Title: Gov Targeted Brief on Courtroom Closures, 29 Mar 13

Release Date: 2014-03-20

Text: UNITED STATES OF AMERICAV.Government Targeted Briefon Courtroom ClosuresManning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 2221129 March 2013On 1 March 2013, the United States offered to submit a targeted brief on courtroomclosures in the military and federal systems, to include analyses on whether recent case lawrelating to the right to a public trial affects the requirements under United States v. Grunden, 2M.J. 116 (C.M.A. 1977), and to what extent military and federal courts have closed proceedings.In the first section of this targeted brief, the United States explains whether recent caselaw relating to the right to a public trial affects the requirements under Grunden. Case law isclear that the requirements of Grunden still apply, yet must be read in concert with Rule forCourts-Martial (RCM) 806.In the second section of this targeted brief, the United States explains the detailsunderpinning various courtroom closures, particularly upon what courts have relied to close thecourtroom, to what extent the courts ha ve closed the courtroom, and what, if any, measures theCourt may adopt, both during and after court closure, to further control that which is closed tothe public. Ultimately, government counsel in military and federal cases have employed variousmethods, based on the facts of the case and nature of the materials in question, to demonstratethe classified nature of the material and to identify those portions of its case which will involvethis material to justify courtroom closure, consistent with the balancing test under RCM 806,FACTSOn 31 January 2013, the United States requested courtroom closure, in whole or in part,for the testimony of 37 of the 141 govemment witnesses and provided the particular subjectmatter to which each witness would testify in a closed session. See Appellate Exhibit (AE) 479.The United States estimated that the requested closures comprised approximately 30% of itscase.On 1 March 2013, the Court ordered the United States to provide more specificity withrespect to which portions of testimony closure was sought. See AE 503. In its supplementalresponse, the United States provided a greater degree of specificity. See AE 505. Further, inlight of reasonable altematives available short of closure, the United States narrowed its list ofwitnesses for whose testimony closure was sought to 28. The United States currently estimatesthat the requested closures compromise approximately 25% of its case. See id.APPELLATEEXHIBIT 51iimfS"^WITNESSES/EVIDENCEThe United States requests the Court consider the enclosures to this ftling and theAppellate Exhibits cited herein.DISCUSSIONI . Grunden is Still Good Law Yet Must be Read in Concert with RCM 806The right to a public trial derives from two sources: first, the Sixth Amendment, in so faras it attaches to the accused, see Manual for Courts-Martial, United States, R.C.M. 806(a)analysis, at A21-48 (2012); see also Waller v. Georgia, 467 U.S. 39, 46 (1984); and second, theFirst Amendment, in so far as it applies to the public, see RCM 806(a) analysis, at A21-48; seealso Richmond Newspapers, Inc., et al. v. Virginia et a l , 448 U.S. 555, 580 (1980). The right toa public trial is not absolute. See ABC Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F. 1997). Boththe military and federal systems adopt a balancing test to curtail this right. See RCM 806(b)(2);see also Press-Enterprise Co. v. Superior Ct. of California, 464 U.S. 501, 509 (1984); Waller,467 U.S. at 48.In the military system, the seminal case on courtroom closures remains Grunden. SeeDenver Post Corp. v. UnitedStates, 2005 WL 6519929, at 2 (A.C.C.A. 2005) (encouragingpractitioners to apply the "valuable, practicable guidance in the context of excluding the publicand press from court-martial trial proceedings" set out in Grunden); see also Stars and Stripes v.UnitedStates, 2005 WL 3591156 (N-M. Ct. Crim. App. 2005) (following Grunden whenaddressing issues of potential release of classified information during public court-martialproceedings). The guidance provided in Grunden is as follows:It is our decision that the balancing test employed by a trial judgein instances involving the possible divulgence of classifiedmaterial should be as follows. His initial task is to determinewhether the perceived need urged as grounds for the exclusion ofthe public is of sufftcient magnitude so as to outweigh "the dangerof a miscarriage of justice which may attend judicial proceedingscarried out in even partial secrecy." Stamicarbon, N. V. v. AmericanCyanamid Co., 506 F.2d 532, 539 (2d Cir. 1974). This may be bestachieved by conducting a preliminary hearing which is closed tothe public at which time the govemment must demonstrate that ithas met the heavy burden of justifying the imposition of restraintson this constitutional right. The prosecution to meet this heavyburden must demonstrate the classified nature, i f any, of thematerials in question.Grunden, 2 M.J. at 121-122. During this iniftal step, "[a]ll that must be determined is that thematerial in question has been classified by the proper authorities in accordance with theappropriate regulations." Grunden, 2 M.J. at 122. The Court ofMilitary Appeals (CMA)continued that the trial judge "must ftirther decide the scope of the exclusion of the public"which will require the prosecution to "delineate which witnesses will testify on classifiedmatters, and what portion of each witness' testimony will actually be devoted to this area." Id, at123. To this day, this process outlined in Grunden serves as the backbone underlying thenecessary balancing test for courtroom closure. See Denver Post Corp., 2005 WL 6519929, at 2(encouraging practitioners to apply the Grunden guidance).In Waller, 467 U.S. 39, the Supreme Court ftrst articulated this balancing test. To closeproceedings and thereby limit the right to a public trial, the trial judge must 1) decide that theparty seeking closure has advanced an overriding interest likely to be prejudiced, 2) ftnd thatclosure is no broader than necessary to protect that interest, 3) consider altematives to closure,and 4) make findings adequate to support the closure. See Waller, 467 U.S. at 48 (adopting thePress-Enterprise approach articulating a four-part test for balancing interests at stake in closure).In 2004, RCM 806 was amended to reflect the Supreme Court's balancing test in light of militarycase law set forth m. ABC Inc., 47 M.J. at 363 and United States v. Hershey, 20 M.J. 433, 436(C.M.A. 1985), which interpreted Grunden and applied the Constitutional standard enunciatedby the Supreme Court. See RCM 806(b) analysis, at A21-49. And so, Grunden is not at oddswith the later Supreme Court cases, provided it is read in concert with RCM 806 which importsthem to military jurispmdence.Though both the military and federal systems apply substantively the same balancing testwhen considering closure, closure to protect classifted information is only available in themilitary system. Military courts follow RCM 806 when closing the courtroom and are explicitlyauthorized by MRE 505(j) to close proceedings to protect classified information. Cf. UnitedStates V. Anderson, 46 M.J. 728, 729 (A.C.C.A. 1997) (stating that "absent national securityconcems or other adequate justification clearly set forth on the record, trials in the United Statesmilitary jusftce system are to be open to the public."); see also RCM 806(b) analysis, at A21-48(stating that "the only time trial proceedings may be closed without the consent of the accused iswhen classified information is to be introduced"). In the federal system, protection of classiftedinformation does not amount to the many reasons that federal trial courts may close proceedings.See e.g. UnitedStates v. Zimmerman, 19 C.M.R. 806, 814 (A.F.B.R. 1955); Globe NewspaperCo. V. Superior Court for Norfolk County, 457 U.S. 596 (1982); UnitedStates v. Short, 41 M.J.42 (C.M.A. 1994)); UnitedStates v. Thunder, 438 F.3d 866, 868 (8th Cir. 2006); UnitedStates v.Farmer, 32 F.3d 369 (8th Cir. 1994); Bobb v. Senkowsk, 196 F.3d 350 (2nd Cir. 1999); LaPlanteV. Crosby, 133 Fed. Appx. 723 (11th Cir. 2005). Instead, federal law has procedures in place toprotect classifted information via the Classified Information Procedures Act (ClPA). See UnitedStates V. Abu Ali, 528 F.3d 210, 246-49 (4th Cir. 2008); see also In re Terrorist Bombings of U.S.Embassies in East Africa v. Odeh, 552 U.S. 93, 120-23 (2nd Cir. 2008); UnitedStates v. Aref533 F.3d 72, 78-81 (2nd Cir. 2008).I I . Extent of ClosureThe Rules pursuant to which military courts evaluate closure requests are RCM 806(b)(2)and Military Rule of Evidence (MRE) 505(j). As discussed above and through recent filings,these mies must be read together with Grunden. See AE 507. As instmcted by the Army Courtof Criminal Appeals (ACCA) in Denver Post Corp., Grunden can provide focus on how to applyand make the closure decision provided for in RCM 806 and MRE 505(j). Below, the UnitedStates highlights the details underpinning various courtroom closures, focusing particularly onwhat courts have relied upon to close the courtroom, to what extent the courts have closed thecourtroom, and what, if any,measures the Court may adopt, both during and after court closure,to ftirther control that which is closed to the public. The United States has includedamoreexpansive and thorough case-by-case explanation of courtroom closures, both in military andfederal courts, in the subsequent section.A. Demonstration ofNeed for Closure.G^^^^^^ makes it clear that the Court's"task is to determine whether the perceived needurged as grounds for the exclusion ofthe public is ofsufftcient magnitude so as to outweigh ^thedanger ofamiscarriage ofjustice which may attend judicial proceedings carried out in evenpartial secrecy'."G^^^^^^,2M.J.at 122(citing^^^^^^^^^^^^,V.^ ^^^^^^^^^^C^^^^^^^^C^.,506F.2d 532,539 (2d Cir. 1974)). G^^^^^^ continues that "the prosecution to meet this heavyburden must demonstrate the classifted nature, if any,ofthe materials in question."^^. at 122.As the following cases and enclosed material prove, the "method used by the prosecution tosatisfy this burden...will vary depending upon the nature ofthe maleriais in question and theinformation offered."In^^^^^^^^^^^^v^^^^^^^^,31MJ 849(N-MCMR 1990,^^^^^^^^^^^,35ML396(C.M.A.1992),govemment counsel met its burden by demonstrating the need for closureduring witness testimony consisting ofclassifted information with swom afftdavits which setforth "^aj list ofthese offtcers^who will provide testimony on classifted mattersland thegovemment'srationaleforrequesting that they testify in closedsession."^^.,at 853. TheCourtinterpreted G^^^^^^ to require "individualized decision-making as to speciftc ^^^^^^^^^^^ whichthe Govemment asserts must be exempted from disclosure atapublictrial"^^^^ judicialftndings for each closed session. ^^^^^^^^^^^,31M.J.at854(emphasisadded). Here, theUnited States submitted its list of witnesses andadetailed description of the testimony for whichclosure is sought, and the applicable classiftcation guides conftrming the classiftcation level ofthat information. ^^^AE 505. The United States has demonstrated the need for closure under^ . extent ofclosure.Pursuant to G^^^^^^ and consistent withRCM 806, the prosecution must then justifyclosure by specifying "which witnesses will testify on the^matter at issue as well aslwhatportion ofeach witness'testimony will actually be devoted to this area" and the Court must"decidelon^the scope of the exclusion ofthe public."^^. at 123(ftndingthat,"evenassumingavalid underlying basis for the exclusion ofthe public, it is error of^constitutional magnitude'toexclude the public from all ofagiven witness'testimony when onlyaportion is devoted todassiftedmaterial"). This Court must "engage in the necessary analysis as to each witness'expected testimony and to understand in advance how and why it could touch onaclassiftedmatter before excluding the public." ^^^v^^.^^,^^C^^.,2005 WL6519929,at3;.^^^^^,^^G^^^^^^,2M.J.at 121-22. Todo so,the Court noted that it may "require counsel for both sidesto disclose the subjects of their questions forawitness in advance inaclosed session." D^^v^^2005 WL65199^9,at3 On 15March2013,the United Statesdidjustthatbyprovidingthis Court with the detailed subjects of its questions for each witness whose testimony it requestscourtroom closure. See AE 505. The United States is aware of no case law requiring more thanthe subject of that which will be elicited during the closed proceeding to justify closure. Theissue, therefore, is to what extent the courtroom may be closed.Generally, the extent of closure depends entirely upon the facts and circumstances ofeach case. See ABC Inc., 47 M.J. at 365 ("every case that involves limiftng access to the publicmust be decided on its own merits ... and the scope of closure ... tailored to achieve the statedpurposes") (referencing San Antonio Express- News v. Morrow, 44 M.J. 706, 710 (A.F.C.M.R.1996) and Hershey 20 M.J. at 436); see also Grunden, 2 M.J. at 121 (emphasizing theimportance of a balancing test employed to examine and analyze the need for and scope of anysuggested exclusion). In UnitedStates v. Terry, 52 M.J. 574 (N.M.C.C.A. 1999), the Court citedGrunden saying:While we did note in Anzalone that the closed portion of the trialwas limited to 79 pages of the 479-page record of trial, oursuperior court expressed quite clearly in Grunden that "thepropriety or impropriety of the exclusion of the public from all orpart of a trial cannot, as attempted by the Govemment in this case,be reduced to solution by mathematical formulas. The logic andrationale governing the exclusion, not mere percentages of thetotal pages ofthe record, must be dispositive."Terry, 52 M.J. at 578 (citing Grunden, 2 M.J. at 120 fh 2) (emphasis added). This position isconsistent with the Supreme Court's decision in Globe Newspaper Co. and numerous federalcircuit court cases. See Globe Newspaper Co., 457 U.S. at 605 (finding that the interestsupporting the exclusion is what should drive closure inquiry); In Re Washington Post Co. v.Soussoudisi, 807 F.2d 383, 392 (4th Cir. 1986) (the trial court is required to execute the closureanalysis by evaluating the principles and interests at stake, considering possible altematives, andarticulating findings adequately supporting their closure decision); Judd v. Haley, 250 F.3d 1308,1319(11th Cir. 2001); Thunder, 438 F.3d at 868; Walton v. Briley, 361 F.3d 431, 433 (7th Cir.2004); see also Ayala v. Speckard, 131 F.3d 62, 70 (2nd Cir. 1997) (the greater the closuresought, the more "must be the gravity of the required interest and the likelihood of risk to thatinterest").For courtroom closures based on the disclosure of classified information, the courts inLonetree and Denver Post are again instmctive. The Court in Lonetree made it clear that theextent of closure for purposes of divulging classifted information should be focused on theparticular information for which closure is sought. See Lonetree, 31 M.J. at 853 (stating that"MRE 505 is directed towards the information sought to be exempted from disclosure at publictrial" and thus when "the information may be divulged by a number of witnesses or documents,or both, the focus of exclusion is upon that specific information"). The Court explained that "thespecificity required [in the military judge's decision] addresses the information to be protected,not through what method it is disclosed." Id. Here, as in Lonetree, the scope of exclusion shouldbe focused on the specific classified informafton that may be divulged.In^^^^^^^^, the appellate court applauded the extent ofclosure employed as "the fairestand most practical that could be devised" and one that "allowed both partiesareasonably normalcontext within which to pursue their respective positions." ^^^^^^^^^^^,31 M.J.at 853. Theextent ofclosure in ^^^^^^^^ was follows:The extent of the closures was determined by^^^^^^^ Governmentor defense. The militaryjudge had already determined whichinformation, because of its classifted status,would be presented inclosed sessions. The fact that certain unclassifted information wasdisclosed by individuals whose duties and identities could not bepublicly matched-up was necessary to protect classiftedinformation. Further bifurcation of other witnesses^ testimony,other than as occurred,was impracticable and would have createdunnecessary chaos.^^^^^^^^,31M.J.at854. Other military courts also recognize that, in some circumstances,bifiircating testimony may be impractical. In^^^v^^^^.^^C^^.,forexample, thcACCAcontemplated that "inafew instances, the witnesses^ testimony could be fairly characterized asso inextricably linked to classifted matters as to make it all properlyreceived inaclosedscssion."D^^^^^^^.^^C^^,2005 WL6519929,at3.TheCourtagrccd thatit could bedifftcult ifnot impossible to separate the classifted information from the unclassifted informationfor several witnesses who dealt directly and solely with the investigative and initial reporting ofthe events under review.C. Control or Curative Measures.Even after the public is excluded from the court, the Court has available control orcurative measures toftirthermaximize the openness ofthe proceeding. In .P^^.^,^^^^^^^^.^^, theSupreme Court noted that "[wjhen limited closure is ordered, the constitutional values sought tobe protected by holding open proceedings may be satisfted later by makingatranscript of theclosed proceedings available withinareasonable time, if the judge determines that disclosure canbe accomplished while safeguarding the [interest requiring protection!." ^^^^^-^^^^^^^^^^C^.,464U.S.at^l2. This guidance has been echoed by federal cases in numerous circuits..^^^^.^^A^^^,^^^^^,^v.C^^^^^^.^-^^^^7^^^,641F.3d168(5thCir.2011);,^^^7^^^^Fed. Appx.3^4(2nd Cir. 2004) unpub. Therefore, at trial,should this Court determine thatdisclosure of some testimony elicited during the closed proceeding is not "necessary to permitacontextual and complete understanding ofthe classifted testimony" and would not jeopardize theprotection ofclassifted information, the Court may order an unclassifted portion ofthe transcriptofthe closed proceeding to be made available. ^^^F^nclosurel. Another possibility under thisscenario is for the witness, whose testimony duringaportion ofthe closed proceeding may bedisclosed to the public withoutriskingdisclosureof classifted information, to provide anunclassifted summary ofthose portions oftestimony which can be disclosed to the public.D. Digest ofCourtroom Closures.The below cases and enclosed trial materials may be helpfiilin understanding what otherjudges have considered, but also do not articulate clear thresholds. The United States has foundno federal authority explaining how much material the Govemment must put beforeaFederaltrial judge in order to meet ^^^^^ balancing test requirements. Instead, both military and federalcase law suggest that facts and notaparticularpercentagcoraspeciftc asserted interest arecontrolling.The below cases are consolidated into the following sections: (l)federal cases closed onthe merits but not for classifted information; and (2)military cases closed for classiftedinformation. In the ftrst section, each paragraph details the extent to which the proceedings wereclosed as well as whythe appellate authority found the closure in constitutional accordance. Inthe second sections, paragraphs include information on the stageofproceeding closed, the extentofthe closure, and information onjustiftcation forthat closure.The United States has provided as enclosures abbreviated versions ofmany ofthe sourcescited because they are not available onWestlaw or LexisNexis. These enclosures will beadditionally referenced parenthetically in the respective citations. Additiona11y,one oftheenclosures is provided to the Court ^.:^^^^^^. TheUnited States will providearedacted versionofthis enclosure to the defense.i. Federal Case Examples: Closed onMerits but not for Classifted Information,B^^^,^^^v.^^^^^,586F.3d439(6thCir2009)^Closedft^r Witness Protection^ Misconduct and Ontcome^The defendant was convicted of (intent to commit)murderand possession ofaftrcarm during commission ofafelony in Michigan state court.^Extent ofClosnre^ At the start ofthe initial trial, the prosecutor moved to close thecourtroom to spectators during the testimony ofthree prosecution witnesses(two ofwhom claimed to have seen the shooter). The three individuals were afraid to testifypublically given that two other prosecution witnesses had been killed under suspiciouscircumstances. The prosecution requested total closure; the defense acquiesced butrequested closure not be ordered in presence ofjury. The trial court did not removeanyone from the courtroom, but instead instmcted in the absence ofthe defendant'srelatives.^Jnstificarion^The appellate authority noted the absence of trial courtftndingstofacilitate its decision and expressed concems about thebreadth ofthe closure ordered^saying, the "prosecution offered no proofthat Johnson or anymemberofJohnson^sfamilywas involved in the death ofthose individuals" and "did not point to any incidentsin which the witnesses at issue had been threatened or otherwise contacted by anymember ofJohnson^sfamily."(emphasis added) The court also mentioned that the recordcontained no evidence the defense'sfailure to object was strategic.•Disposition: The Federal district court granted partial appeal to consider whether thedefendant was denied his right to a public trial. After considering the above, the Courtordered an evidentiary hearing "to determine [among other things] whether closure of thetrial was justified."Smillie v. Greiner, 99 Fed. Appx. 324 (2nd Cir. 2004) unpub. - Closed for the protection ofinformants and offtcers^ Misconduct and Outcome: Co-defendants (convicted of various crimes) allegedabridgement of their Sixth Amendment right to a public trial.Extent of Closure: The courtroom was fully closed during the testimony of aconftdential informant and an undercover police offtcer.^Justifications With regards to the conftdential information. The court stated the safetyofthe witness was an "overriding interest" and that the closure occurred solely during theCl'stestimonymcant the closure was "no broader than necessary." Additional1y,ho1dingthat where neitherparty suggested altematives, trialjudges are not obliged to considerthemand so, the altematives prong was satisfted. Andftnally,sincethe trialcourt'sftndings were explicit that there were threats to the informant'slife and family,theftndingsprong was likewise satisfted. These same reasons applied to the offtcer. Vetthe appellate court expanded its mention ofthe interests at issue to include protecting hisuseftilness as an undercover offtcer. Moreover, the Second Circuit concluded that bymaking the transcript available to the public and not scaling the courtroom for other lawenforcement offtcers, the trial court demonstrated thai it used discretion in closure.^Disposition^The Second Circuit held both closures comported with the requirementsofthe 1^^^^^ balancing analysis.^Note^.^^^^^^v^^^^^,237F.3d125(2ndCir.2001),.^^^^v.^^^^^^,^^,196F3d350(2nd Cir 1999),and^^^^^v^^^^^^^,131F3d 62 (2nd Cir 1997) also uphold thetrialcourt'sdecision to fully close the courtroom to hear the testimony of an undercoverpoliceofftcer for very similar reasons as ^^^7^^^.^ Though earlier than the two casesdescribed above, all three are published.AppIieation^The above cases are consistent with the proposition that what matters most toappellate courts considering whether the public trial right has been abridged is notaparticularinterest or amount of closure, but rather that the trial judge has: taken the time to gather the casespeciftcinformation,weighed the interests at stake, considered proposed altematives, andordered closure targeted only at those interests through ftndings. In conducting that evaluation,the cases highlight that closure forthe entire testimony ofasingle witness can be "no broaderthan necessary" ifthe interest warranting closure attaches to that witness, and that by keeping the' The Federal circuit courts have also approved total closure to protect victims and minor children. These cases arenot relayed here because the subject matter differs more from the interests driving the Govemment's pursuance ofclosure in the case at hand. However, information on these courts and their application of the balancing tests usedcan be provided to the Court should the Court desire.court open for other witnesses ofasimilar type that trial court can demonstrate discretion.Fina11y,the cases highlight that ability to produceatranscript can alleviate some ofthe publictrial concems. This last proposition is also supported by Supreme Court case ^^^.^.^-^^^^^^^.^^and Fifth Circuit case^^^^.^^V^^.^^^^.^vC^^^^^^.^G^^7^^^,641F.3d168(5th Cir. 2011)(hereinafter .^^^^,^^) The^^^^.^^ court wrote: "^Whcn...closure is ordered, the constitutionalvalues sought to be protected by holding open proceedings may be satisfted later by makingatranscript ofthe closed proceedings available withinareasonable time, if the judge determinesthat disclosure can be accomplished while safeguarding'the interest that gaveriseto the need forclosure." ^^^^.^^at181citing.^^^,^,^-^^^^^^^.^^at512.In the case of classifted information,perhaps any unclassifted information which surfaces during the closed testimony could beproduced asaredacted transcript as soon as practicable.ii. Persuasive Military Case Examples: Closure for Classifted Information^^^^^^^^^^^^v^^^^^^,2011WL414992(ACCA2011)unpub^^ Misconduct and Outcome: Defendant pled guilty to and was convicted of wrongfullymaking and storing classifted information in violation ofaregulation and possessingpomography in violation ofageneral order. He was further found guilty of failing toobeyalawftil order, conduct unbecoming, and retaining national defense information.^Extent of Closure: According to the record oftrial, the case involved seventeencourtroom closures to hear the classifted portions ofsome sixteen ofthe total forty-twowitnesses. These portions include both classifted and unclassifted material. There werealso two additional closures^oneforaG^^^^^^ hearing and one to consider closureunderRCM 506 (unclassifted Govemment information).^Justification: While the record does not conlainawritten closure order or writtenftndings on closure, the Court did haveaG^^^^^^hearing^atranscript ofwhich isenclosed with this ftling. Enclosure 2.^ In the hearing the Court considered theclassifted information in three sections^agroup of documents already spedfted asappellate exhibits,agroupofrcdacted documents from which defense requested use ofinformation behind redactions, andathird smaller group of documents having beenrev^iev^ed laterthan the others. Notwithstanding the separate ^oupings, the Courtundertook virtually the same inquiry.The prosecution began by referencing the documents'classiftcation and the OCAdeclaration and affidavits related to it. Lventually, the prosecution spedfted whichwitnesses it anticipated testifying about those documents. When presenting thisinformation to the court, the Govemment spedfted only that the witness would cover^^s courtroom closure issues were not raised on appeal, the citation offered here is provided so the courtmayreference background information for and appellate consideration ofthe case. It is not intended asacitation tor theclostire employed in the original trial.^TheCourt also hadahearing on closure under ^1^^. .isthat hearing tocused on closure for non-classifiedinformation pursuant toal^ule not at issue here, neither is the transcript of any ^1^^ proceeding enclosed nor does theabove closure description describe anypotential endings on that issue.9how the document related to national defense, how the information could be used to theinjury ofthe United States, and how it related to the elements ofthe charged offenses.The prosecution did not address what exactlythe witness would say. Then, the militaryjudge would announce either the document and general description thereof ("defense planfor ^ " ) or the piece ofinformation the defense wanted to use ("information aboutVprocedures" or "^-kind ofpeople") and its classiftcation marking. Thejudge wouldmention he had considered the relevant OCA declarations and document markings andwas satisfted that1)the documents were properly classifted in accordance with relevantLxecutive Order provisions and2) their public disclosure posed reasonableriskofharmor danger to national security interests. After the inquiry about the information in eachsection, the Judge would ask the trial counsel about the method ofits intended expression(testimony). Heexplained that this inquiry matters so that he can determine how thesessions would ftow in the interests ofjudicial economy and public movement. Hespedfted in most circumstances that the counsel should callawitness, have that witnesstestify to the greatest extent possible about unclassifted matters such as biographicalinformation and then proceed intoaclassifted session. However, thejudge recognizedthat some identity informationmayitselfbe classifted and therefore warrant greaterclosure.During the hearing, the judge also commented that impact witnesses could announce anunclassifted general opinion in open court yet discuss speciftc opinions and the exampleson which they are based in closed court. Moreover, he suggested that theftndingsaboutharm and classiftcation on which the courtroom closure order is based could be applied toany witness who would testify about classifted information addressed notjust thosewitnesses spedfted during the session.^ Finally,he also noted that counsel shouldconstmct direct examination questions bearing in mind that classifted information shouldbe elicited together so as to minimize the opening and closing ofthe proceedings.^Disposition: Public trialrightswere neither raised b^ the accused nor addressed by theappellate authority on appeal. Apart from one speciftcation on other grounds, the guiltyftndings were affirmed.Proposition: This case is highly instructive for ftve main reasons. First, thejudgeindicates that courtroom closure is appropriate wherever the content ofthe classifteddocument must be discussed. Second, that the judge had to holdaG^^^^^ hearing tospecify those bits ofinformation the defense wished to use but which otherwise requiredredactions, highlights the limitation ofredactions as an altemative to closure. Thisisconsistent with the Govemment'sdiscussionofredaction as an altemative in its initialG^^^^^^ ftling. ^^^AF^480. Third, that thejudge considered the information ftrstbefcire inquiring about the method ofits introduction is consistent with the instmction in.^^^^^^^^ that it is the information and not the method ofits delivery which requiresspeciftcity. This proposition is furtherrespected by this judge'swillingness to decideatopic ofinformation warrants closure and then applythat closure requirement to anywitness who maytestify about it^only asking the counsel which witnesses will discuss4This comes from Page 285, Line 18- 286, Line 14 in the classified ex parte filing provided to the Court. SeeEnclosure 3. Other descriptions provided are evidenced primarily in the unclassified portions.10the information in order to establish its relevance and getaprojectionofproceeding ftow.Fourth, the judge recognizes that just becauseawitness may be able to give anunclassifted general opinion ofimpact, it should not prevent counsel ftom elicitingamore speciftc opinion including classifted examples during closed session. And ftnally,the judge mentioned how the counsel should constmctadirect examination by groupingall classifted information together but never asked them to provideacopy ofthosequestions.U^^^^^^^^^^.^v^^^^^.^^^,68ML 378 (CAAF2010)^^ Misconduct and Ontcome:The accused was convicted of conduct prejudicial to goodorder and discipline as well as attempting to give intelligence to the enemy, tocommunicate with the enemy,and to aid the enemy.^Closure: During the lower court proceedings, the militaryjudge ordered courtroomclosure for two witnesses.^Justification: One witness would testify to unclassifted but sensitive and not publicallydisclosed infomiation about weapons systems. The Govemment sought MRE 506closure.^ The other witness would testify to classifted weapons system information.^Before making the closure decision, thejudge held an Article 39(a) session for thepresentation ofevidence and argument. Although the United States is not in possessionofthe classifted record oftrial, the closure order reveals that thejudge in^^^^^.^^^applied the balancing test after having reviewed the evidence and the relevantclassiftcation declaration or privilege assertion with the Court Security Offtcer. Thejudge found proper classiftcation and the risk ofharm. The conclusions oflaw mirroredtheseftndings,applying the preponderance ofthe evidence standard to provingreasonabledanger ofharm. The Court noted too that Govemment had "delineated thoseportions ofits case that involve" the materials at issue. The judge ultimately orderedclosure for anytime it was reasonably expected that the classifted content ofthe protectedexhibits ortestimonymust be displayed or discussed, must be directlyreferenced duringargument or testimony,or must be referenced by the court on the record.Enclosure 5.^As courtroom closure issues were not raised on appeal, the citation oflered here is provided so the Court mayreference background information for and appellate consideration ofthe case. It is not intended asacitation tor theclosure employed in the original trial.^ ^ 1 ^ 5^6 docs not explicitly authori:^c courtroom closure and l^P^ 505 does. Therefore, to close pursuant to^ 1 ^ 5 0 6 , the Oourt would have to fnlly explore the contention that ^ 1 ^ 5 0 6 information constituted an overridinginterest under P^^lVl 806, whereas, to close the courtroom pursuant to ^1^505, the court^ust has to be convinced,byapreponderance of the evidence, that the evidence is properly classified and thus deserves lVll^505(i^protection. In the face of that burden, the united states acknowledges that just like in .^derson,a^ourt consideringclosure may wish to consider witness testimony for 1^1^ 506 information because it is not self-evident or easilyunderstood as warranting protection, yet can rely on classification markings and substantiating documentation suchas classification reviews and classification guides tor ^1^505 infrormation.^Thisreqnest to close the court to hear classified infrormation appears from the closure orderto have been madeorally before the court. The Ignited states has been unable to find refrrence to this oral request in the unclassifiedrecord oftrial in its possession, ^written rec^uest wasfroundas an appellate exhibit however.Enclosures.11^Disposition: Although the case was considered by an appellate court, neither did theaccused raise nor did the appellate courts consider public trial issues during their reviewofthe case record. CAAFafftrmed.^Proposition: Like the other closure cases, ^^^^^.^^^ suggests that when the content ofclassifted information is put forward closure is warranted. Further, it highlights^^^^^^^^^^^^q^^^^^v^^^^^^^ as the standard to which the Govemment must prove thatthe information at issue was properly classifted and can reasonably be expected to resultin harm ifimproperly disclosed. Finally,the closure order notes the Govemment haddelineated where it expected the information to be involved in its case. In this case, theUnited States has done more^delineating not only where the information will be elicitedwitness by witness, but at what stage ofthe case, to what level ofdetail, and to whatrelevant end. ^^^AE505.^^^^^^^^^^^.^vD^^^,69ML127(CAAF2010)and^^^^^^^^^^^^(NMCCA2009)^^ Misconduct and Ontcome:The accused plead guilty to violatingalawftil generalregulation, conduct unbecoming an offtcer, as well as unauthorized removal andwrongful communication ofclassifted information.^CIosnre:The trial judge closed the courtroom to hearthe classifted testimony oftwowitnesses regarding the same classifted document.^Jnstiftcation: In considering the overriding national security interest proffered to warrantcourtroom closure, the judge considered: the assertion of classifted information privilegebythe Deputy Secretary ofDefense,amemorandum by the Original ClassiftcationAuthority(OCA), the declaration ofthe person(also one ofthe witnesses)whodetermined the document at issue was properly classifted, as well as the relevantclassiftcation guide and associated instmctions. Thejudge articulatedftndingswhich:identifted the classifted document to be discussed, supported the conclusion that thedocument had been properly classifted, stated that serious national security damage couldbe reasonably expected based on the documcnt'sclassiftcation designation, explainedthat closure would occur for each oftwo witnesses, noted no defense objections tocourtroom closure to protect classifted information, and inferred that defense crossexamination would likely also elicit dassifted information. His conclusions mirroredtheseftndings^articulatingtoo that the document had been c1assifted,was relevant to thecase, and required courtroom closure for classifted discussion. The conclusions alsostated that the Judge had conducted the proper balancing analysis and found the interestto be overriding. Lastly, the conclusions explained that altematives would be used to theextent possible but also that they would not allow forthe classifted content to beadequately presented and explored. Court closure was "necessaryto permitacontextualand complete understanding of the classifted testimony",allow for effective cross-.^s courtroom closure issues were not raised on appeal, these citations are provided so the Court may relerencebackground information for and appellate consideration of the case. They are not intended as citationsfr^rtheclosure employed in the original frial.1^examination, and permit clariftcation if necessary. Moreover, the judge highlighted thatthe testimony would be bifurcated - presenting classifted information during closedsessions and unclassified information during open session. During the open session, thewitness could explain unclassified details such as background, biographical information,and an unclassified summary ofhis testimony. The closed session, he concluded, couldinclude only so much unclassified information as necessary to preserve the coherence ofthe classifted testimony. Finally, in addition to ordering closure for the Govemment'scase-in-chief, the judge preserved the opportunity to do so again should the defense'scase necessitate it. See Enclosure 1 ?•Disposition: Though considered twice by appellate authorities (one in a publishedopinion), neither did the accused raise nor did the appellate courts consider public trialissues during their review of the case record.#Proposition: This closure order helps showcase four things. First, in it, the judgediscusses the limitations of affidavits, unclassifted summaries, and unclassifted testimonyas altematives to classifted testimony in closed session. This is similar to the judge'sdiscussion of redactions in Steele and Ledford. And, it is consistent with theGovemment's explanation of altematives in its original Grunden ftling. See AE 480.Second, and relatedly, this closure order anticipates that the closed classifted sessionsmay include such unclassified material as necessary to preserve the coherence of andensure context for the classified information. This is consistent with the actions inLonetree. It demonstrates that a closed classifted session can include unclassiftedinformation without ceasing to be narrowly tailored. Third, in a way also consistent withLonetree, this closure order idenfiftes biftircation as an important tool for courts todemonstrate discretion and their use of the Grunden "scalpel." In fact, in Grunden, thecourt writes "bifurcated presentation of a given witness' testimony is the most satisfactoryresolution of the competing needs for secrecy by the govemment, and for a public trial bythe accused." Grunden at 123. In its original Grunden filings, the United States spedftedclosure was only sought for those portions of the testimony which are classifted. See AE480 and 506. In so doing, the United States is recognizing and requesting bifurcation asan important "scalpel." Fourth, like Steele, this closure order is instmctive as itemphasizes open applicability of theseftndingsto whatever witnesses may need to testifyabout the classifted information considered. Consistent with Lonetree's explanation thatspeciftcftndingsare not required witness-by-witness or method-by-method, the orderrecognizes that witnesses other than those spedfted in the motion at issue may requireprotection. The judge notes that a party should notify the court of infbrmation "whichmight necessitate additional closed sessions."United States v. Ledford, US Navy Southwest Judicial Circuit (2005)• Misconduct and Outcome: The only material in the prosecution's possession regardingthis case is the judge's closure order. As no appellate information is available nor is therecord of trial in the Govemment's possession, it caimot providefiirtherbackgroundinformation on this case.' The Diaz Court's protective order, Enclosure 6, and the Prosecution's motion. Enclosure 7, are also included forthe Court's reference13Closure: Thejudge ordered closure for the introduction ofclassifted evidencedoccurring only during the portionsofawitness'testimony in which it was reasonablyexpected that the classifted content of the protected exhibit or testimony must bedisplayed or discussed. The court spedfted closure fbr identity-protected witnesses,classifted linkages between persons and missions, classifted video footage, and classifteddocument contents.^Justification: In this case, two Article 39(a) sessions were held fbr the parties to makeargument and present evidence on courtroom closure. The judge'sftndings articulatedthe general type ofinfbrmation being proteded (i.e."discussions or viewings oftactics^rolls^locations"), how that infbrmation would be protected, and what general harmwasriskedif the infbrmation was revealed (i.e."wou1d reveal fbreign govemmentinfbrmation[and] intelligence sources and methods"). Theftndingsdemonstrated theirconsidered nature by specifying that altematives would be used until the classiftedcontent needed to be discussed. Finally,theftndingsexplained thaf the judge'sreview ofthe evidence with the accompanying classiftcation declarations reveal that theGovemment had established byapreponderance ofthe evidence that classiftcation wasproper. The judge'sconclusions explained: therightsat stake; the burden on theGovemment to show the classiftcation and reasonable danger posed by disclosure oftheinfbrmation at issue; that the judge had conducted the required analysis; and that theevidence was relevant, neccssary,and otherwise admissible. The actual closure "order"section stated alternatives would be used according to the purpose they serve but thatcourtroom closure would be used wheneverthe classifted content required exploration.Additionally,this section explained generallythe order in which the classifted andunclassifted sections would occur. Final1y,the judge required onlythat the counselnotify the court prior to opening statements which witnesses they anticipated requiredcourt closure and then notify the court prior to eliciting the information that thatdiscussion was coming.Enclosure 8.Disposition: The United States has fbund no evidence that this case has been appealed.I^^oposition: This closure order is helpful in that it demonstrates howajudge can reallyfbcus his or her mling on the information warranting protection. Doing so is consistentwith the infbrmation-centric emphasis explained in^^^^^^^^ and exempliftedbyFurther, in providing infbrmation centeredftndings,the order also demonstrates theextent to which altematives such as screens and shields are limited. It shows they areuseful ifwhat needs hiding is visual, but not ifthe infbrmation to be protected is oralcontent warranting exploration. This is consistent with the Govemment'sdiscussion ofaltematives in its initial G^^^^^^ ftling. ^^^AE 480. Also, this closure order highlightsthaf the Govemment need only convince the Court ofproper classiftcation and ofreasonably expected harm bya^^^^^^^^^^^^q^^^^^v^^^^^^^. That the judge relied onareview offhe evidence and OCA declarations, suggests he did not feel the need to callwitnesses to testify during the closure hearing. Finally,fhisordcris useful as it explainsthe Court only expected infbrmation on anticipated witnesses affected befbre openingstatement and an alert when closure was imminent during testimony. Consistent with fhe14above-described Steele case, there is no requirement that the Court nail down exactly andftnally which witnesses require closure and know exactly where in the examination thatwill occur. Such an approach is also consistent with an information-centric and not awitness- or method-centric approach as advocated in Lonetree.UnitedStates v. Anzalone, 40 M.J. 658 (N.M.C.M.R. 1994)• Misconduct and Outcome: In this espionage case, the accused was a Marine chargedwith a variety of offenses arising, primarily, out ofhis contact with an FBI agent whomappellant believed was a Soviet Union intelligence offtcer.•Closure: The proceedings were periodically closed to the public. The closure ultimatelyamounted to 79 pages of the 479 page record, or approximately 16%.•Justification: The Court held the closure requirements had been met. It focused on theprobability of the prejudice and the limited nature of the closure. It stated that likelihoodof prejudice was established through descriptions of the classifted information (in thiscase, affidavits). As the trial was closed only when the defense or trial counselanticipated discussing classifted matters, the closure was appropriately limited. TheUnited States has been unable to locate any further information showing what theaffidavits contained or how the lower court judge actually ordered the closure.•Disposition: The closureftndingsof the lower court were afftrmed.•Proposition: This case shows that like those described above the trial court need nothear testimony about the information before ordering courtroom closure, but rather canrely on affidavits. Moreover, it suggests that by closing only where counsel anticipatedclassifted information to surface, the trial court made an acceptable effort to close nomore broadly than necessary.UnitedStates v. Martin, 2012 CCA LEXIS 848 (N.M.C.C.A. 2012) and UnitedStates v. Martin2012 CAAF LEXIS 427 (C.A.A.F. 2012)'°• Misconduct and Outcome: Intending to use his lawful access to classified nationaldefense information to reap personal monetary benefit, the accused was apprehendedsurrendering state secrets to a "Chinese govemment official" (in fact an undercover FBIagent). The defendant pled guilty to multiple specifications of espionage and gatheringdefense information in violation of UCMJ Articles 106(a) and 134.•Extent of Closure: According to the prosecuting trial counsel in this case, theGovemment's entire sentencing argument occurred in a SCIF based on the highestclassified nature of the information.As courtroom closure issues were not raised on appeal, the citation offered here is provided so the Court mayreference background information for and appellate consideration of the case. It is not intended as a citation for theclosure employed in the original trial.15^Justification: As neither the accused raised his Sixth Amendment righf nor did fhemedia or general public attempt to attend, public trial issues did not arise fbrconsideration bythe military trial judge.^Dlsposition:The accused did appeal to the Navy Marine Court of Criminal Appeals(secabove citation)on the severity ofhis sentence. The NMCCA considered the record andwas convinced the punishment received was deserved. Accordingly,the appellate courtaffirmed the lower court'sftndings. The Court ofAppeals fbr the ArmedForces deniedreview.^Proposition: While public trial issues in fhis case were not litigated, it is worth notingthat the appellate authority also declined to raise them. According to Federal case 1aw,asaConstitutionalquesfion,whether public trial rights have been violated is reviewed^^v^, and the speciftcftndingsofthe Court regarding fhe closure are reviewed fbr abuseofdiscretion. ^^^^^^^.^^af 174-75;,^^^^^.^^^^^^^at44;^^^^^^^,^^^^^.^v.^^^^^^,426F.3d567,571 (2nd Cir 2005);^^^^^^^^^^^.^v^^^^^^^,342F3d 948, 974(9thCir2003);^^^^^^^^^^^.^v.^^^^,473 F.3d 146,156(5fhCir.2006) And so, it stands to reason, thathad fhe appellate court, in reviewing the record, considered the closedoff nature ofthefacilify to have implicated the public or the accused'sconstitutional rights, it could haveelected to have evaluated those circumstances against the constitutional requirement fbrapublic trial. They did not.^^^^^^^^^^.^v.^^^^^^^^,31M.J.849 (N.M.C.M.R. 1990)q^^^^^^^^^^^^^^.^v^M J 396(CMA 1992),^^^^^^^^^^^^^,507US 1017(1993)^ Misconduct and Ontcome:The accused wasaMarine convicted by general courtmartial ofidentifying United States intelligence personnel to Soviet agents, providingplans and assignments ofUS embassy personnel, and failing to report contacts withcommunist citizens.^Closnre:The Military Judge excluded the public from the complete testimony of somewitnesses and portions of others. The accused alleged this amounted to 25% ofthetestimony.^Justification: During the original case, the Govemment presented two affidavits insupport ofits request fbr closure. The ftrst, classifted "SECRET,"explained thatwitnesses to be called bythe government were professional intelligenceofftcers whowould provide testimony on classifted matters. It also listed the govemmenfs rationalefbr requesting that they testify in closed session. The United States could ftnd noinfbrmation on how that rationale was articulated. The Govemment also sought toprotect certain spedfted intelligence sources and methods.The judge in the lower courtcase conducted his own analysis ofthese materials. In reviewing thaf court'sclosure, theNMCMR mled in favor ofthe Govemmenf^ftnding thaf the military judge properlyanalyzed and balanced the competing interests befbre ordering the closing offhe court tothe public when specifted classifted information was tobe presented. TheNMCMRwrote:16WedonotbelieveG^^^^^^mandatedjudicial ftndingsfbreachclosed session when the Court ofMilitary Appeals stated that"limited portions" of a court martial may be partially closeddespite defense objection . . . [but rather fbr] individualizeddecisionmaking asto speciftc infbrmation which the Govemmentasserts must be exempted ftom disclosure at a public trialwhenever that infbrmafionispresenfedduringthecourseof thetrial.If explained that, because MRE 505 focuses on fhe information af issue, speciftcity mustoccur with respect tothe information and not necessarily the method ofits disclosure.This stands in contrast fo closure fbr something like an individuals'privacyrighfs wherefhe interest being protected will vary accordingto fhe personal situation of each witness.And so, after classiftcation ofawitness'response had already been determined, to make"speciftcftudingseachfimeaseriesofquestionsistobeaskedofawitness...wouldbefo create unnecessary and dismptive biftircation ofthe trial and constitute an exercise inredundancy." The resulting confusion, fhe Court sfated,"wou1dmakeadifficu1f trial anincomprehensible one and would be the antithesis ofafair and orderlyproceeding". Infhe case of^^^^^^^^, fhe appellate court also fbund thaf the procedure fhe lower courtfollowed was "the fairest and most practical that could be devised." Namely:The extent of the closures was determined by either Governmentor defense, (sic) The military judge had already determined whichinformation, because ofits classifted sfafus,would be presented inclosed sessions. The fact thaf certain unclassifted information wasdisclosed by individuals whose duties and identities could not bepublicly matchedup was necessary to protect classiftedinfbrmation. Further bifurcation of ofher witnesses' testimony,other than as occurred,was impracticable and would have createdunnecessary chaos. In fact,the apparent inadvertent disclosure ofclassifted information by both partiesin public sessions occurredrather frequently despite the effbrts of the court fo ensurenondisclosure. The procedure utilized allowed both parties areasonably normalcontextwithinwhich to pursue their respectiveposition.^Disposirion:The accused appealed fhe trial court'sclosure decision fo the NMCMRclaiming, among ofher things, that the judge erred in failing to ftnd speciftc overridingnational securify interests fbr each closure and in failing to narrowlyfailor each closure.This NMCMR held that each closure did not requireftndingsand that fhe closures wereadequatelyfailored. The case was then reviewed by fhe Court ofMilitary Appeals onofher grounds. Its review did not disturb the public trial portions ofthe NMCMR'smling. The United States Supreme Court denied certiorari.^Proposition: This case is highlyinsfmcfive. It emphasizes the needto consider cases onan individual basis. If explains that speciftcftndingsaren'fnecessary fbr every closure17and goes on to explain that what matters is whether fhe infbrmation warrants protections.If demonstrates the persuasiveness of afftdavifs. And ftnally,it highlights bifurcation asan important scalpel tool.CONCLUSIONThe fbregoing digest of cases providesasnapshot ofhow previous judges have handledcourtroom closure. They highlight that courts have endeavored to use altematives andbifurcation to balance fhe public trialrightsagainst, but have nonetheless closed proceedings foallow witnesses to contextualize, discuss, and clarify classifted information af stake. Thesesessions have included unclassifted infbrmation tothe extent necessaryto preserve the coherenceofthe classifted testimony. The United States has fbund no indication that the parties have everhad to present examination questions in advance. Neither does there appear to be any authoritybehind havingawifness testify duringaG^^^^^^ hearing fo test the viability of altematives.Doing so would, the United States maintains, offend the need to consider infbrmation more thanmethod of elicifation or source when deciding whether protection is warranted in fheftrstplace.Moreover, it would hardly promote judicial economy because the degree to which altemativesmay or may not work fbr one witness'testimony cannot infbrm the degree to which they willwork fbr another testifying to separate information and inadifferent manner. Military appellateauthorities tmst trial judges tomake these decisions^requiringprimarilythat fhe courts simplyengage in fhe appropriate analysis. Courts must evaluate the principles and interests af stake,consider possible altematives, and articulateftndingsadequately supporting their decision onclosure. Vet they need not note speciftcftndingseach time fhe closure actually occurs. If is theUnited States'position thaf the evidence and classiftcation reviews coupled with the profferedtestimony provides more than enough infbrmation fbr the Court to safelymle to close thecourtroom.JEFFREVHWHVTECPT,JAAssistantTrial CounselASHDEN FIMAJ,JATrialCounscl8Enclosurcs1. ^^^^^ Closure Order2, ^^^^^^RedacfedTranscripf Excerpt3^^^^^^UnredacfedTranscripfExccrpt^^^^^^^["SECRET^^RELT0USA,MCFI]18» Govemment MotionAnderson Closure OrderDiaz Courtroom Protective OrderDiaz Govemment MotionLedford Closure OrderI certify that I served or caused to be served a tme copy of the above on Mr. DavidCoombs, Civilian Defense Counsel via electronic mail, on 29 March 2013.ASHDEN FEINMAJ, JATrial Counsel19


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