Banned from the Courtroom   

Despite worldwide interest, a federal judge rules against electronic coverage of the Zacarias Moussaoui case.

On January 17, Attorney General John D. Ashcroft made a very good case for why federal District Judge Leonie M. Brinkema should allow cameras in the upcoming trial of Zacarias Moussaoui, the French national who is to be tried in October on charges stemming from the September attacks on the World Trade Center and Pentagon. Ashcroft released videotapes and still photographs of five suspected al Qaeda members--including Ramzi Binalshibh, an unindicted co-conspirator in the case against Moussaoui. The images of the men were posted on the FBI's Web site, where, as Ashcroft put it, they would provide "another opportunity for the public around the world to join the campaign against terrorism" by helping law enforcement to locate them.

During the press conference, a reporter asked Ashcroft whether posting the images on the Internet would unnecessarily frighten people or prompt them to accuse innocent individuals who might resemble the suspected terrorists. Ashcroft said by releasing the photographs and the video rather than "generalized identification," the risk of mistakes would be far less. "The American people are accustomed to being a part of this investigation...and they realize they can be a constructive part," he said.

It's unusual for Ashcroft to embrace freedom of information as a means to encourage citizen participation, but more power to him for doing so. It shows a confidence in the public that is as commendable as it is justified. What a shame that Brinkema didn't see it that way. Instead, only one day after Ashcroft's press conference, she ruled that cameras and other recording devices would be banned from Moussaoui's trial in Alexandria, Virginia.

In many ways, Brinkema's decision was predictable. After all, the media companies who argued the case for electronic coverage of the trial faced a formidable obstacle in the form of Federal Rule of Criminal Procedure 53, which states that photographs or radio broadcasts of federal criminal trials "shall not be permitted."

The language of the rule is both absolute and mandatory, meaning that, as a trial judge, Brinkema had no discretion to override it--unless, of course, she was willing to take the audacious course urged upon her by the media intervenors: to declare the rule unconstitutional.

Brinkema conceded that Supreme Court opinions from the 1980s recognize that the public, and by implication the press, have a First Amendment right of access to criminal trials. But that doesn't mean that every individual who might like to attend the trial must be allowed to do so in person, or through "the surrogate of the media." The access right is satisfied, Brinkema found, as long as a few members of the media and the public are able to attend. Besides, she noted, an audio-visual feed to an adjacent room will increase the numbers who can observe the trial, and daily electronic transcripts, available within three hours after each day's proceedings conclude, will help facilitate accurate reporting.

But even if Rule 53 were abolished--a policy question best left to Congress and the U.S. Judicial Conference, Brinkema observed--cameras and microphones would still have no place in the Moussaoui trial. Any educational benefits that might flow from permitting broadcast coverage are outweighed by the need to conduct a "fair and orderly" trial, which, she ruled, would be impossible if it were open to electronic coverage. Although modern equipment is virtually undetectable, mere awareness of its presence could "intimidate witnesses and jurors, as well as threaten the security of the courtroom" and of trial personnel, she wrote. Brinkema also worried that broadcasts of the proceedings would prompt participants, including Moussaoui, to engage in "showmanship" and risk tainting future jury pools in the event of a mistrial.

Once the face of a witness or juror is televised, it will be available for digital dissemination throughout the world, Brinkema said. She dismissed pledges by the media to obscure the faces as impractical and problematic. Even an innocent mistake, she wrote, could expose witnesses to serious safety risks not worth taking in the name of promoting access.

The Moussaoui case represents another opportunity lost. It seemed ideally suited to dispose of the prohibition on cameras in the courts once and for all. The overwhelming public interest in the trial cries out for the greatest access possible. If we are confident that justice will be done in that courtroom in Alexandria, we should let the world see it.

But the anachronistic arguments that have prevented electronic coverage of federal criminal trials for years proved too much for a federal trial judge to take a chance on this one.

So all the world won't be watching, because it won't be allowed to do so.