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Although there is likely no legal precedent for press access to a terrorism trial by a military tribunal, several prominent members of the legal community said Tuesday night that it was in the government’s best interest to be as open as possible to show the world that the proceedings are just. The remarks were made during “Media Access to Terrorism on Trial,” a panel discussion hosted by the Association of the Bar of the City of New York. Sitting on the panel were: Mary Jo White, former U.S. Attorney in Manhattan; Chief Judge Michael B. Mukasey of the U.S. District Court for the Southern District of New York; Eve Burton, a visiting lecturer on constitutional law at Columbia University’s Graduate School of Journalism; and Bill Keller, a New York Times columnist and the paper’s former managing editor. Burt Neuborne, legal director at the Brennan Center for Justice, moderated the panel. White expressed strong support for tribunals, telling an audience of lawyers that the proceedings would be more efficient and make it easier for prosecutors to convict the guilty. She also said tribunals would pose fewer safety concerns for judges and jurors. White, who has handled numerous terrorism cases since the World Trade Center bombing in 1993, said she has withheld evidence and witnesses during her prosecution of those cases, in the interest of protecting national security. But at a tribunal, she said, such information could be used more easily because the proceedings would not be as open as those held in federal court. White said that different procedural rules and standards of evidence do not necessarily mean that tribunals are inherently unfair. However, she stressed, proceedings that are entirely shut off from the public would undermine the government’s credibility. She said the government should be as open as possible. “What comes out the other end must be credible justice,” she said. Judge Mukasey declined to express his views about tribunals, but he highlighted possible dangers for jurors that arise in federal court that would not be an issue during a military tribunal. The judge said that when he presided over a 1995 terrorism trial, which involved a plot to destroy New York City landmarks, he took extreme precautions to protect the identity of jurors — asking them to wear nondescript clothing and arranging for U.S. Marshals to pick them up at an undisclosed location and escort them to the courthouse. Still, he said, several of them called him after the trial because journalists were camped out on their doorsteps. Both he and White said that they had helped to persuade the journalists to not publish a story about the jurors, mostly by emphasizing concerns for the jurors’ safety. Mukasey also said that in a terrorism trial, revealing seemingly innocuous information to the public could jeopardize security interests or ongoing terrorism investigations, because the details might alert terrorists about one of the government’s methods for obtaining information. The judge added that the rights of material witnesses were not being violated, because they were being brought before judges quickly and assigned lawyers. PRESS ACCESS Of the panelists, Burton, former deputy general counsel to the Daily News and former general counsel to CNN, was the only one to make the case for a legal right to tribunal access for the press. She said that changing the forum for a trial does not mean the First Amendment no longer applies, and expressed concern over the amount of information that could be suppressed under the guise of national security. During times of war and heightened national stress, Burton said, it is more important than ever for people to fight for the constitutional freedoms to which they have become accustomed. She also noted that the government has often been combative when asked to reveal facts that could not possibly jeopardize national security, such as the number of people who have been detained since Sept. 11 and information, sealed during a trial under the Classified Information Procedures Act, that has already been made public by investigative reporting. White disagreed with Burton’s position on sealing information that is already part of the public record, saying that wider dissemination could cause more harm and adding that sometimes news reports miss facts that might become more clear if the government were to confirm details. Keller said that his chief concern over press access to military tribunals was the government’s default position, which, he said, should be openness with room to argue for closing certain proceedings, rather than completely closed with the press having to argue for access. Openness is the default position for reporters and editors, Keller said, “and I think it should be for the criminal justice system.” He also emphasized the importance of public trials when it comes to dealing with the United States’ allies, some of whom have said they would be unwilling to extradite suspects who might not be given a fair trial. Neuborne said he agreed with the principle of openness as key to the credibility of tribunals, adding that anything less, such as a transcript of a proceeding, would cause people to fear that something was being kept from them.

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