Zach Cravath Swaine & Moore New York NY 

Olivia Zach Cravath Swaine & Moore New York NY 

Kashif Zaman Sullivan & Cromwell New York NY 

Paul Zambonini Sullivan & Cromwell New York NY 

Robert Zanetti Graubard Miller New York NY 

LAW SCHOOL STUDENT 

Bridgette Y. Ahn George Washington University Law 

Brain H. Alvarez New York University School of Law 

Rachel Ato Aron Temple University 

Cheryl H. Ashman New York Law School 

Abisodun Balogun Albany Law School 

Diane Balos 

Touro College-Jacob D.Fuchsberg 

Eric M. Basterrechea Pace University School of Law 

Scott K. Bibb 

University of Notre Dame Law School 

Adam A. Bier 

New York University School of Law 

Adam Joseph Brown New York Law School 

Robert A. Buckley Benjamin N. Cardozo School of Law 

Diana Cancelas Hofstra University School of Law 

Timothy John Casey St. John’s University School of Law 

Jane Chang 

St. John’s University School of Law 

Paul Jeremy Cherrin University of Michigan Law School 

Kevin E. Colby Fordham University School of Law 

Jennifer L. Credidio Seton Hall University School of Law 

Sara R. Cytron Brooklyn Law School 

Lawrence T. De Angelis City University of New York School of Law 

Marco R. Di Fava Hofstra University School of Law 

T. Douglas Doyle Brooklyn Law School 

Erik Ryan Dreiss St. John’s University School of Law 

Mark Dumas 

Benjamin N. Cardozo School of Law 

Michael T. Dunn St. John’s University School of Law 

Diane Joy Eisnitz Pace University School of Law 


205


Kirstin M. Etela Pace University School of Law 

Sommer K. E. Everson New York Law School 

Nicole M. Fantigrossi New York Law School 

David M. Farkouh Seton Hall University School of Law 

Robert L. Farin Brooklyn Law School 

Matthew Lee Finkelstein St. John’s University School of Law 

Carrie E. Flynn Hofstra University School of Law 

Loni S. Gardner Pace University School of Law 

Geraldine M. Gauthier Brooklyn Law School 

Glenn M. Girdharry Tulane University Law School 

Steven H. Glassberg Hofstra University School of Law 

Jeffery L. Greco South Texas College of Law 

Silvina G. Guzman New York Law School 

Destiny Lee Harmon Hofstra University School of Law 

Arielle Harry-Bess University of Maryland School of Law 

Zoe Jaye Heller Pace University School of Law 

Emily Gould Hirshbein Columbia University School of Law 

Maureen Hoey St. John’s University School of Law 

Robin J. Kemper Yale Law School 

Kevin M. Kileen University of Illinois College 

Crystal Gail King Fordham University School of Law 

Barry C. Klopfer City University of New York School of Law 

Debra S. Kobrin Fordham University School of Law 

David V. Koenig Benjamin N. Cardozo School of Law 

Lori A. Kujawski New York Law School 

Nicholas A. Kujawa New York University School of Law 

Lisette Lavergne Rutgers University School of Law 

James L. Lawler New York Law School 

Bryan D. Leinbach Seton Hall University School of Law 

Daniel Macaluso Brooklyn Law School 

Dimitri A. Maisonet George Washington University Law 

Suzanna M. Meyers Fordham University School of Law 

Michael Miano Seton Hall University School of Law 

Kemba N. Miles Hofstra University School of Law 

Malena J. Mushtare City University of New York School of Law 

Vanessa Neumann New York Law School 

Danitra T. Oliver Fordham University School of Law 

David S. Paris 


Jay S. Pattumudi University of Wisconsin Law School 

Henry Peacock University of Pennsylvania Law 

Heather A. Peterson Washington University School of Law 

Daniel S. Posnick Pace University School of Law 

Paul J. Proulx 

Brooklyn Law School 

Chris Provenzano Columbia University School of Law 

Jennifer B. Reich George Washington University Law 


206


Russell Rusty Rein 

Nder Roytblat 

Candace Sady 

Maston J. Sansom 

Jorge A. Sastogue 

David A. Sawits 

Robert B. Seibert 

Matthew Scott Seidner 

Timothy V. Sorell 

Melissa L. Stewart 

Ness H. Tchaikowitz 

Julia K. Thompson 

Jordan D. Tolman 

Allison B. Tomlinson 

Lucas C. Townsend 

Bryan R. Weber 

Jennifer L. Westbrook 

Jordan A. Wishnew 

Alastair Wood 

David Yeger 

Seton Hall University School of Law 



Albany Law School 

New York Law School 


St. John’s University School of Law 





Quinnipiac College School of Law 


Hofstra University School of Law 

Seton Hall University School of Law 

Quinnipiac College School of Law 

Columbia University School of Law 


George Washington University Law 

Fordham University School of Law 


207

THE RECORD - New York City Bar Association

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