21 January 2002
Source: Digital file purchased from Eastern Virginia District Court official reporter Norman Linnell; telephone (703) 549-4626.
See related case documents: http://cryptome.org/usa-v-zm-cd.htm
1 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA 2 Alexandria Division 3 4 -------------------------------: : 5 UNITED STATES OF AMERICA : : 6 : -vs- : Cr. No. 01-455-A 7 : : 8 ZACARIAS MOUSSAOUI, : a/k/a Shaqil, : 9 a/k/a Abu Khalid al Sahrawi, : Defendant. : 10 : -------------------------------: 11 12 13 HEARING ON MOTIONS 14 January 9, 2002 15 16 Before: Leonie M. Brinkema, Judge 17 18 19 APPEARANCES: 20 Robert A. Spencer, Kenneth M. Karas and Elizabeth D. Collery, Counsel for the United States 21 22 Frank W. Dunham, Jr., Edward B. MacMahon, Jr. and Gerald T. Zerkin, Counsel for the Defendant 23 24 Lee Levine and Jay W. Brown, Counsel for C-SPAN and Court TV 25 The Defendant, Zacarias Moussaoui, in person Norman B. Linnell OCR-USDC/EDVA (703)549-4626 2 1 NOTE: The hearing begins in the presence of the 2 defendant as follows: 3 THE CLERK: Criminal case 2001-455-A, the United 4 States of America versus Zacarias Moussaoui. 5 Will counsel please note their appearance for the 6 record. 7 MR. SPENCER: Good morning, Your Honor. Rob 8 Spencer, Ken Karas and Liza Collery, who is here from the 9 Department of Justice, on behalf of the United States. 10 THE COURT: Good morning. 11 MR. SPENCER: Good morning. 12 MS. COLLERY: Good morning. 13 MR. DUNHAM: Good morning, Your Honor. Frank 14 Dunham and Mr. Ed MacMahon and Mr. Gerry Zerkin on behalf of 15 the defendant Zacarias Moussaoui. 16 THE COURT: All right. And the defendant is 17 present. 18 All right. And for the intervenors? 19 MR. BROWN: Good morning, Your Honor. Jay Ward 20 Brown for intervenors Courtroom Television Network and the 21 C-SPAN Networks. 22 And, Your Honor, I have with me this morning my 23 partner Lee Levine, whose motion for admission pro hac vice 24 the Court has already granted. 25 And I would ask that the Court hear from Mr. Levine Norman B. Linnell OCR-USDC/EDVA (703)549-4626 3 1 this morning. 2 THE COURT: All right. That's fine. 3 We are here today to hear briefly from intervenors. 4 My understanding is that Court TV and C-SPAN have essentially 5 filed the same motion, and they are the intervenors. And we 6 also have a series of amicus briefs which the Court has 7 received and has been able to go over. 8 So, Mr. Brown or Mr. Levine, whoever wishes to make 9 the argument for the intervenors, may do so. 10 MR. LEVINE: Good morning, Your Honor. 11 THE COURT: Good morning. You don't need to just 12 repeat what is in your papers. Obviously you may want to 13 respond either to matters raised in the amicus briefs or to 14 the oppositions -- the opposition of the United States, as 15 well as the position of the defendant, which I think has 16 sometimes been mischaracterized as the defendant asking for 17 broadcasting. There were a lot of caveats in their position. 18 And they basically, I would deem that to be a we don't oppose 19 if certain conditions apply, but not actually a request by 20 the defense for a broadcasting. 21 MR. LEVINE: That's how I read it, Your Honor, as 22 well. 23 THE COURT: All right. 24 MR. LEVINE: Your Honor, with that understanding, 25 let me get right to the points that the Government makes in Norman B. Linnell OCR-USDC/EDVA (703)549-4626 4 1 its opposition to our request. 2 The Government contends that the Supreme Court has 3 ruled that the right to observe criminal trials does not 4 encompass a right to observe on television in appropriate 5 cases. This is simply not the case. The Supreme Court has 6 never so held. 7 The Estes case on which the Government relied 8 involved a criminal defendant's claim that he was denied a 9 fair trial because proceedings in his case were televised. 10 That was not a suit involving a First Amendment right to 11 observe that trial via television. There is dicta in the 12 case concerning the First Amendment, but fairly read, that 13 dicta does not survive the holdings of the Supreme Court in 14 the Richmond Newspapers case and its progeny. 15 The Government also relies on Nixon versus Warner 16 Communications. That too was not a claim of a First 17 Amendment right to observe criminal trials through 18 television. That was a claim for access to audio tapes 19 played in court. 20 The only First Amendment claim addressed in that 21 case, albeit in dicta, is one that we do not make, that the 22 press is entitled to greater rights than the public. We do 23 not make that argument in this case. 24 Now, the Government also relies on a series of 25 appellate decisions, specifically the Hastings case out of Norman B. Linnell OCR-USDC/EDVA (703)549-4626 5 1 the Eleventh Circuit. All of those cases do postdate 2 Richmond Newspapers, and all of them purport to hold that 3 Rule 53 is constitutional. But these cases, which do not 4 include one from the Fourth Circuit which would be binding on 5 this Court, we respectfully submit were wrongly decided. 6 Specifically, they wrongly hold that a per se ban 7 on the observation of criminal trials through television is a 8 valid time, place or manner regulation. 9 Your Honor, we believe that that reasoning which is 10 adopted by the Government in its papers cannot survive the 11 Supreme Court's decision in City of Ladue versus Gilleo, 12 which is reported at 512 U.S. 43, decided by the court in 13 1994 after all of the cases in the Hastings line. 14 Ladue holds that a per se ban on a particular 15 medium of communication, in that case residential signs, 16 violates the First Amendment and cannot be justified as a 17 valid time, place or manner restriction even when other means 18 of exercising First Amendment rights remain available and 19 even when the ban is not content based precisely because the 20 court was not persuaded in that case that adequate 21 substitutes existed for the important medium of speech that 22 the city in that case had closed off through its per se ban. 23 After Ladue, Your Honor, a per se ban on 24 observation through television cannot be justified as a valid 25 time, place or manner restriction as the Government argues Norman B. Linnell OCR-USDC/EDVA (703)549-4626 6 1 here and as the Eleventh Circuit held in Hastings. 2 THE COURT: What about the amicus position from 3 National Narrowcast Network that an adequate substitution for 4 video broadcasting would be simultaneous radio broadcasting? 5 MR. LEVINE: Your Honor, the right to observe is 6 the right to observe what goes on in the courtroom during the 7 proceeding. It is a right that extends beyond simply being 8 able to hear what goes on, but to see what goes on as well. 9 Including the demeanor of the witnesses as they testify, 10 unless there is a valid reason that this Court believes that 11 a particular witness should not -- face should not be shown. 12 But generally it is a right to observe. And observation 13 involves seeing as well as hearing. 14 THE COURT: So, your argument then in part is that 15 within the First Amendment there is an inherent right to 16 observe? 17 MR. LEVINE: That's what the court held in Richmond 18 Newspapers, Your Honor. It is a right to observe. It is not 19 a right to cram 60 or 70 people within the courtroom. It is 20 a right to observe the criminal justice process at work, 21 specifically criminal trials. 22 And as the court held in Ladue, it can't be 23 justified as a valid time, place or manner restriction to not 24 allow a specific means of communication, in this case 25 television, when there is no adequate substitute. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 7 1 In this case where the entire nation has a direct 2 interest in these proceedings, if not the entire world, it is 3 not an adequate substitute for the right to observe this 4 proceeding to have the rest of the country and the rest of 5 the world in fact rely on the few people that can fit inside 6 this courtroom. 7 To the extent that Rule 53 is a per se ban which it 8 appears on its face and has been interpreted by other courts, 9 it violates the City of Ladue stricture on no per se bans 10 constituting valid time, place or manner restrictions. 11 And it also violates the admonition of the Supreme 12 Court in the Globe Newspaper case that a per se rule denying 13 the right to observe any portion of a criminal trial is 14 unconstitutional because each case needs to be decided on its 15 own facts and this Court needs to exercise its discretion to 16 determine whether there are competing interests that require 17 any specific part of the proceedings in this case not to be 18 made available to the entire public. 19 THE COURT: Did Court TV or C-SPAN try to intervene 20 in the McVeigh prosecution? 21 MR. LEVINE: Not formally, Your Honor. There were 22 informal discussions, but there was no formal motion made in 23 the McVeigh case. 24 THE COURT: Has a similar motion been made in any 25 of the-- How about the embassy bombings case in New York? Norman B. Linnell OCR-USDC/EDVA (703)549-4626 8 1 MR. LEVINE: No. 2 THE COURT: So, this is the first one in the last 3 couple of years-- 4 MR. LEVINE: This is the first one since-- I think 5 the last case in the line that starts with Hastings was 6 decided in 1986. 7 THE COURT: We didn't see much case law out of the 8 '90s at all on this topic. 9 MR. LEVINE: That's correct, Your Honor. And the 10 big development in the '90s, if I may say so, was the advent 11 of Court TV in 1991. Since 1991 when Court TV began 12 televising, it has telecast over 750 trials in this country. 13 People are now comfortable with the notion, in a 14 way they weren't in the mid '80s when these other cases were 15 decided, that television is an unobtrusive medium both within 16 the courtroom and something that the people of this country 17 are familiar with as something that they see on television 18 all the time. 19 It does not have, as studies done after the cases 20 that were cited by the Government, including the Hastings 21 case, have confirmed, it does not have that kind of impact on 22 the audience that it might have had back in the early '60s 23 when the Estes case was decided, or even earlier in the '80s 24 when cases like the Hastings case were decided. 25 Television is now something that people believe is Norman B. Linnell OCR-USDC/EDVA (703)549-4626 9 1 a normal part of courtroom procedure. The fact that the 2 federal courts have not yet allowed television into criminal 3 proceedings is not -- is lost on most witnesses, is lost on 4 the public generally. In their world, cameras are something 5 that are in courtrooms in the '90s and now in the new 6 millennium. 7 So, we don't believe that the fear as hypothesized 8 by the Government with respect to the effect of this on the 9 administration of justice would be a negative one. We 10 believe for the reasons stated by the Supreme Court in the 11 Richmond Newspapers case and the cases that followed it, that 12 it will be a positive one. Especially in this case where 13 people are going to be watching to make their own judgments 14 about whether this accused received a fair trial. 15 THE COURT: Well, how adequate can the judgment of 16 the public be about whether a trial is fair or not if they 17 haven't sat through literally from gavel to gavel the entire 18 proceedings? 19 MR. LEVINE: Your Honor, we don't require that 20 somebody who comes to sit in the back of the courtroom in 21 this trial or in any trial agree to sit there for every 22 minute of the case. They come sometimes and they don't come 23 other times. 24 If anything, the availability of television and a 25 full archival, gavel-to-gavel coverage of the trial will Norman B. Linnell OCR-USDC/EDVA (703)549-4626 10 1 provide a greater measure of being able to insure or for the 2 public being able to insure in their own minds or make a 3 judgment about the fairness of the trial than sporadic press 4 reports. 5 THE COURT: But, you know, there are those who say 6 that just the contrary occurs. That is, given the infamous 7 sound bites and clips and snippets that occur by necessity on 8 most broadcasts, what the public is shown about a trial that 9 is being broadcast is more often than not the most dramatic 10 or the most outrageous events in what may be a two-month 11 trial with a lot of very routine, normal criminal activity, 12 criminal trial activity, which can also drastically skew the 13 public impression as to whether justice is or is not being 14 doled out. 15 MR. LEVINE: Your Honor, I would make just the 16 opposite argument. And I think that experience and the 17 studies, especially the most recent ones that we cite in our 18 papers bear out, which is that when you don't have a camera 19 in the courtroom, especially one that is doing gavel-to-gavel 20 coverage like Court TV and C-SPAN have requested to do in 21 this case, that's all you get is sound bites. 22 All you get are people coming out of the courthouse 23 and standing on the courthouse steps and talking about what 24 they perceived to be the most dramatic or interesting moment. 25 And you have, instead of the video of the actual trial Norman B. Linnell OCR-USDC/EDVA (703)549-4626 11 1 playing in background, you have a sketch artist's rendering 2 of what it looked like in the courtroom at the time that 3 happened. 4 What gavel-to-gavel television coverage does is 5 allow people who want to see the whole thing, who want to see 6 significant portions of it, the ability to do so. They don't 7 have that ability if you don't allow cameras and you are 8 relying solely on secondhand reports of people who are in the 9 courtroom. 10 And that is the fundamental point of our argument, 11 that the constitutional right is one to observe, not to 12 receive secondhand reports, no matter how well intentioned 13 that they are. 14 THE COURT: Well, you know, this courthouse and the 15 court reporters who will be handling this case have realtime 16 court reporting. Which means that practically simultaneous, 17 practically simultaneous transcripts will be available of the 18 trial proceedings. 19 Now, that, of course, is the official record. All 20 of the appellate courts in the country to date work off of 21 transcript record of the proceedings. So, they are obviously 22 accurate and reliable. 23 Why is that not more than sufficient to fully 24 advise the public at large as to what is going on in the 25 courtroom? Norman B. Linnell OCR-USDC/EDVA (703)549-4626 12 1 MR. LEVINE: A, Your Honor, because it is not 2 contemporaneous. It is delayed at least somewhat. 3 Second, because it is not a right to observe either 4 visually or by sound or both as somebody who would be sitting 5 in this courtroom would have the ability to do. 6 It, most importantly, I think, takes away from the 7 perception of fairness that somebody who is able to watch the 8 proceedings either here in the courtroom or on television 9 will be able to perceive as this case goes forward. 10 Relying on a cold transcript disseminated sometime 11 after the fact inevitably raises questions about whether the 12 transcript actually captures -- accurately captures what went 13 on in the courtroom. 14 THE COURT: So you are saying that appellate courts 15 for all these 200 years have been working off an inaccurate 16 record in resolving significant issues? I mean, that's all 17 the appellate courts have. 18 MR. LEVINE: Appellate courts are looking at them 19 for a different reason, Your Honor. They are looking at them 20 to make determinations of law with respect to issues raised 21 on appeal in adjudicated cases. They are not there for the 22 reason-- They are not looking at them for the reasons that 23 Chief Justice Berger enumerated in the Richmond Newspapers 24 case, the need for community catharsis in the face of an 25 important criminal trial like this case, the need to have the Norman B. Linnell OCR-USDC/EDVA (703)549-4626 13 1 public satisfied that the proceedings have been fair. 2 Those are First Amendment issues, those are First 3 Amendment interests the Supreme Court tells us in Richmond 4 Newspapers. And those can and are vindicated only by a right 5 to observe. That's what the Supreme Court held in those 6 cases. 7 THE COURT: All right. Let me hear from the United 8 States. 9 MR. LEVINE: Thank you, Your Honor. 10 THE COURT: Miss Collery, you are going to be the 11 spokesperson? 12 MS. COLLERY: Yes, Your Honor. Good morning. 13 THE COURT: Good morning. 14 MS. COLLERY: Your Honor, the Government opposes 15 the request by Court TV to televise the pretrial and trial 16 proceedings in this case. We oppose that request because it 17 is inconsistent with Federal Rule of Criminal Procedure 53 18 and Local Rule 83.3. 19 Moreover, the suggestion of Court TV and the amicus 20 filers that those rules are unconstitutional is incorrect. 21 The Supreme Court has specifically held in the Estes decision 22 that there is no First Amendment right to broadcast or 23 televise criminal proceedings. 24 Court TV contends that that discussion in Estes is 25 dicta, but that is incorrect. At issue in Estes is whether Norman B. Linnell OCR-USDC/EDVA (703)549-4626 14 1 the defendant had a due process right not to have his 2 proceeding televised. 3 In order to decide whether the defendant had a due 4 process right not to have the proceeding televised, the court 5 necessarily needed to consider whether the press had a First 6 Amendment right to televise it. 7 It would obviously be an impossible state of 8 affairs if the court had held in one case that the defendant 9 had a due process right not to have it televised and then had 10 subsequently decided in another case that the press had a 11 First Amendment right to televise. 12 So, it had to be decided in Estes, and a majority 13 of the Supreme Court considered it and decided against the 14 media's claims. 15 THE COURT: Of course, now the intervenor has 16 actually couched the argument slightly differently as I have 17 listened to it. In part arguing that there is a right to 18 observe inherent in the First Amendment for the public at 19 large, and that that right to observe cannot be exercised if 20 matters are not broadcast. 21 That's different from saying, we have a right to 22 broadcast. They are saying, in part, there is a right of the 23 public to observe. 24 MS. COLLERY: The public's right to observe stems 25 from the Richmond Newspapers case. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 15 1 THE COURT: Right. 2 MS. COLLERY: And that decision considered whether 3 the Government could summarily close court proceedings, 4 proceedings which had historically been open to the public, 5 not just for decades, but for centuries. In fact, in the 6 opinion itself they trace the historical practice of open 7 court proceedings in England before the Norman conquests. 8 And so that in Richmond Newspapers what the court 9 did was to look at that long-standing historical practice of 10 open court proceedings and to find that that historical 11 practice, although not enumerated in the First Amendment, was 12 nonetheless implicit in the First Amendment. 13 The situation here is entirely different, Your 14 Honor, because there is no long-standing, accepted, 15 uncontradicted tradition of televising court proceedings in 16 the United States. 17 In Richmond Newspapers and in many other cases the 18 court has recognized that the right of access is simply a 19 right of some members of the public and of the media to 20 observe the proceedings. The court has rejected the argument 21 that that entitles everyone to observe. 22 In fact, in Richmond Newspapers in a footnote they 23 noted that seating in courtrooms is limited. And that the 24 courts are entitled to allocate those seats in a fair manner 25 because not every member of the public can possibly attend. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 16 1 There is not a long-standing historical tradition 2 of cameras in the courtrooms or any other kind of broadcast, 3 including radio broadcasts. 4 Nor is there a historical tradition of maximizing 5 access to the courts. While it is historical for criminal 6 proceedings to be open to the public, it has never been 7 thought necessary to hold them in amphitheaters in cases of 8 great public importance so that the public -- the number of 9 people from the public can be maximized. That is just not 10 part of our long-standing tradition. 11 And so, the right that was recognized in Richmond 12 Newspapers is fundamentally tied to the history of our 13 criminal proceedings. 14 THE COURT: And I understand that. And, of course, 15 the law is by its nature a somewhat conservative and 16 historically-oriented discipline. 17 But Court TV does also point out, and it is a 18 reality of the modern world, that technology does change 19 things. And part of their argument-- And as I said, the 20 paucity of cases out of the 1990s would suggest that maybe we 21 are in a hiatus at this point. That the technology has 22 changed. And with the changing technology, some of the 23 original legitimate concerns about the intrusiveness of the 24 media in the courtroom have either totally been eliminated or 25 significantly decreased. The size of the cameras being Norman B. Linnell OCR-USDC/EDVA (703)549-4626 17 1 almost invisible. 2 I mean, we have got two cameras in here today 3 because, as you may or may not know, there is a live 4 audio-visual feed into the other courtroom should we not have 5 had enough seating in this room in our effort to increase the 6 number of members of the public who can watch these 7 proceedings. We have been able to double the capacity of 8 seats in this courthouse. 9 And I don't think-- I don't know, maybe you have 10 noticed this one, but I am sure the other one over the exit 11 sign most people haven't. And I am told that this is not 12 even the full state of the technology at this point. 13 So, I mean, this may be a somewhat dangerous 14 argument to simply look at the history of things. As they 15 point out, things are changing. And certainly in the state 16 judiciary, televised proceedings are no longer unusual. 17 MR. SPENCER: Technology changes, Your Honor, but 18 technology has not eliminated the legitimate concerns that 19 have been expressed about televising court proceedings. 20 THE COURT: All right. 21 MS. COLLERY: I think it was Chief Justice Warren 22 in the Estes decision who pointed out the evils of televising 23 do not stem from the sounds or the microphones. They stem 24 from the witnesses' awareness of the fact that he or she is 25 being televised. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 18 1 That awareness has a possibility of affecting the 2 witnesses' testimony, has a possibility of affecting the 3 jurors, has a possibility of affecting everyone in the 4 courtroom. And technological changes that make cameras 5 unobtrusive do not respond to that very legitimate concern. 6 I would also like to comment on the argument that 7 Court TV advances essentially that the use of cameras in 8 state courtrooms has been overwhelmingly successful and that 9 it has established a sort of background against -- for 10 recognition of this constitutional right. 11 There was attached to one of the amicus briefs 12 filed yesterday a state survey. And what I thought that 13 state survey revealed is that there is a wide variety of 14 practices in state courts, but that very few state courts 15 recognize the broad right of access that the media is arguing 16 for in this case. 17 There are numerous restrictions in state courts on 18 televising. Some states require consent of the parties. 19 Some states allow witnesses to opt out. Some states restrict 20 televising in criminal proceedings. 21 And, therefore, the practice in state court does 22 not support the recognition of the broad presumption of a 23 right of the media to televise criminal proceedings. That is 24 just not where the law is now. 25 So, not only do technological changes not eliminate Norman B. Linnell OCR-USDC/EDVA (703)549-4626 19 1 the legitimate concerns, but the evolution of the law is 2 nowhere near the point of establishing throughout the nation 3 a sort of background understanding that televising courtroom 4 proceedings is appropriate and doesn't risk harming the 5 administration of justice. 6 THE COURT: All right. Is there anything else that 7 you want to address that you feel you have not adequately 8 covered in your brief? 9 MS. COLLERY: There was a brief filed by the 10 intervenor National Narrowcast Network, and we filed a 11 response to that. 12 THE COURT: Right. 13 MS. COLLERY: As long as the Court has received our 14 response, then I don't need to address that, has an 15 opportunity to read it. There was an argument there-- 16 THE COURT: Most of your argument-- That's the 17 radio intervenor. 18 MS. COLLERY: That's correct. 19 THE COURT: Who has argued as an alternative to 20 video broadcasting, because some of your opposition was based 21 upon security concerns, the fact-- And this is certainly a 22 technological fact that does I think -- and at least were 23 taken into consideration by the courts. With video 24 broadcasting, and this is totally different from a person who 25 sits in the courtroom and watches the trial or the sketch Norman B. Linnell OCR-USDC/EDVA (703)549-4626 20 1 artist who sketches the people, with video broadcasting there 2 would be a permanent photographic capturing of the images of 3 anybody who is in that courtroom. 4 And given the nature of the Internet these days, 5 that means that the photographs of the Marshals, the 6 prosecutors, defense attorneys, the judge, and witnesses if 7 those witnesses are being broadcast, are forever out there in 8 the public domain. 9 In serious criminal cases with serious allegations, 10 that does pose a potential security risk that certainly Judge 11 Becker has addressed and you-all have mentioned some of his 12 comments in your papers, but it is legitimate. 13 And certainly if witnesses felt that there was any 14 possibility that their photographs would be out there, I 15 think that could be a very chilling problem. 16 The radio folks, of course, come back and say, 17 well, you know, we are a compromise. We permit live coverage 18 of the proceedings, but because no pictures are transmitted, 19 the worst that happens is that people's voices may be 20 captured and may be communicated around the world, but it is 21 relatively difficult to identify someone on the street by 22 their voice. Whereas it is very easy to identify them on the 23 street by their picture. 24 And so, National Narrowcast's position, as I 25 understand it, is that they offer the ideal compromise in Norman B. Linnell OCR-USDC/EDVA (703)549-4626 21 1 that they increase public access. If there is this general 2 right to observe, it is a sound observation rather than a 3 visual observation, and that it avoids many of the problems 4 that you point to in your papers. 5 Do you want to address that? 6 MS. COLLERY: Yes, Your Honor. There may be policy 7 reasons why a broadcast of this proceeding, an audio 8 broadcast of this proceedings over the radio or over the 9 Internet would be preferable to a television broadcast of the 10 proceeding, but the relevant rules prohibit both. 11 THE COURT: But what if the rules didn't exist? I 12 am just asking you, if the rules were not there, what would 13 the basis be for your opposition to an audio broadcast of the 14 trial? 15 MS. COLLERY: Well, I am not sure I can say on 16 behalf of the United States what position we would take in 17 this case if the rules didn't exist or if the rules permitted 18 a radio broadcast of this case. 19 I still think that the dangers posed by televised 20 broadcasts exist with respect to radio broadcasts. Some of 21 them may be lessened somewhat. But I think the question of 22 nervousness of witnesses, of self-consciousness of court 23 participants, of a fear of witnesses, a fear of witnesses who 24 are unwilling to come to the United States and testify, many 25 of the concerns remain. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 22 1 And I can't say, Your Honor, that the United States 2 would necessarily agree to a radio broadcast if the rules 3 that prohibited it didn't exist. I think it would, you know, 4 it would require careful consideration. 5 THE COURT: All right. Thank you. 6 MS. COLLERY: Thank you. 7 THE COURT: Mr. Dunham. 8 MR. DUNHAM: Mr. MacMahon will address the Court. 9 THE COURT: All right. Mr. MacMahon. 10 MR. MACMAHON: Good morning, Your Honor. 11 THE COURT: Good morning. 12 MR. MACMAHON: Your Honor, I know how carefully you 13 read the submissions that we file with the Court, so I will 14 be very brief. 15 Mr. Moussaoui doesn't object to Court TV's motion 16 to have the trial televised subject to the conditions that 17 are set forth in that memorandum. He believes it would 18 assist for an added layer of protection to give him the 19 belief of a fair trial in this court and for other people to 20 see and watch. 21 And unless the Court has any questions for me, I 22 will just sit on down, Your Honor. 23 THE COURT: All right. That's fine. 24 MR. MACMAHON: Thank you. 25 THE COURT: Then I will give the intervenor about Norman B. Linnell OCR-USDC/EDVA (703)549-4626 23 1 four or five minutes, if they want, to rebut any of the 2 discussion we have had today. 3 MR. LEVINE: Your Honor, I just wanted to briefly 4 address one point that the Government made, which is this 5 notion that the right to observe does not include and 6 historically has not included the right to observe by large 7 numbers of people. 8 If the Court reads Chief Justice Berger's decision 9 in the second Press Enterprise case, I believe, you will see 10 a discussion of the treason trial of Aaron Burr which was 11 held in this jurisdiction, and in which Chief Justice 12 Marshall presided as trial judge. 13 In that case at the preliminary hearing, not even 14 the trial, there were so many people who wanted to observe in 15 the courtroom that Chief Justice Marshall adjourned the 16 proceedings and moved them over to the House of Burgesses 17 where there were more seats so that anybody in the community 18 who wanted to come and see this momentous event in the 19 history of our nation was able to do that. 20 Those cases, the Aaron Burr treason trial, other 21 cases in the early days of this republic, raise many of the 22 same issues that this case raises. In those days there was 23 no television, and there was no question that anybody in the 24 public who wanted to observe that trial or those trials had a 25 right to do so. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 24 1 So, I think historical tradition as well as the 2 advances of technology that allow television to be a 3 substitute, that allows the right to observe to be vindicated 4 in the same way that Chief Justice Marshal did in the Burr 5 case, apply equally. And that there is a historical 6 tradition of the public's right to observe in numbers 7 commensurate with the interest in the case. 8 That's the only additional item I have. 9 THE COURT: How do you get around the security 10 concerns? Because, you know, even if the Court found that 11 there was a constitutional right for you to broadcast, even 12 if we found that the rules as they exist were 13 unconstitutional, the Court would still have to look at the 14 specifics of this case. And the Government has raised some 15 legitimate concerns about security. 16 And the one issue that you never addressed in your 17 papers was this issue about the permanency of the visual 18 images of the trial participants. There is no other form of 19 media that would do that. 20 And certainly individuals, even if all 400 million 21 Americans or how many we are now came and sat in the 22 courtroom and watched, they would leave the courtroom and, 23 yes, they would have seen the people, but memories fade over 24 time. And certainly those images would not be publishable on 25 the Internet and around the world, et cetera. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 25 1 In a case like this where the allegations, of 2 course, involve allegations of international terrorism, the 3 Government has voiced, among other arguments, concerns about, 4 legitimate concerns about the security of the people who 5 participate in the trial. 6 I mean, what if we had a trial and everybody's face 7 were blocked out if we were televising it because of concerns 8 about we don't want these images out there? 9 Address for me the security issue that video 10 broadcasting raises in the context of complex criminal 11 trials. 12 MR. LEVINE: Several points, Your Honor. First of 13 all, we take those concerns very seriously. In our papers we 14 attempted to point out to the Court that you as the trial 15 judge have ample discretion to place conditions or 16 restrictions on the telecasting of this trial commensurate 17 with legitimate competing interests of a compelling nature 18 that the Government or others or the defendant may bring 19 forward. And we have to take each of those on a case-by-case 20 basis based on the facts of the case. 21 In this case, as in all others that Court TV has 22 ever televised, if a witness indicates that it wishes to have 23 its face obscured and not shown on television, we will honor 24 that. And the Court, if the Court ordered that, we would 25 comply with that. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 26 1 There may be other restrictions necessitated 2 because of the nature of this case and the terrorism-related 3 issues that it raises. Court TV recognizes that Your Honor 4 has broad discretion. And that Court TV is unlikely or 5 C-SPAN is unlikely to be in a position to second-guess 6 representations made by the Government about security 7 threats. And the Court has ample discretion to deal with 8 those. 9 It would seem to me, however, that there are 10 numbers of witnesses, large portions of the proceeding for 11 which television coverage would serve a valuable purpose that 12 do not involve terrorism risks: Opening and closing 13 statements, witnesses who do not wish or do not believe that 14 their faces need to be obscured, and there are certainly 15 other examples. 16 But large portions of this trial, it seems to me, 17 and likely the vast majority of this trial could be done in a 18 way that television could play a part in it. 19 There have been cases, you have alluded to the 20 cases in New York involving other terrorist acts, in which 21 there has been some case law discussion about the court's 22 ability to close the courtroom during testimony of some 23 witnesses based on security concerns. And if something rose 24 to the nature of requiring that, it is a compelling interest 25 to close the courtroom that is required, but I am not saying Norman B. Linnell OCR-USDC/EDVA (703)549-4626 27 1 that there would never be a circumstance in which that would 2 be appropriate. 3 The point I think is that you retain ample 4 discretion, like you do in any case, to make sure that 5 security issues are dealt with in an appropriate way. And 6 Court TV is not at all suggesting that you are deprived or 7 limited in that discretion in any way. 8 THE COURT: All right. 9 I want to thank you for what is obviously a very 10 interesting argument, has been an interesting argument. 11 These are significant issues. 12 As you-all recognize, you are asking the Court to 13 declare unconstitutional a Federal Rule of Criminal Procedure 14 that has been enacted by the Judicial Conference of the 15 United States, approved by the Supreme Court and the United 16 States Congress. One does not take that job lightly. 17 So, I am going to think about this. 18 I want to tell you, so that our Clerk's Office is 19 not inundated with phone calls, there will be no decision 20 issuing before Tuesday of next week at the earliest. So, 21 don't bother calling, it won't be there. 22 And I am not even guaranteeing you will get it on 23 Tuesday, but I do want to get the decision out quickly 24 because we are keeping this case on as fast a track as we 25 can. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 28 1 All right. The defendant is remanded at this time. 2 We will recess court. 3 ------------------------------------------------ HEARING CONCLUDED 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I certify that the foregoing is a true and 21 accurate transcription of my stenographic notes. 22 23 _________________________________ Norman B. Linnell, CP, CM, CE 24 25 Norman B. Linnell OCR-USDC/EDVA (703)549-4626