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

• Author: Boeving, James Nicholas

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.

Nevertheless, a defendant's right to be present during the course of his trial remains fundamental. Given the important values that the right to be present serves for the individual defendant and the larger scheme of constitutional rights, any limitations on that right must be carefully considered. As a general matter, the defendant's presence helps ensure that the proceedings are, at a minimum, perceived as fair because the defendant is given the opportunity to confront any witnesses. Furthermore, the defendant is placed in the best position to test the veracity of the evidence proffered by the prosecution, increasing the likelihood that the government will take proper care to fully prove its case-in-chief before a conviction is rendered. (16)

While the right to be present is a touchstone of the U.S. criminal justice system, it is not without limits. Certain portions of criminal proceedings do not necessitate a defendant's presence to ensure a fair trial; in some circumstances defense counsel's presence alone may be sufficient. (17) Additionally, in limited circumstances, public policy interests have been invoked to justify restricting the defendant's right to be present. (18) The risk of undermining the fairness of the proceedings and the truth-seeking function of our justice system, however, increases proportionally with the amount of time that a defendant is excluded from the proceedings against him, particularly at trial. Cognizant of the proportional risk, the Supreme Court acts cautiously in permitting the exclusion of a defendant from portions of his trial, (19) and rightfully so.

In terrorism trials, the issue of presence manifests itself in the question of whether, and in what circumstances, the government may exclude the defendant from portions of the legal proceedings in order to prevent the disclosure of classified information and safeguard national security. Determining the flexibility of this right could greatly influence future legal decisions and, perhaps more importantly, shape future legislation.

Hamdan v. Rumsfeld (20) is the most significant ruling on this subject since the beginning of the war on terror. (21) This Article uses the various opinions rendered in the Hamdan litigation as the background for a discussion of the right to be present in military commissions. It then explores the extent to which Congress could, through legislative action, limit the right to be present in federal court during a terrorism trial.

This Article is divided into three Parts. Part I discusses the right to be present before military commissions. Part I.A examines the right to be present under the legislative framework of the Uniform Code of Military Justice (UCMJ) prior to Congress's recent alteration through the passage of the Military Commissions Act of 2006, and to a lesser extent under the Geneva Conventions. It concludes that neither guarantees an individual accused of terrorism the right to be present before a military commission. (22) Part I.B then considers the Military Commissions Act of 2006, which was Congress's response to the Hamdan decision, as it relates to the right to be present, and it considers whether the route chosen by Congress was appropriate and adequate to safeguard national security information.

Part II explores whether procedures like those promulgated under Military Order No. 1, allowing for the exclusion of the defendant from portions of his trial, would be permissible in federal terrorism trials, and suggests that any such procedures could be easily incorporated into the existing statutory framework of the Classified Information Procedures Act (CIPA). Part II.A frames the current understanding of the right to be present in federal court and concludes that although objections would certainly be raised, the federal courts could utilize procedures akin to those permitted by the President's initial order establishing the Military Commissions (23) and outlined in subsequent U.S. regulations. (24) Under such a scenario, the constitutionality of any limitations placed on a defendant's right to be present in a terrorism prosecution would be reviewed on a case-by-case basis on appeal following conviction. Part II.B pursues the more limited...