Feb. 24, 2005 -- An apparently inexperienced Army officer violated the law when he held a hearing behind closed doors to investigate charges against three soldiers accused of killing an Iraqi air force commander during interrogation in 2003, the Army's intermediate appellate court ruled Wednesday.
The U.S. Army Court of Criminal Appeals sided with The Denver Post, which had challenged an order by Capt. Robert Ayers to close a so-called Article 32 hearing at Fort Carson, Colo. The hearing was to determine whether the soldiers should stand trial in the death of Maj. Gen. Abid Hamed Mowhoush, who suffocated inside a sleeping bag in November 2003 while in U.S. custody in Qaim, Iraq.
The Post had argued that the First Amendment provides a qualified right of public access to courts-martial proceedings, as illustrated in military cases such as United States v. Grunden and ABC, Inc. v. Powell. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of the newspaper's appeal.
The Arlington, Va.-based court agreed with the media, ruling that Ayers -- who based his decision to close the hearing on secret testimony -- should have tailored the closure order narrowly to prevent disclosure of classified information. The court, which admonished authorities to appoint "more senior and experienced officers" to oversee these types of hearings, noted its decision should resolve similar issues bound to arise in future cases.
"I think it's a very clear ruling that embraces and reaffirms the standards set forth in Grunden and in Powell, and clearly must apply to all Article 32 [hearings], certainly within the Army, but I would think within all of the US armed forces," Post attorney Steven Zansberg of Faegre & Benson, LLP, said in a telephone interview. "I would think it should have fairly broad impact upon all similar proceedings going forward."
The government had not yet decided whether to appeal the decision to the U.S. Court of Appeals for the Armed Forces, according to Col. Steven T. Salata of the Army Legal Services Agency's government appellate division.
"I don't expect we'll see an appeal here, because I think they would receive a similar decision from the highest court," said attorney Matthew S. Freedus of Feldesman Tucker Leifer Fidell LLP, Washington, DC, co-counsel for the Post.
Chief Warrant Officer Jefferson L. Williams, Sgt. 1st Class William J. Sommer, and Spc. Jerry L. Loper stand accused of murder and dereliction of duty in the death of Mowhoush. The case apparently marks the first time a uniformed officer of an opposing military regime has died in the course of US interrogation.
After convening in open session, Ayers closed the Dec. 2, 2004 proceeding to hear evidence from a security specialist, who advised him that classified matters were "inextricably" linked to the investigation, according to the court's decision. Ayers shut out the public and press from the entire proceeding for the remainder of the day while he heard testimony from several other witnesses -- a decision the court deemed hasty, "ill-considered, overbroad, and clearly erroneous." A review of the transcript later revealed that in only "a few instances" was the testimony so intertwined with classified data that it justified closure, the court stated.
The Post filed its challenge on Dec. 3. That same day, the appeals court stayed the proceeding while the appeal was pending.
The government had contended the law was unclear whether the same standards for closure of courts-martial governed the pretrial Article 32 proceedings. But the court held that -- as with a trial -- an officer conducting an investigatory hearing must consider the substance of the testimony witness by witness and determine that all of a witness's testimony will disclose classified information before he can shut out the public and press. Otherwise, the witness must testify in open session as to non-classified information.
Although the court did not order Ayers to re-hear the testimony given behind closed doors, it directed him to release a transcript of the Dec. 2 proceeding to the public, with the portions containing classified information redacted.
Another troubling aspect of the case, which the appeals court did not discuss in its decision, was the fact that the Post's attorneys were not allowed to see the secret documents that the government submitted in support of its position. Freedus, a former criminal defense lawyer with Navy, said the court may have "glossed over" the issue because of a dearth of military legal precedent on it.
"I think it's something they're not accustomed to dealing with -- and since they were giving us much if not all of the relief we were seeking, I think they thought they were doing right by the petitioner here," he said.
The outcome of the case is still a hopeful one, especially against the backdrop of the war on terror, according to Freedus.
"I think it is important given the timing of the decision. I think it basically reminded practitioners that the well-settled standards still do apply in today's climate," he said.
A "handful" of witnesses have yet to testify, according to the Post. A spokeswoman at Fort Carson told the newspaper she did not know when the hearing would resume.
(The Denver Post Corp. v. United States, Media Counsel: Thomas B. Kelley and Steven D. Zansberg, Faegre & Benson LLP, Denver; Eugene R. Fidell and Matthew S. Freedus, Feldesman Tucker Leifer Fidell LLP, Washington, D.C.)
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© 2005 The Reporters Committee for Freedom of the Press http://www.rcfp.org/index.html.
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