The right to be present before military commissions and federal courts: protecting national security in an age of classified information

Harvard Journal of Law & Public Policy, Spring, 2007 by James Nicholas Boeving

A defendant's right to be present during trial is a touchstone of the American criminal justice system, and the precise scope of this right has substantial implications for the prosecutions of crimes involving terrorism. This Article explores the contours of the right to be present in the context of both military commissions and federal courts, examining what limitations, if any, might be placed upon it. The denial of this right by military commissions came under fire in Hamdan v. Rumsfeld. This Article questions the validity of such attacks by analyzing whether the right to be present in military commissions can be derived from the text of the Uniform Code of Military Justice prior to passage of the Military Commissions Act of 2006 and concludes that a defendant possesses no such right. This Article also explores the recent congressional response to Hamdan and examines whether the current scheme will adequately safeguard classified information. The Article then pursues a broader, and perhaps more important, inquiry: whether the procedures provided in Military Order No. 1, limiting the presence of the accused, could be adapted for use in trials in federal court. This inquiry begins by examining the precise boundaries of the right to be present under existing Confrontation Clause jurisprudence and concludes that this right could indeed be curtailed in certain, limited circumstances. The Article then proposes the incorporation of amendments into the Classified Information Procedures Act (CIPA) to allow for the removal of a defendant in limited circumstances, and outlines certain procedures that would pass constitutional scrutiny, at least in the first instance. The Article next confronts the problems that would arise in the case of a defendant wishing to proceed pro se and concludes that existing procedures allowing for the appointment of standby counsel are adequate to protect a defendant's right to proceed pro se. The Article concludes by noting that the proposed amendments to CIPA would vastly improve the ability to protect classified information in federal terrorism trials, but it also questions whether it would be more appropriate to allow terrorism prosecutions to proceed in military commissions rather than in federal court.

INTRODUCTION
  I. RECONSIDERING THE RIGHT TO BE PRESENT
     BEFORE MILITARY COMMISSIONS
     A. The Hamdan Litigation
        1. The UCMJ and the Right to Be Present
           Prior to Congressional Alteration
           a. Impracticability Under Article 36,
              Subsection (b)
           b. "Contrary to or Inconsistent with"
              Under Article 36, Subsection (a)
        2. The Geneva Convention and the
           Right to Be Present
     B. Congressional Response: The Military
        Commissions Act of 2006
II.  LIMITING THE "RIGHT TO BE PRESENT" IN
     FEDERAL COURT: AMENDING THE CLASSIFIED
     INFORMATION PROCEDURES ACT
     A. The Right to Be Present and Federal
        Criminal Trials
        1. Limiting Presence: The Practice in
           Sexual Abuse Prosecutions
        2. Judicial Review of a Decision to
           Exclude a Defendant
      B. Using the Classified Information
         Procedures Act in Terrorism Trials:
         An Argument for Amendment
         1. CIPA: History, Purpose, and Structure
         2. The (Mis)use of CIPA in Terrorism
            Trials
         3. Amending CIPA: Proposals for Change.
III. THE PRO SE PROBLEM
 IV. CONCLUSION

INTRODUCTION

The events of September 11th fundamentally altered the way many think about the balance between freedom and security. Numerous areas of domestic and international law have undergone unprecedented change, (1) not the least of which involve the rights of the accused in judicial or quasi-judicial proceedings held before military commissions and federal courts. (2) The Supreme Court entered the fray, issuing opinions about the scope of the writ of habeas corpus, (3) the right to detain enemy combatants until the cessation of hostilities, (4) and the rights of U.S. citizens held as enemy combatants. (5) Although pronouncements on these larger jurisdictional issues were no doubt necessary, the legal debate involving the rights of accused terrorists and unlawful enemy combatants entered a new, arguably more important, phase: determining the substantive and procedural rights due to the accused.

The substantive rights at issue include, but are not limited to, the right to counsel, (6) the permissible limitations upon counsel communications, (7) and the scope of permissible discovery. (8) These and other related issues are substantially discussed in legal scholarship (9) and are actively confronted by lower courts. (10)

One right which has received little attention in legal scholarship, however, is the right of an accused to be present during trial. The lack of scholarly discourse stems primarily from the perception that the existence of the right is largely settled, even if its precise contours may not be. (11) It is well established that there are certain instances where a defendant must be present, and other instances where his presence is not fundamentally required for the proper administration of justice. A secondary reason for the lack of scholarly discourse is that the right to be present is not textually provided for in the Constitution. Rather, it is entwined with the right of confrontation, (12) and thus is often inadvertently overlooked. (13) Indeed, when discussing the right of confrontation, the legal literature typically relies only on the text of the Sixth Amendment, which provides a defendant the right "to be confronted with witnesses against him," (14) whereas a tetxtual analysis of the right to be present is usually absent. Finally, the Federal Rules of Criminal Procedure also provide a largely unqualified right to be present, (15) thus adding to the clarity of the right and seemingly reducing the need for scholarly discourse on the topic.