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May 31, 2018

ABA supports public access to criminal court proceedings, including military commissions

The ABA expressed strong support last month for public access and availability to all criminal court proceedings, including those conducted by military commissions, and stated that the association is committed to the belief that all courts should experiment with electronic media coverage of their proceedings.

“The ABA recognizes that there may be times when the military judge determines that the proceedings must be closed for security, privacy, or other limited reasons, but when they are not closed for these reasons, the ABA supports public access and encourages the use of electronic media coverage to protect the integrity of the process and to advance the public interests,” ABA Governmental Affairs Principal Deputy Director Holly O’Grady Cook conveyed in an April 23 letter to the Government Accountability Office (GAO).

P.L. 115-91, the National Defense Authorization Act (NDAA) for Fiscal Year 2018, directs the Comptroller General of the United States to conduct a study “on the feasibility and advisability of expanding the public availability of military commissions proceedings that are made open to the public.” A final report and recommendations based on the study will be submitted to the Senate and House Armed Services Committees.

The conference report accompanying the NDAA legislation states that the Comptroller General is expected to collect views from a wide variety of sources that include the ABA as well as the Judicial Conference of the United States, victims of terrorism and their families, victim advocacy groups, jurists, legal counsel, national security policy experts, and relevant offices within the Department of Defense and other federal departments and agencies.

In her letter, Cook highlighted the ABA’s involvement with the military commissions process since establishment of the commissions was first discussed in 2001 for cases following the 9/11 attacks. In addition to addressing the legal issues of military commissions, the ABA began sending observers to commission proceedings in 2004 and remains one of the original five nongovernmental organizations guaranteed a seat at future proceedings.

Cook provided GAO with the following ABA policies and documents that address the importance of public access to criminal proceedings whenever possible:

  • ABA Standards for Criminal Justice, Fair Trial and Public Discourse;
  • ABA Task Force on Terrorism and the Law, Report and Recommendations on Military Commissions (Jan. 4, 2002);
  • association policy adopted by the ABA House of Delegates in February 2002 regarding President Bush’s military order on detention, treatment and trial of certain non-citizens in the war against terrorism;
  • amici curiae brief filed by the ABA and three other organizations opposing Protective Order 007, issued Jan. 14, 2009, by a military judge limiting public and press access to specific military commission proceedings and evidence; and
  • ABA policy on the use of electronic media coverage of judicial proceedings and a relevant letter submitted for the record of a House Judiciary Committee hearing in December 2014.

Back to the May 2018 Washington Letter