UNITED STATES COURT OF MILITARY COMMISSION REVIEW

BEFORE THE COURT

POLLARD , PRESIDING JUDGE;

HUTCHISON AND FULTON , JUDGES

ALI ABDUL-AZIZ ALI ,

A /K/A AMMAR AL BALUCHI ,

PETITIONER

V .

UNITED STATES ,

RESPONDENT

CMCR 19-002

June 28, 2019

Colonel Keith A. Parrella , U.S. Marine Corps, military commission judge.

On brief for petit ioner were Alka Pradhan; Lieutenant Colonel Sterling R.

Thomas , U.S. Air Force; Benjamin R. Farley; Captain Mark E. Andreu, U.S. Air

Force; and James G. Connell III .

On brief for respondent were Brigadier General Mark S. Martins , U.S. Army;

Michael J. O’Sullivan ; and Haridimos V. Thravalos.

On brief for amici curiae of twelve press organizations were David A. Schulz

and Maxwell S. Mishkin.

On brief for amicus curiae of the American Civil Liberties Union were Brett

Max Kaufman and Hina Shamsi.

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PUBLISHED OPINION OF THE COURT

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Opinion for the Court filed by POLLARD , Presiding Judge, with whom

HUTCHISON and FULTON , Judges, join.

Opinion for the Court

POLLARD , Presiding Judge:

2

Petitioner Ali Abdul-Aziz Ali, also known as Ammar Al Baluchi, is one of

five defendants in a case pending before a military commission held at Naval

Station Guantanamo Bay (NSGB), Cuba. 1 Each defendant, or accused, is

charged with crimes, including capital crimes, for his alleged involvement in the

September 11, 2001, attack on the United States. On March 14, 2019, petitioner

asked this Court to issue a writ of mandamus directing the military judge

presiding over his commission case to hold a public hearing in a pre-trial matter

involving the unclassified testimony of a witness known as the “Interpreter.”

I . Jurisdiction

We have mandamus jurisdiction to review this case pursuant to the All

Writs Act, 28 U.S.C. § 1651(a), because review in this instance is in aid of our

appellate jurisdiction under 10 U.S.C. § 950f(c). See In re Al-Nashiri , 791

F.3d 71, 75 (D.C. Cir. 2015).

II. Background

A. Statement of the case

The witness previously was the interpreter for defendant Ramzi Bin al

Shibh. See AE 350RRR at 1. The witness also worked for other defense teams,

including petitioner’s team. See id. at 4, 10. As such, the Interpreter was privy

to privileged and work product information that belongs to the defendants and

their attorneys. The purpose of the hearing at issue is to allow the defense to

explore whether the Interpreter was a government “asset” placed in the defense

community and whether the Interpreter compromised privileged and work

product information belonging to petit ioner, the other defendants and/or their

defense teams. See id. at 9-11.

The government unequivocally denies that it had anything to do with the

Interpreter working for the defense or that it was involved in any compromise of

the defense’s protected information. AE 350RRR at 1, 4-5; Resp’t Br. 16 (Mar.

21, 2019). It also opposes petit ioner’s request that the Interpreter’s unclassified

testimony be taken in an open hearing. It argues a closed session is necessary to

prevent the inadvertent disclosure of classified information and to protect the

Interpreter and his or her identity, which is classified. See Resp’t Br. 5, 13, 16-

17, 19. The government also contends that there are no conditions that would

allow public testimony without jeopardizing the classified information at issue

that i t seeks to protect.

Petitioner agrees that a closed session is appropriate to the extent that the

Interpreter’s testimony would elicit classified information. Pet’r Br. 8-9 (Mar.

1 The other four defendants in the pending case are Khal id Shaikh Mohammad, Walid

Muhammad Sal ih Mubarek Bin ‘Attash, Ramzi Bin al Shibh, and Mustafa Ahmed Adam al

Hawsawi. Bin a l Shibh is spel led as Binalshibh on the charge sheet .

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14, 2019). He argues, however, that “the entirety of the Interpreter’s expected

testimony” will not involve classified information, id. at 8-9, 13, and that taking

the unclassified testimony in a closed hearing violates his right to a public trial ,

id. at 2, 8-11. He further argues that there are steps short of barring all public

testimony that would adequately protect the Interpreter’s safety and his or her

classified identity. Id. at 10.

The military judge ruled that the government had satisfied its burden to

justify closure, as set forth in 10 U.S.C. § 949d(c) and the Manual for Military

Commissions (M.M.C.), Rule for Military Commissions (R.M.C.) 806(b)(2).

See AE 616J at 2-3. He entered a decision and order, AE 616J, (Closure Order)

directing that the Interpreter’s testimony, both classified and unclassified, be

taken in a closed session, followed by the release within ten days of the hearing

of a transcript that has only unclassified testimony, as determined by the

government. Id. at 4.

Petitioner’s mandamus petition challenges the Closure Order as violating

his Sixth Amendment right to a public trial . Pet’r Br. 2, 5-6, 8-11. Twelve

press organizations and the American Civil Liberties Union filed amici briefs

arguing that the Closure Order violates their qualified First Amendment right to

contemporaneous access to the Interpreter’s unclassified testimony. Press Br. 7-

8 (Mar. 21, 2019); ACLU Br. 4-6 (Mar. 21, 2019); see ABC, Inc. v. Stewart , 360

F.3d 90, 99 (2d Cir. 2004) (“The ability to see and to hear a proceeding as it

unfolds is a vital component of the First Amendment right of access . . . .”).

The amici, however, did not seek to intervene below or in this Court in an

attempt to vindicate their own rights. 2

B. Legal standards

We may issue a writ of mandamus only if three criteria are satisfied:

Petitioner “must have no other adequate means to attain the relief he desires . . .

his right to issuance of the writ is clear and indisputable . . . [and] the writ is

appropriate under the circumstances.” Al-Nashiri , 791 F.3d at 78 (quoting

Cheney v. U.S. District Court for D.C. , 542 U.S. 367, 380-81 (2004)).

Further, in applicable circumstances, “a clear abuse of discretion will

justify the invocation of this extraordinary remedy.” Cheney, 542 U.S. at 380

(citations omitted); Schlagenhauf v. Holder , 379 U.S. 104, 110 (1964) (same);

see also In re Thornburgh , 869 F.2d 1503, 1506-07 (D.C. Cir. 1989) (stating a

2 We have not addressed what r ights , i f any, the press and publ ic have to in tervene in

proceedings before a commission or th is Cour t to protect their qual if ied const i tu t ional r ight

to publ ic access to proceedings before a commission. See Press-Enter. Co. v . Superior

Court , 478 U.S. 1 , 13 (1986) (Press-Enter . I I) . Compare ABC, Inc. v . Powell , 47 M.J. 363,

364 (C.A.A.F. 1997) (concluding press and publ ic have a r ight of access to Art ic le 32,

UCMJ, invest igat ion) , with Ctr. for Const . Rts . v . United States , 72 M.J. 126, 127 (C.A.A.F.

2013) (decl in ing to decide pet i t ion for a wri t of mandamus to open Rule for Cour ts-Mart ia l

802 conferences based on Firs t Amendment r ight of publ ic access) .

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“writ may issue only to correct those exceptional circumstances where there has

been a clear abuse of discretion . . .” (internal quotation marks and citation

omitted)). Our Superior Court tells us that “[a]n abuse of discretion occurs

when the district court’s decision rests upon a clearly erroneous finding of fact,

an errant conclusion of law or an improper application of law to fact.”

Lockheed Martin Corp. v. United States , 833 F.3d 225, 234-35 (D.C. Cir. 2016)

(citation omitted); see also Pigford v. Johanns , 416 F.3d 12, 23 (D.C. Cir. 2005)

(“While our review is deferential, an abuse of discretion occurs when the

district court relies on clearly erroneous findings of fact, fails to consider a

relevant factor, or applies the wrong legal standard.”).

Whether we may issue a writ of mandamus in this case first requires us to

(a) examine the merits of petitioner’s public trial claim and (b) determine

whether other adequate means are available to petitioner to attain the relief he

seeks. If petitioner’s claim crosses both threshold issues, we then must address

whether issuing the writ is appropriate.

In summary, our analysis begins by determining what right, if any, an

accused in a military commission case has to a public trial. If he has such a

right, we must decide whether it extends to the pre-trial hearing at issue and

requires the taking of the Interpreter’s unclassified testimony in a public

session. Any right that the accused may have is a qualified right. It must give

way if the government demonstrates that there is a greater good served by

closure. If a closure order is entered, it must be both narrow and supported by

findings of fact justifying it, sufficient for a reviewing court to assess the

correctness of the order. See Waller v. Georgia , 467 U.S. 39, 45, 48 (1984)

(citing Press-Enter. Co. v. Superior Court , 464 U.S. 501, 510 (1984) (Press-

Enter. I)).

C. Conclusion summary

With respect to petitioner’s rights, we hold that he has a qualified right to

a public trial pursuant to 10 U.S.C. § 949d and the Manual for Military

Commissions (2019 ed.), R.M.C. § 806, and that this right extends to the

hearing at issue. We recognize that the government has put forth two

compelling reasons that might require the taking of some or all unclassified

testimony in a closed session and later releasing a transcript of the Interpreter’s

testimony to the extent the government determines it is not classified. Those

reasons are the protection of classified information, which includes the

Interpreter’s identity, and the Interpreter’s safety, see AE 616J at 1, Resp’t Br.

19. However, the commission’s current findings are insufficient to demonstrate

the need for the Closure Order as entered. From the order and commission

record, we also cannot determine whether the Closure Order is as narrow as the

law demands and whether there are no alternatives that would lessen a need to

take all testimony in a closed session. See Waller , 467 U.S. at 45, 48; Press-

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Enter. I , 464 U.S. at 510; United States v. Criden , 675 F.2d 550, 560 (3d Cir.

1982).

We further hold that petit ioner has no other adequate means to obtain the

relief that he seeks. As we will explain further, maintaining the public’s

confidence in the integrity of the prosecution is one of the most vital values that

underlies the right to a public criminal trial. See Press-Enter. I , 464 U.S. at 508

(citing Richmond Newspapers v. Virginia , 448 U.S. 555, 569-71 (1980)); Criden ,

675 F.2d at 556. Closed testimony that should be taken in an open session

undermines public confidence. A closure order that permits testimony in a

closed hearing without adequate justification similarly impairs public

confidence. Assuming that there is a post-trial appeal, i t will be years before

petitioner has an opportunity to seek vindication of the right he now asserts,

that is, the right to take in an open session unclassified testimony that seeks to

determine if there was government misconduct. During the resulting inevitable

years’ long delay before any such appeal is decided, public confidence in the

fairness of the prosecution will be tried and likely erode. It is foreseeable that

any potential appeal will result in a lengthy post-trial process, depriving

petitioner of “other adequate means to attain the relief” that he pursues in this

Court. Al-Nashiri , 791 F.3d at 78 (quoting Cheney , 542 U.S. at 380).

In the circumstances of the petit ion before us, we find it appropriate to

issue a writ of mandamus vacating the military commission’s Closure Order.

This will provide the commission with an opportunity to review further the

government’s request that the Interpreter testify only in a closed session and to

enter a closure order in conformity with the standard set forth in this opinion.

While we dissolve our stay of taking the Interpreter’s testimony, once the

commission addresses the entry of a new closure order, any party should have an

opportunity to seek a new stay in this Court before any testimony is taken.

III. Statement of Facts

On February 9, 2015, during commission proceedings, defendant Bin al

Shibh pointed to an interpreter employed by his defense and identified him or

her by a name. AE 350RRR at 1. He said that he recognized the Interpreter as

someone whom the Central Intelligence Agency (CIA) had used as an interpreter

at a “black site” where he, Bin al Shibh, had been held before he was transferred

to NSGB. Pet’r Br. 2 (citing App. 137 (Tr. 2/9/15 at 8,248)). When asked about

this, the Interpreter denied working for the CIA. AE 350RRR at 1. The

government, as was its duty, promptly disclosed to the commission and defense

that the Interpreter had in fact previously worked for the CIA. Id.

The lawyers for the accuseds, naturally, wanted to know more about the

Interpreter. Their interest included how someone who had worked for the CIA

came to be an interpreter for a defendant in the 9/11 case. See id. at 2, 4; see

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also Resp’t Br. 3; Pet’r Br. 3. The prosecution said that it knew nothing about

how this had come about and stated that it had not “planted” the Interpreter in

the defense camp as a government “asset”. AE 350RRR at 1, 4; Resp’t Br. 16.

For the next four years, the parties fought over whether, and to what extent, the

defense would be able to obtain information from the government about the

Interpreter and whether they would be able to take the Interpreter’s testimony.

See AE350 series. Over t ime, the government provided the defense with certain

information about the Interpreter. AE 350RRR at 5-6.

Ultimately, on December 13, 2018, the military judge ruled that the

defense could examine the Interpreter concerning three topics: “(1) the

circumstances leading up to [the Interpreter’s] employment with the Defense,

(2) the extent to which [the Interpreter] had access to privileged information

during [the Interpreter’s] tenure as a Defense interpreter, and (3) whether or not

[the Interpreter] shared any information gained during [the Interpreter’s] tenure

as a Defense interpreter with any other persons or organizations.” AE 350RRR

at 9, see id. at 10-11. The military judge ordered the Interpreter to testify from

a government facility in the United States and for that testimony to be

transmitted to the commission’s courtroom at NSGB and to a public gallery, id.

at 10, both of which are controlled by the Department of Defense, see M.M.C.,

pmbl. ¶ 1(d); R.M.C. 806(b)(1).

The parties next fought over the issue now before our Court, that is,

whether the Interpreter will testify in an open or closed session with respect to

his or her unclassified testimony. Boiled down to its essence, the government

argues that the Interpreter’s testimony will be a mix of unclassified and

classified information, see Resp’t Br. 2, 18, and that the Interpreter is not

sufficiently sophisticated to discern between the two at all times, see AE 616J at

3. This would lead to spillage, see Resp’t Br. 2, 18; AE 616J at 3, which is the

disclosure in an unclassified setting of classified information. The commission

found that “the Interpreter’s identity, and associated material [were] classified

by the proper authorities,” AE 616J at 2, presumably based on the Interpreter’s

CIA work. The government argues that public testimony by the Interpreter

could result in potential disclosure of his or her classified identity and

classified information that “could reasonably be expected to cause damage to

the national security.” AE 616J at 1; see Resp’t Br. 3, 5, 12-13. It also posits

that those who would wish the Interpreter harm might be able to identify the

Interpreter by tying together bits and pieces of information that individually

may not be classified, but in the aggregate may properly be classified to protect

the Interpreter. See Resp’t Br. 2-3. This is called mosaic information. See

Detroit Free Press v. Ashcroft , 303 F.3d 681, 706 (6th Cir. 2002) (describing

mosaic information).

The defense counters that alternatives exist that would allow unclassified

testimony by the Interpreter to be taken in an open session. First , the defense

says that “the entirety of the Interpreter’s expected testimony will be

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unclassified,” but if the government thinks classified testimony will be elicited

“it may object under MCRE 505(i)(3)(A).” Pet’r Br. 9. Second, petit ioner

states that the standard 40-second delay for transmission of commission

proceedings to a facility where the public and press can observe open sessions

(which currently is used during NSGB hearings) would be sufficient to prevent

spillage. Id. at 10. The feed can be stopped within the 40-second period at the

direction of the military judge or based on an objection to any particular

testimony. Third, the defense says that the Interpreter’s classified identity can

be concealed. The Interpreter could testify in disguise or from behind a

protective screen, or “the courtroom could be closed for viewing while a l ive

audio feed of the Interpreter’s testimony is broadcast to a public location

outside of the courtroom.” Id.

After considering argument, the military judge on March 1, 2019, denied

the defense motion to take the Interpreter’s testimony in open session. AE 616J.

In pertinent part , he ruled, id . at 2-4:

3. Analysis . The AE 350 series encompassed extensive li tigation

regarding the national security concerns associated with the identity of

the Interpreter and his or her employment prior to seeking employment as

an the Interpreter within the Military Commissions Defense Organization.

The Commission finds that the Interpreter’s identity, and associated

material, was classified by the proper authorities in accordance with the

appropriate regulations. Taking into account the strong presumption in

favor of open proceedings, and considering all possible lesser measures

short of closing the proceedings, the Commission reaffirms its finding in

AE 350RRR [note 7] and orders that the testimony of the Interpreter be

taken in closed session. Specifically, the Commission finds that closure of

the hearing is necessary for the following reasons:

(a) Taking the Interpreter’s testimony in an open session could reasonably

be expected to cause damage to the national security, including

intelligence or law enforcement sources, methods, or activities;

(b) Taking the Interpreter’s testimony in a closed session is necessary to

protect the physical security of the Interpreter and his or her family;

(c) Lesser measures short of closing the proceedings are insufficient to

protect national security or the physical security of the Interpreter and his

or her family. Counsel for the Defense have cited past Commission

rulings granting bifurcated hearings (both open and closed hearings) in

support of their motion. However, the underlying facts in support of these

prior rulings are distinguishable from those raised in AE 616A (AAA).

Here, the identity of the Interpreter is classified and his or her very

appearance before an open session, with or without a pseudonym or

disguise, makes the disclosure of a classified fact highly probable. [note

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8] Further, unlike trained law enforcement personnel, the Interpreter

likely lacks the technical skill to ensure his or her answers remain

unclassified.

* * * [ 3]

(e) The Commission can mitigate the denial of public access to the

Interpreter’s testimony by ordering the Government to expeditiously

conduct a classification review of the unofficial/unauthenticated

transcript and produce a redacted copy of the transcript to the public.

4. Ruling . The Defense motion to take the Interpreter’s testimony in an

open session is DENIED . [ 4]

The military judge distinguished commission cases in which “bifurcated

hearings (both open and closed hearings)” were granted. Id. He noted, “Here,

the identity of the Interpreter is classified and his or her very appearance before

an open session, with or without a pseudonym or disguise, makes the disclosure

of a classified fact highly probable.” Id. The military judge also found that

“unlike trained law enforcement personnel, the Interpreter likely lacks the

technical skill to ensure his or her answers remain unclassified.” Id.

Before us, the government makes three primary contentions. First , it

contends that the findings supporting the Closure Order were sufficient to

enable appellate review and that alternatives to closure were considered. See

Resp’t Br. 13, 18 & n.92. It adds that the military judge also provided measures

to mitigate impact from the closed hearing by ordering release of an unclassified

transcript within ten days of testimony and by making a commitment to grant

recesses during testimony so counsel and the accused may confer. Id. at 13.

Second, the government contests petitioner’s assertion that he has “a Sixth

Amendment right . . . to [public] pretrial hearings” regarding unclassified

testimony, id. at 14, and argues that the M.C.A. and R.M.C. 806 do not provide

a “personal right to a public trial” in a military commission, id. at 12. Rather,

there is only a rule directing that commission trials be open but that rule confers

no individual rights on an accused. Id. at 13 (citing 10 U.S.C. §949a(b)(2)).

3 Below, the defense asked that the accused be present a t any closed hear ing. The mil i tary

judge denied the request because the accused do not hold the required secur i ty c learances .

The wri t peti t ion before us does not seek any rel ief with respect to th is issue.

4 Footnotes 7 and 8 to the Closure Order fo l low:

Note 7, AE 350RRR Order , Defense Motions in AE 350 Ser ies , dated 13 December

2018.

Note 8, See general ly United States v . Pugh, 2016 U.S. Dist . LEXIS 194544

(E.D.N.Y., Feb. 24, 2016) (upholding a l imited closure of the cour troom where

d isclosure of the witness’s ident i ty could reasonably be expected to cause ser ious

damage to U.S. nat ional secur i ty) .

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Third, the government argues that even if petitioner is entitled to a public

commission trial under the Sixth Amendment, any such right does not extend to

a pre-trial hearing involving the Interpreter’s testimony. See id. at 14.

IV. Analysis

A. Petitioner has a right to a public trial under R.M.C. 806

The Sixth Amendment to our Constitution provides, in relevant part , “In

all criminal prosecutions, the accused shall enjoy the right to a . . . public trial

. . . .” The government argues that an accused tried by a military commission

does not enjoy this constitutional protection. What is accurate is that no court

has held that the Sixth Amendment applies to an accused in a military

commission. A constitutional protection has been afforded to someone who is

detained at NSGB only once. The Supreme Court held that the Suspension

Clause in the Constitution applied to a detainee who sought a writ of habeas

corpus. See Boumediene v. Bush , 553 U.S. 723, 771 (2008). This holding

permitted Boumediene to challenge his continued detention. See id. at 795, 798.

In so ruling, the Supreme Court said, “It is true that before today the Court has

never held that noncitizens detained by our Government in territory over which

another country maintains de jure sovereignty have any rights under our

Constitution.” Id . at 770. The Court further said that i ts holding was limited to

the application of the Suspension Clause to Boumediene’s entitlement to seek

the writ. Id. at 795.

However, five of the seven judges of our Superior Court who sat on the en

banc panel in Al Bahlul v. United States , would have held that the Ex Post Facto

Clause in the Constitution also applies in a military commission prosecution.

767 F.3d 1, 18 n.9 (D.C. Cir. 2014) (en banc). The government conceded this

point in its brief. Id. at 18. Thus, the government has acknowledged that at

least one other provision in the Constitution is applicable to proceedings before

a commission held at NSGB. It appears that a majority of judges on the D.C.

Circuit agree with the government position. But see Rasul v. Myers , 563 F.3d

527, 529 (D.C. Cir. 2009) (per curiam) (stating that Boumediene did not “disturb

existing law governing the extraterritorial reach of any constitutional

provisions, other than the Suspension Clause”).

If we can, it is our duty to avoid addressing whether petitioner has a Sixth

Amendment right to a public trial . We must follow the “longstanding principle

of judicial restraint requir[ing] that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.” Camreta v. Greene ,

563 U.S. 692, 705 (2011) (citation omitted); see also Ashwander v. TVA , 297

U.S. 288, 346-47 (1936) (Brandeis, J. , concurring); Colm v. Vance , 567 F.2d

1125, 1132 n.11 (D.C. Cir. 1977) (stating “fundamental principle” of

constitutional avoidance “is especially preferred where the nature of the

constitutional issue poses a difficult decision with significant ramifications”).

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We adhere to this mandate because today there is no need to decide

whether the Sixth Amendment public trial right applies to an accused in a

military commission. Rather, we find that petitioner has a right to a public trial

embedded in the Manual for Military Commissions, R.M.C. 806(a). That Rule

states: “Except as otherwise provided in chapter 47A of ti tle 10, United States

Code, and this Manual, military commissions shall be publicly held.” This rule

is derived from the Manual for Courts-Martial , Rule for Courts-Martial (R.C.M.)

806(a). See M.M.C., pmbl. ¶ 1(a). The two rules, in relevant part , are identical

in all material respects. 5

Thus, we look to the meaning of R.C.M. 806 to help discern the meaning

of R.M.C. 806. We do so by applying the rules of statutory construction

applicable to congressional legislation to the Secretary’s promulgation of the

Manual for Military Commissions. As we recently said, “Congress is presumed

to know the judicial interpretation of statutory language when enacting

legislation. When it later uses the same language in reenacting the statute or

enacting another statute, it is understood that Congress is adopting the extant

statutory interpretation.” Al Bahlul v. United States , 2019 U.S. CMCR LEXIS

1, *8 (2019) (citing Owens v. Republic of Sudan , 864 F.3d 751, 778 (D.C. Cir.

2017) (citing Lorillard v. Pons , 434 U.S. 575, 580 (1978)); Johnson v. United

States , 529 U.S. 694, 710 (2000) (stating “when a new legal regime develops out

of an identifiable predecessor, it is reasonable to look to the pre-cursor in

fathoming the new law”)).

It is settled law that the accused in a court-martial has a Sixth Amendment

right to a public trial . See United States v. Ortiz , 66 M.J. 334, 338 (C.A.A.F.

2008) (citing U.S. Const. amend. VI). In addition, across the years, military

courts have held that this right also derives from R.C.M. 806. See, e.g., id. at

336 n.2 (acknowledging “the public trial right in R.C.M. 806”); Ctr. for Const.

Rts. v. United States , 72 M.J. 126, 130 (C.A.A.F. 2013) (Baker, C.J., dissenting)

(stating “right to a public trial is embedded in [R.C.M.] 806”); United States v.

Walker , 66 M.J. 721, 750 (N.M. Ct. Crim. App. 2008) (acknowledging

“appellant’s right to a public trial under R.C.M. 806”), aff’d in part, rev’d in

part on other grounds , 71 M.J. 363 (C.A.A.F. 2012); United States v. Michaud ,

48 C.M.R. 379, 382-83 (N.C.M.R. 1973) (stating right to public trial in military

is guaranteed by “regulations governing trials by courts-martial”); United States

v. Frye , 25 C.M.R. 769, 773 (A.F.B.R. 1957) (“The right to a public trial in the

military is secured by the Manual for [C]ourts-Martial . . . .”); see also Ctr. for

5 Compare Manual for Cour ts-Mart ia l (2019 ed.) , R.C.M. 806(a) , s ta t ing that “courts-mart ia l

shal l be open to the publ ic . For purposes of th is ru le, ‘public’ includes members of both the

mil i tary and civ i l ian communit ies ,” with Manual for Mil i tary Commissions (2016 rev. ed.) ,

Rule for Mil i tary Commissions 806(a) , s ta t ing that “mil i tary commissions shal l be publ ic ly

held. For purposes of th is ru le, ‘publ ic’ includes representat ives of the press,

representat ives of nat ional and in ternat ional organizat ions , as determined by the Off ice of

the Secretary of Defense, and cer tain members of both the mil i tary and civ i l ian communit ies .

Access to mil i tary commissions may be constrained by locat ion, the s ize of the facil i ty ,

physical secur i ty requirements, and nat ional secur i ty concerns.”

11

Const. Rts. v. Lind , 954 F. Supp. 2d 389, 401 (D. Md. 2013) (“The right to a

public trial is also embedded in R.C.M. 806 . . . .”). With the exception of the

Center for Constitutional Rights v. United States , 72 M.J. 126, 6 each of the

above courts-martial cases involved the accused seeking to enforce his personal

right to a public trial . 7

Michaud is especially instructive. The U.S. Navy Court of Military

Review held:

The right of one charged with crime to a public trial is a fundamental

right of great importance. It is a common-law right, as well as a right

expressly guaranteed . . . by the regulations governing trials by courts-

martial . . . .

* * *

Although the Uniform Code of Military Justice does not specifically

enunciate this right of public trial , it is clearly expressed in the Manual

for Courts-Martial, United States, 1969 (Rev.) . . . .

48 C.M.R. at 382-83. Thus, the long history of R.C.M. 806 securing the

accused’s personal right to a public court-martial informs our conclusion that

R.M.C. 806 secures the same right for an accused facing trial before a military

commission.

We also find that a personal right to a public trial is necessary to comply

with the holding in Hamdan v. Rumsfeld , 548 U.S. 557 (2006). 8 We begin

analysis under Hamdan by turning to the preamble of the Manual for Military

Commissions (2016 rev. ed.), which states, in relevant part ,

1. (a) The procedures for military commissions are based upon the

procedures for trial by general courts-martial under the Uniform Code of

Military Justice (U.C.M.J.) . . . .

* * *

6 In Center for Const i tu t ional Rights , 72 M.J. a t 129, the organizat ion-plain t iff made the

c la im on behalf of the service member, who did not jo in in the l i t igation.

7 We may look to mil i tary case law to help inform our decis ions. I t is ins truct ive but not

b inding. 10 U.S.C. § 948b(c) .

8 Our reference to the holding in Hamden refers to Just ice Stevens’s opinion for the Court

that commanded the votes of f ive Just ices , except as to Par ts V and VI-D-iv in which Just ice

Kennedy did not jo in. See 548 U.S. a t 638.

12

2. . . . . they provide procedural and evidentiary rules . . . which are

recognized as indispensable by civilized peoples as required by Common

Article 3 of the Geneva Conventions of 1949.

The significance of the representation in the second paragraph flows directly

from the holding in Hamdan . Hamdan was tried under protocols established by

a delegation of the President to the Secretary of Defense in Military

Commission Order No. 1 (Mar. 21, 2002). Hamdan , 548 U.S. at 587. The

Supreme Court held that the “procedures that the Government has decreed will

govern Hamdan’s trial by commission violate [domestic common and UCMJ

statutory] laws,” as well as the law of nations including Common Article 3 of

the Geneva Conventions of 1949, to which the United States is a signator. Id. at

613.

Common Article 3(1), in relevant part , states:

the following acts are and shall remain prohibited at any time and in any

place whatsoever with respect to [persons taking no active part in the

hostilities, including prisoners of war, and “those placed hors de combat

by . . . detention”]:

* * *

(d) the passing of sentences and the carrying out of executions without

previous judgment pronounced by a regularly constituted court, affording

all the judicial guarantees which are recognized as indispensable by

civilized peoples.

Geneva Convention Relative to the Treatment of Prisoners of War, opened for

signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 31. 9

Hamdan addressed, among other things, the application of section 6(B) of

Military Commission Order No. 1. The Supreme Court stated that this section

empowered the Appointing Authority or the presiding officer to close the

courtroom and thereby exclude the accused and his counsel from commission

proceedings. 548 U.S. at 614. The Court determined this would deny Hamdan

“one of the most fundamental protections afforded [an accused] . . . : the right

to be present.” Id. at 624. The Court concluded that the procedures in Military

Commission Order No. 1 fell short of what is required by Common Article 3,

including by not “affording [Hamdan] all the judicial guarantees which are

recognized as indispensable by civilized peoples .” Id. at 632 (emphasis added)

(quoting 6 U.S.T., at 3320 (Art. 3, ¶ 1(d)).

9 Art ic le 3 “appears in al l four Geneva Conventions” and thus is referred to as “Common

Art ic le 3 .” Hamdan , 548 U.S. a t 629. We ci te only to the Geneva Convention Relat ive to the

Treatment of Pr isoners of War .

13

Under English common law, a defendant’s public trial right pre-dates the

Norman Conquest in 1066. See Richmond Newspapers, Inc. v. Virginia , 448

U.S. 555, 565-66 (1980) (plurality opinion). That right “out of which the Sixth

Amendment provision grew . . . . [derives from] an unbroken tradition at

English common law of open judicial proceedings in criminal cases.” Gannett

Co. v. DePasquale , 443 U.S. 368, 422-23 (1979) (Blackman, J., concurring in

part, dissenting in part). Further, “[t]he right to an open public trial is a shared

right of the accused and the public, the common concern being the assurance of

fairness.” Press-Enter. Co. v. Superior Court , 478 U.S. 1, 7 (1986) (Press-

Enter. II).

In Richmond Newspapers seven of eight justices agreed, 10 “The First

Amendment, in conjunction with the Fourteenth, prohibits governments from

‘abridging . . .’ open trials . . .” 448 U.S. at 575 (Burger, C.J. , White &

Stevens, JJ. , opinion); see id. at 584-85 (Brennan & Marshall , JJ. , concurring in

judgment), 599 (Stewart, J., concurring in judgment), 604 (Blackman, J.,

concurring in judgment) . “Absent an overriding interest articulated in findings,

the trial of a criminal case must be open to the public.” Id. at 581.

In his Richmond Newspapers plurality opinion, Chief Justice Burger

traced the lengthy history of public trials. He said, “The origins of the

proceeding which has become the modern criminal trial in Anglo-American

justice can be traced back beyond reliable historical records. . . . What is

significant for present purposes is that throughout its evolution, the trial has

been open to all who cared to observe.” Id. at 564. He pointed out “the

presumptive openness of the trial , which English courts were later to call ‘one

of the essential qualit ies of a court of justice,’ Daubney v. Cooper , 10 B. & C.

237, 240, 109 Eng. Rep. 438, 440 (K.B. 1829), was [] also an attribute of the

judicial systems of colonial America.” Id. at 567. Chief Justice Burger

concluded:

the historical evidence demonstrates conclusively that at the time when

our organic laws were adopted, criminal trials both here and in England

had long been presumptively open. This is no quirk of history; rather, it

has long been recognized as an indispensable attribute of an Anglo-

American trial .

Id. at 569 (emphasis added).

The long and deep history of the public trial , see, e.g., id. at 565-69, the

Hamdan dictate that an accused must be afforded the “fundamental protections”

owed a criminal defendant, 548 U.S. at 624, the further Hamdan holding that the

accused is entit led to “all the judicial guarantees which are recognized as

indispensable by civilized peoples,” id. at 632 (emphasis added; citation

10 Jus t ice Powell d id not par t ic ipate in Richmond Newspapers, Inc. v . Virginia , 448 U.S. 555,

581 (1980).

14

omitted), and military case law recognizing that a personal right to a public trial

is embedded in R.C.M 806, leads us to conclude that R.M.C. 806’s requirement

that “military commissions shall be publicly held” provides an accused with a

personal right to a public trial . For these reasons, we further hold that a

military accused’s right to a public trial “is clear and indisputable.” Al-Nashiri ,

791 F.3d at 78 (quoting Cheney , 542 U.S. at 381). This right, however, as the

Supreme Court has made clear, is a qualified right, which we address next.

B. The right to a public trial applies to the hearing to take

the Interpreter’s testimony

Petitioner’s right to a public trial does not necessarily mean that he has a

right to have the Interpreter’s unclassified testimony taken in an open session.

The government argues that petitioner has no such right. See Resp’t Br. 5, 13,

16-17, 19. Petit ioner argues otherwise. Pet’r Br. 2, 5-6, 8-11; see Press Br. 3-6

(arguing press and public’s right); ACLU Br. 4-6 (arguing public’s right). Thus,

we examine the case law regarding a court’s obligation to hold open hearings

for matters in a criminal prosecution occurring beyond the boundaries of the

actual trial , that is, before the jury is sworn and after verdict. While we refrain

from deciding whether petitioner’s right to a public trial derives from the Sixth

Amendment, see supra Part IV.A, we look to Sixth Amendment, as well as First

Amendment, jurisprudence to inform our interpretation of this right under

military commission law.

Sixth Amendment jurisprudence is well developed. In addition, case law

analyzing the public and press right of access to judicial proceedings under the

First Amendment is equally developed and relevant to understanding the Sixth

Amendment right. See United States v. Rivera , 682 F.3d 1223, 1229 (9th Cir.

2012). In Rivera , the Ninth Circuit said:

As the Supreme Court observed in Waller v. Georgia , 467 U.S. 39, 104 S.

Ct. 2210, 81 L. Ed. 2d 31 (1984), however, precedents concerning the

reach of the public’s First Amendment right of access may inform the

scope of the defendant’s Sixth Amendment right to a public trial , because

“there can be litt le doubt that the explicit Sixth Amendment right of the

accused is no less protective of a public trial than the implicit First

Amendment right of the press and public.” Id. at 46 (emphasis added).

Id.; accord Ortiz , 66 M.J. at 338 (stating “the Supreme Court has looked to its

First Amendment jurisprudence regarding the press and public’s right to attend

criminal trials and incorporated the test used there in the Sixth Amendment

context”) (quoting Waller , 467 U.S. at 45-46)).

The right to a public trial does not mean that all aspects of the

proceedings from presentment or arraignment to sentence must be open to the

public in the absence of a qualifying exception. For example, there is no right

15

of public or press access to bench conferences. Richmond Newspapers , 448 U.S.

at 598 n.23. In addition to the trial itself, there is a long list of court

proceedings that are subject to the public access and public trial rights under the

First and Sixth Amendments, which include: preliminary hearings in a criminal

prosecution, Press-Enter. II , 478 U.S. 1, pretrial suppression, due process, and

entrapment hearings, United States v. Criden , 675 F.2d 550 (3d Cir. 1982),

suppression hearings, Waller , 467 U.S. at 48, omnibus pretrial hearings, United

States v. Waters , 627 F.3d 345, 359 (9th Cir. 2010), motion in limine, Rovinsky

v. McKaskle , 722 F.2d 197 (5th Cir. 1984) (en banc), voir dire, Press-Enter. I . ,

464 U.S. 501, plea hearings United States v. Haller , 837 F.2d 84, 86-87 (2d Cir.

1988), post-trial hearings to investigate jury misconduct, United States v.

Simone , 14 F.3d 833, 840 (3d Cir. 1994), and sentencing, Rivera , 682 F.3d at

1228.

The Third Circuit in Criden said, “[t]he Richmond Newspapers Court

found open court proceedings to be mandated by at least six societal interests.”

675 F.2d at 556. We summarize these interests as: (1) promoting informed

discussion; (2) assuring that “proceedings were conducted fairly” and promoting

“public confidence” in the judicial system; (3) providing an outlet for

community concern; (4) “as a check on corrupt practices by exposing the

judicial process to public scrutiny”; (5) “enhance[ing] the performance of all

involved”; and (6) “discourag[ing] perjury.” 11 Id.

The Ninth Circuit stated in Rivera:

“Although the Sixth Amendment refers to a ‘public trial ,’ the right

encompasses more than the trial itself,” extending “to those hearings

whose subject matter involve[s] the values that the right to a public trial

serves.” United States v. Waters , 627 F.3d 345, 360 (9th Cir.2010) . . . .

“Those values are: (1) to ensure a fair trial , (2) to remind the prosecutor

11 The ful l text reads , without c i ta t ions,

Firs t , publ ic access to cr iminal proceedings promotes informed discussion of

governmental affa irs by providing the publ ic with a more complete unders tanding of

the judicia l system. This publ ic access, and the knowledge gained thereby, serve an

important “educat ive” in teres t . Second, publ ic access to cr iminal proceedings g ives

“ the assurance that the proceedings were conducted fa ir ly to a l l concerned” and

promotes the publ ic “percept ion of fa irness.” Publ ic conf idence in and respect for the

judicia l system can be achieved only by permit t ing fu l l publ ic v iew of the

proceedings. Third, publ ic access to cr iminal proceedings has a “s ignif icant

community therapeut ic value” because i t provides an “out le t for community concern,

host i l i ty , and emotion.” Four th, publ ic access to cr iminal proceedings serves as a

check on corrupt pract ices by exposing the judicia l process to publ ic scrut iny, thus

d iscouraging decis ions based on secret b ias or par t ia l i ty . Fif th , publ ic access to

cr iminal proceedings enhances the performance of a l l involved. Finally , publ ic access

to cr iminal proceedings d iscourages perjury.

Criden , 675 F.2d at 556 (ci ta t ions omit ted) .

16

and judge of their responsibility to the accused and the importance of

their functions, (3) to encourage witnesses to come forward, and (4) to

discourage perjury.” Id. (quoting United States v. Ivester , 316 F.3d 955,

960 (9th Cir. 2003)).

682 F.3d at 1228 (brackets in original).

The Fifth Circuit in Rovinsky made this point:

The right to a public trial is prophylactic. It is not merely a

safeguard against unfair conviction. “Open trials play a fundamental role

in furthering the efforts of our judicial system to assure the criminal

defendant a fair and accurate adjudication of guilt or innocence.” A

public trial protects the right of the accused to have the public know what

happened in court; to let the citizenry weigh his guilt or innocence for

itself, whatever the jury verdict; to assure that the procedures employed

are fair. Thus, the right is both primary and instrumental: not merely a

method to assure that nothing untoward is done clandestinely but a

guarantee against the very conduct of private hearings. It is “a check on

judicial conduct and tends to improve the performance both of the parties

and of the judiciary.” Even absent a showing of prejudice, infringement

of the right to a public trial exacts reversal as the remedy.

722 F.2d at 201-02 (footnotes omitted); see also Press-Enter. I , 464 U.S. at 508

(stating “[o]penness” in criminal trials “enhances both the basic fairness of the

criminal trial and the appearance of fairness so essential to public confidence in

the system”); Company Doe v. Pub. Citizen , 749 F.3d 246, 263 (4th Cir. 2014)

(stating “public access to the courts promotes the institutional integrity of the

Judicial Branch”).

In the case before us, the most important of the “societal interests” and

“values” underlying our assessment of whether the law requires an open session

to hear the Interpreter’s unclassified testimony is the need for public scrutiny of

what will occur during the hearing, which promotes public confidence in the

process. See Press-Enter. I , 464 U.S. at 508, 510; Richmond Newspapers , 448

U.S. at 572; Criden , 675 F.2d at 556. Here, the defense seeks to determine

whether there has been governmental misconduct. It is undisputed that the

Interpreter worked for the CIA, later became the interpreter for Bin al Shibh,

and also worked for the other defense teams. See AE 350RRR at 1, 4, 10. This

gave the Interpreter access to protected information common to all defendants.

The defense says that it had no knowledge of the Interpreter’s prior employment

until Bin al Shibh identified the Interpreter in open court on February 9, 2015.

See id. at 1. When challenged, the Interpreter falsely denied having worked for

the CIA. Id. The government promptly disclosed that the Interpreter had been a

CIA employee. Id. The government also disavows any knowledge of how the

17

Interpreter came to work for the defense and denied that it had “planted” the

Interpreter in the defense camp. Id. at 1, 4; Resp’t Br. 16.

Accordingly, the purpose of the hearing is to seek information that may or

may not be evidence of governmental misconduct and to determine the extent, if

any, the defense’s privileged and protected information has been compromised.

See AE 350RRR at 10-11. Regardless of the hearing’s outcome, it is important

for the integrity of the 9/11 prosecution that the truth come out and be available

to anyone who cares to inquire. See Richmond Newspapers , 448 U.S. at 564. As

Justice Brandeis famously wrote, “Sunlight is said to be the best of disinfectants

. . . .” What Publicity Can Do , Harper’s Wkly., Dec. 20, 1913, at 10,

https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-

collection/other-peoples-money-chapter-v. The concept of sunshine also

provides the grounding for Supreme Court and Circuit Court holdings stating

that a hearing involving alleged misconduct by prosecutors, agents, or police

ordinarily should be open.

For example, in holding that suppression hearings must be public, absent

a qualifying exception, the Supreme Court focused on the benefit of openness:

The need for an open proceeding may be particularly strong with respect

to suppression hearings. A challenge to the seizure of evidence

frequently attacks the conduct of police and prosecutor. . . . The public in

general also has a strong interest in exposing substantial allegations of

police misconduct to the salutary effects of public scrutiny.

Waller , 467 U.S. at 47. 12 In holding that a hearing on a motion to dismiss an

indictment for alleged government misconduct must be open, the Ninth Circuit

in Waters said, “the public also has an interest in having allegations of

government misconduct heard in an open forum” because such allegations

“implicated the values” that demanded openness. 627 F.3d at 360.

In a case involving alleged jury misconduct, the Third Circuit observed,

“Opening the judicial process to public scrutiny discourages such practices and

assures the public of the integrity of the participants in the system.” Simone , 14

F.3d at 839. It pointed out, “as the Fourth Circuit has observed . . . ‘the value

of “openness” itself, [is] a value which is threatened whenever immediate access

to ongoing proceedings is denied, whatever provision is made for public

12 See also In re Oliver , 333 U.S. 257, 268-71 (1948) (“The t radi t ional Anglo-American

dis t rus t for secret tr ia ls has been var iously ascr ibed to the notor ious use of th is pract ice by

the Spanish Inquis i t ion, to the excesses of the English Court of Star Chamber, and to the

French monarchy’s abuse of the let tre de cachet . All of these ins t i tut ions obviously

symbolized a menace to l iber ty. . . . Whatever other benef i ts the guarantee to an accused that

h is tr ia l be conducted in publ ic may confer upon our society, the guarantee has a lways been

recognized as a safeguard against any at tempt to employ our cour ts as instruments of

persecut ion. The knowledge that every cr iminal t r ia l is subject to contemporaneous review in

the forum of publ ic opinion is an effect ive res tra in t on possible abuse of judicia l power.”)

18

disclosure’” at a later time. Id. at 842 (quoting In re Charlotte Observer , 882

F.2d 850, 856 (4th Cir.1989)). In a case involving closure of special interest

immigration hearings “where the government has nearly unlimited authority,”

Detroit Free Press , 303 F.3d at 704, the Sixth Circuit remarked that “the

information contained in the appeal or transcripts [from the closed hearing] will

be stale, and there is no assurance that they will completely detail the

proceedings,” id. at 711. See ABC, Inc. 360 F.3d at 99-100 (stating “some

information, concerning demeanor, non-verbal responses, and the like, is

necessarily lost in the translation of a live proceeding to a cold transcript”

(quoting United States v. Antar , 38 F.3d 1348, 1360 n.13 (3rd Cir.1994))).

For these reasons we conclude that petitioner has a qualified right to an

open session for the taking of the Interpreter’s unclassified testimony. We find

this right to be “clear and indisputable,” Al-Nashiri 791 F.3d at 78 (quoting

Cheney , 542 U.S. at 381)), for two core reasons. First , the now well-developed

law has established that the right to a public trial extends to more than just the

trial . See, cited cases supra . Second, sunshine supports values and “societal

interests” important to the integrity of a proceeding, Criden , 675 F.2d at 556

(citing Richmond Newspapers , 448 U.S. 550), particularly when the hearing will

inquire into potential allegations of governmental misconduct, see Waller , 467

U.S. at 46-47.

C. The Closure Order fails to satisfy the tests in Press-

Enterprise I and its progeny

The public trial right under military law may be curtailed only in narrow

and limited circumstances. See R.C.M. 806(b)(4). The commentary to that rule

states: “A session may be closed over the objection of the accused or the public

upon meeting the constitutional standard set forth in this Rule.” R.C.M. 806,

Discussion, at pt. II-97. That standard is as follows:

The presumption of openness may be overcome only by an overriding

interest based on findings that closure is essential to preserve higher

values and is narrowly tailored to serve that interest. The interest is to be

articulated along with findings specific enough that a reviewing court can

determine whether the closure order was properly entered.

Press-Enter. I , 464 U.S. at 510. The Supreme Court embraced this standard in

Waller . 467 U.S. at 45, 48; see also Press-Enter. II , 478 U.S. at 13-14 (stating

“specific, on the record findings” are necessary to show closure “‘is narrowly

tailored to serve’” the higher interest at stake (quoting Press-Enter. I , 464 U.S.

at 510)).

The standard under which a military commission may be closed is stated

in 10 U.S.C. § 949d(c) and R.M.C. 806(b)(2). The military commission judge

may “only” close a session “upon making a specific finding that such closure is

19

necessary to— (i) protect information the disclosure of which could reasonably

be expected to damage national security, including intelligence or law

enforcement sources, methods, or activities; or (ii) ensure the physical safety of

individuals.” R.M.C. 806(b)(2)(B); 10 U.S.C. § 949d(c)(2) (same). This

standard substantially complies with the constitutional test in Press–Enterprise

I . See 464 U.S. at 510 (stating that closure must be “necessitated by a

compelling government interest, and is narrowly tailored to serve that interest”

(quoting Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 606-07

(1982))). The commission standard differs from the Manual for Courts-Martial

(2019 ed.) standard in two pertinent ways. First, closure under R.C.M.

806(b)(4)(B) may be “no broader than necessary”; R.M.C. 806(b)(2) has no

similar language. Second, R.C.M. 806(b)(4)(C) requires that “reasonable

alternatives . . . [be] considered and found inadequate”; this requirement also is

not included in R.M.C. 806(b)(2).

We find there are three considerations to address when considering a

request to close a military commission hearing. First , under both civilian and

military law, to overcome the “presumption of openness,” a closure order must

be tailored narrowly. Waller, 467 U.S. at 45 (quoting Press-Enter. I , 464 U.S.

at 510); see R.C.M. 806(b)(4)(B). Without this caveat, the requirement that

closure may only be predicated upon a specific finding of “an overriding

interest,” Waller , 467 U.S. at 45 (quoting Press-Enter. I , at 510), is hollow. If

no overriding interest is found, there can be no closure. On the other hand, if a

protected interest is found, closure can extend no further than necessary to

protect that interest. Accordingly, we hold that in a military commission case a

closure order is required to be “narrowly tailored to serve th[e] interest” that

justifies closure and may extend no further. Waller , 467 U.S. at 45 (quoting

Press-Enter. I , 464 U.S. at 510).

Second, “There is a fairly broad consensus that, before a court closes a

pretrial criminal hearing, i t must at least consider alternatives to closure and

explicitly state its reasons on the record for rejecting such alternatives.”

Criden , 675 F.2d at 560 (collecting cases); see also Waller , 467 U.S. at 48;

Press-Enter. I, 464 U.S. at 511; R.C.M. 806(b)(4)(C). It is a part of crafting a

narrowly tailored order, for if there is a suitable alternative – by definition it

must be used or the closure order will be too broad. Thus, the military judge

must consider reasonable alternatives when assessing a request for closure in a

commission case. If a considered alternative is rejected, the judge must state

why it is insufficient.

Third, the military judge must make findings about the interest to be

protected, the lack of alternatives, and the narrowness of the order that are

“specific enough” to permit a reviewing court to “determine whether the closure

order was properly entered.” Waller , 467 U.S. at 45 (quoting Press-Enter. I ,

464 U.S. at 510); see R.M.C. 806(b)(2)(B); R.C.M. 806(b)(4)(D). Regarding

what i t cannot say in public, “if the court concludes that a denial of public

20

access is warranted, the court may file its statement of the reasons for its

decision under seal.” In re Wash. Post Co. , 807 F.2d 383, 391 (4th Cir. 1986).

The Fourth Circuit made the following additional point in Washington

Post , also applicable here:

We note further that, troubled as we are by the risk that disclosure

of classified information could endanger the lives of both Americans and

their foreign informants, we are equally troubled by the notion that the

judiciary should abdicate i ts decisionmaking responsibility to the

executive branch whenever national security concerns are present. . . . A

blind acceptance by the courts of the government’s insistence on the need

for secrecy . . . without a statement of reasons, would impermissibly

compromise the independence of the judiciary and open the door to

possible abuse.

Id.at 391-92.

With these principles in mind, we find that the Closure Order entered

below is materially deficient. See AE 616J. First, there are either no or

insufficient specific findings of fact to justify the order’s application to each of

the three topics to which the commission has limited the hearing. See AE

350RRR. Second, the interests to be protected are not adequately parsed with

respect to each of the three topics. Third, we cannot determine from the four

corners of the Closure Order whether there are no reasonable alternatives to

taking all of the Interpreter’s testimony in a closed session with later release of

an unclassified transcript. For example, is there a reasonable alternative to a

closed session for testimony about whether any of the defense’s privileged and

work product information was compromised by the Interpreter?

To explain further our conclusion, we look at the three topics identified in

the Closure Order for the hearing to which the defense may only inquire. We

restate them here for convenience: “(1) the circumstances leading up to [the

Interpreter’s] employment with the Defense, (2) the extent to which [the

Interpreter] had access to privileged information during [the Interpreter’s]

tenure as a Defense interpreter, and (3) whether or not [the Interpreter] shared

any information gained during [the Interpreter’s] tenure as a Defense interpreter

with any other persons or organizations.” AE 350RRR at 9; see also id. at 10-

11.

The plain text of the second and third topics concerning defense

privileged and confidential information do not appear to have anything to do

with classified information or information potentially subject to classification.

Perhaps there is a reason that meets the stringent legal standard applicable to

closed session testimony on these topics. We cannot tell , however, from the

Closure Order whether the criteria that would permit such closed testimony

21

exists or whether the order is sufficiently narrow with respect to the second and

third topics. See Waller , 467 U.S. at 48; Press-Enter. I , 464 U.S. at 510-11;

R.M.C. 806(b)(2)(B); R.C.M. 806(b)(4).

We have no reason to suspect that the government will not act in good

faith in i ts classification decisions if all testimony is heard in a closed session.

The courts, however, have virtually no authority to address mis-classification by

the government. See e.g. R.M.C. 806(b)(2), Discussion, at pt. II-76 (describing

military judge’s role as l imited to only determining government’s compliance

with classification procedures); Mil. Comm. R. Evid. 505(f), (h)7, Discussion,

at pt. III-27-28, -33 (same).

Consequently, the effect of a closure order, particularly a deficient one,

can impair “public confidence in the [9/11 prosecution].” Press-Enter. I , 464

U.S. at 508. Given this, there is a need to scrutinize closely the government’s

reasons for wanting to hold a closed session to take testimony that seeks to

determine if there was governmental wrongdoing. “[C]ourts must impede

scrutiny of the exercise of [their] judgment only in the rarest of circumstances.

This is especially so when a judicial decision accedes to the requests of a

coordinate branch, lest ignorance of the basis for the decision cause the public

to doubt . . . .” U.S. v. Aref , 533 F.3d 72, 83 (2d Cir. 2008) (emphasis added)

(quoting The Federalist No. 78 (Alexander Hamilton)). Here, we find the

Closure Order deficient because, among other reasons, i ts findings do not

provide sufficient information to permit review by our Court. See Press-Enter.

I , 464 U.S. at 510, cited with approval in Waller , 467 U.S. at 48; see also Ortiz ,

66 M.J. 334, 339-40. We also find it important that if all of the Interpreter’s

testimony must be taken in a closed session, the military judge shall provide as

full a public explanation as possible so that the accused and the public may

understand the commission’s reasoning.

The first topic addressed by the Closure Order implicates information that

is, or potentially is, classified. See AE 350RRR at 9-10. It is easy to discern a

national security interest that requires protection of the Interpreter’s past CIA

employment. The Closure Order, however, offers no findings regarding this

interest; nor does it provide findings about risks to the Interpreter’s safety

arising from open testimony. The military judge’s first two findings state:

(a) Taking the Interpreter’s testimony in an open session could reasonably

be expected to cause damage to the national security, including

intelligence or law enforcement sources, methods, or activities;

(b) Taking the Interpreter’s testimony in a closed session is necessary to

protect the physical security of the Interpreter and his or her family; . . .

AE616J at 3. These are conclusions, essentially repeating the language in 10

U.S.C. § 949d(c)(2) and R.M.C. 806(b)(2). Simone rejected these types of

22

conclusory findings: “While the trial court in this case alluded to a number of

factors that it felt militated in favor of closure, these statements were in the

nature of conclusions and offered no insight into why those factors required the

hearing to be held in camera .” 14 F.3d at 841; see also Waller , 467 U.S. at 48

(analyzing Press-Enter. I test and stating that the proffer in the case at bar

lacked specificity about the who, how, and what as to harm and thus yielded

“broad and general” findings insufficient to “justify closure of the entire

hearing”); Newsday LLC v. Cty. of Nassau , 730 F.3d 156, 165 (2d Cir. 2013)

(“Broad, general, and conclusory findings are insufficient to justify closure.”);

Wash. Post , 807 F.2d at 392 (“T]he court may not base its decision on

conclusory assertions alone, but must make specific factual findings.”).

The second part of the first topic, though, concerns how the Interpreter

came to be employed by the defense. See AE 450RRR at 9-10. The Closure

Order contains no specific findings discussing how answers to this question will

or might implicate either national security or safety. See AE 616J. The Closure

Order, therefore, fails to provide the necessary specificity regarding this part of

topic one. 13 See Waller , 467 U.S. at 45; Press-Enter. I , 464 U.S. at 510. The

law requires factual findings “specific enough” to allow this Court to assess the

need for closure as determined by the military judge. Press-Enter. I , 464 U.S.

at 510, cited with approval in Waller , 467 U.S. at 45, 48; see also, e.g., Press-

Enter. II , 478 U.S. at 13-14; Ortiz , 66 M.J. 334, 339-40. In the instant case, the

commission said:

Here, the identity of the Interpreter is classified and his or her very

appearance before an open session, with or without a pseudonym or

disguise, makes the disclosure of a classified fact highly probable.

Further, unlike trained law enforcement personnel, the Interpreter likely

lacks the technical skill to ensure his or her answers remain unclassified.

AE616J at 3. 14 More needs to be said explaining the commission’s reasoning.

We also find the Closure Order deficient in providing information from

which we can determine whether the scope of the closure is as narrow as

possible. See Waller , 467 U.S. at 45 (quoting Press-Enter. I , 464 U.S. at 510).

We do not diminish one whit the need to protect the safety of the

Interpreter or the classified nature of his or her identity. Both are indeed higher

interests to protect. Perhaps there are no conditions under which [the

Interpreter] can give public testimony without compromising in a real or

13 The Closure Order says “ the Commission reaff irms i ts f inding in AE 350RRR.” AE 616J a t

3 . I t is unclear , however, what f indings in the commission’s pr ior order i t re l ies upon to

sat isfy the closure s tandard.

14 Cit ing general ly United States v . Pugh , 2016 U.S. Dis t . LEXIS 194544 (E.D.N.Y. Feb. 24,

2016) (upholding par t ial cour troom closure on reasonable expectat ion of ser ious damage to

nat ional secur i ty from disclosure of witness’ ident i ty) .

23

probable (not speculative) sense his or her safety or the classified nature of his

or her identity. The Closure Order, however, does not tell how that could be so.

For example, the Interpreter will testify via a video feed when he or she testifies

in open session. AE 350RRR at 10. The commission did not address why

completely blocking the Interpreter’s face from view—from being visible in the

courtroom and in the public gallery—is insufficient.

In argument to this Court, the government raised a concern about the use

of forensic voice analysis to determine the Interpreter’s identity. Resp’t

Response to Amici at 10. However, i t did not explain how the press or public

might obtain the audio of the Interpreter’s testimony for recognition analysis

when audio/video recording is prohibited without the Secretary’s express

permission, R.M.C. 806(c), and access to commission sessions is controlled by

the Secretary, see M.M.C., pmbl. ¶ 1(d); R.M.C. 806(b)(1). Again, perhaps the

government can explain to the commission how voice recognition technology

could be employed during an open session or from audio derived from such a

hearing. In doing so, the government must show a “substantial probability” that

harm to the higher interest will occur. Press-Enter. II , 478 U.S. at 14; see also

Dhiab v. Obama , 70 F. Supp. 3d 465, 468 (D.D.C. 2014) (concerning

government request to close an “entire” hearing, stating government bears

“burden of establishing a substantial probability of prejudice to a compelling

interest”). The government, therefore, must demonstrate that there is a

“substantial probability” that this technology can be both employed and

successfully used if the Interpreter testifies in an open session. The commission

must make specific findings if it agrees with the government’s arguments that

for safety and identification reasons the Interpreter’s testimony cannot be

transmitted through an audio feed to the courtroom and the public gallery, and

there are no reasonable alternatives. See Press-Enter. I , 464 U.S. at 510, cited

with approval in Waller , 467 U.S. at 45, 48; see also, e.g., Press-Enter. II , 478

U.S. at 13-14; Ortiz , 66 M.J. 334, 339-40.

The government argues the “mosaic intelligence” concept as well , see

Resp’t Br. 2, 18, which the Sixth Circuit has aptly explained in Detroit Free

Press , 303 F.3d at 706. This case involved “special interest” deportations of

non-citizens in the aftermath of 9/11 and the government’s effort to close the

resulting removal hearings. See id. at 683-84. The government argued, in part,

that those who would do this nation harm could string together bits and pieces

of non-classified information and glean from it information that would be

helpful to them and harmful to this nation. See id. at 706-07, 709. Recognizing

the legitimacy of the government’s mosaic argument, the Sixth Circuit

nonetheless held that a bare argument was insufficient to justify closure:

“While the risk of ‘mosaic intelligence’ may exist , we do not believe

speculation should form the basis for” closure. Id. at 709. As noted, the test

for closure requires a showing of “substantial probability” that unclassified

testimony taken in an open session will result in “mosaic intelligence” that may

reveal classified information. See Press-Enter. II , 478 U.S. at 14.

24

The Sixth Circuit found the government’s concerns over the potential for

spillage, the inadvertent disclosure of classified information, to be legitimate

and entitled to a certain amount of deference. See Detroit Free Press , 303 F.3d

at 707. Yet, the government stil l had to provide more than just an expression of

concern to justify closure. See id. at 705 (requiring “findings specific enough”

for review (quoting Press-Enter. II , 478 U.S. at 510)). A bald proffer of

spillage was rejected in Dhiab , where the District Court for the District of

Columbia said that

counsel and the Court have dealt carefully and professionally with

classified, protected and public information. The courtroom has been

sealed without any problems whenever necessary to discuss classified and

protected information. Moreover, it is in the interest of all counsel to be

vigilant during the Hearing to bring any potentially classified or protected

information to the Court’s attention before testimony is given.

70 F. Supp. 3d at 468.

In the instant case, the commission’s finding that “the Interpreter likely

lacks the technical skill to ensure his or her answers remain unclassified,” AE

616J at 3, without more, is insufficient to close the session for topics that

appear to involve only unclassified information. 15 The finding does not explain

why a 40-second transmission delay is inadequate for the Interpreter’s testimony

about (1) how the Interpreter came to be employed by the defense excluding, of

course, testimony involving past CIA employment, (2) the Interpreter’s

acquisition of defense privileged information, or (3) any potential dissemination

of such information. See 350RRR at 9-11.

If the government stil l presses its arguments regarding classified “mosaic

intelligence” or spillage, i t should provide concrete examples of the “what” and

the “why” underlying its concerns so that the commission can assess the reasons

and make the appropriate, specific factual findings on whether to take certain

testimony in closed session.

All this is to say that on remand both the government and the commission

need to do more to justify a Closure Order. When appropriate, the government

may make its arguments ex parte and in camera. 10 U.S.C. § 949d(c)(3);

R.M.C. 806(b)(2)(C). The commission, as necessary, should file a classified

appendix to it ruling explaining what cannot be said on the public record. If

taking some or all of the unclassified testimony in a closed session is supported

15 Nothing in the record before the commission indicates that The Interpreter lacked the

abi l i ty, t ra in ing, or knowledge necessary to d is t inguish between class if ied and unclass if ied

information. More important ly, there are no factual f indings in the Closure Order to suppor t

the commission’s conclusory f inding about the In terpreter . See United States v . Terry , 52

M.J. 574, 578 (N.M. Ct. Cr im. App. 1999) (noting that s ta tement about adverse impact of

open cour t on sexual assaul t v ic t im tes t imony “may generally be true, but i t was not based on

any facts about the specif ic witness in th is case”) .

25

by a competent factual record and a proper closure order, then that is what the

law requires.

We must jealously guard the “fundamental protection[],” Hamdan , 548

U.S. at 624, and the “indispensable” “judicial guarantees” of the accused’s

right to a public trial , id. at 632 (citation omitted). Our ruling today does this.

D. There are no other adequate means to obtain the relief

sought

The relief sought is for the Interpreter to provide unclassified testimony

in public. Pet’r Br. 13-14. The government argues that the commission

correctly ruled that the qualified right to public testimony is satisfied if the

Interpreter first testifies in a closed session and then the government releases a

redacted transcript that excludes information that the government has

determined to be classified. See Resp’t Br. 13. The government further argues

that even if the Closure Order “is found to have violated Petit ioner’s public trial

rights,” petitioner may challenge it in an appeal of any conviction. Id. at 10.

This, the government contends, is an adequate alternative means to obtain the

relief petitioner seeks in the instant case and thus the petit ion for mandamus

should be denied. Resp’t Br. 10. We disagree.

Petitioner has no interlocutory appellate rights under the Military

Commission Act of 2009, 10 U.S.C. § 948a et seq. Thus, we may review the

Closure Order only through our post-conviction appellate jurisdiction, 10 U.S.C.

§ 950f(c), or our mandamus jurisdiction, see Al-Nashiri , 791 F.3d at 75-76. We

therefore must examine whether a post-conviction appeal, if it occurs, provides

an adequate remedy. To address this issue, we must identify what, if anything,

is lost by delaying resolution of petit ioner’s objection to a closed hearing and

determine whether such loss is a “trivial” breach of petitioner’s qualified right

to have unclassified testimony taken in public. “A courtroom closing is ‘trivial’

if i t does not implicate the ‘values served by the Sixth Amendment’ as set forth

in Waller .” United States v. Perry , 479 F.3d 885, 890 (D.C. Cir. 2007) (citation

omitted).

The core value regarding the hearing at issue is the maintenance of

“[p]ublic confidence in and respect for the” 9/11 prosecution. Criden , 675 F.2d

at 556; see Press-Enter. I , 464 U.S. at 508 (stating openness fosters “public

confidence in the system”); Richmond Newspapers , 448 U.S. at 572 (“strong

confidence in judicial remedies is [never] secured . . . by a system of secrecy”

(citation omitted)); Sherman v. United States , 356 U.S. 369, 380 (1958)

(Frankfurter, J. , concurring in result) (“Public confidence in the fair and

honorable administration of justice . . . is the transcending value at state.”).

The public’s confidence is at risk in the face of an accusation that the

Interpreter was a government “asset” in the defense camp and was used to

compromise privileged and other protected information that belongs to

26

petitioner, his co-defendants, and their counsel. The defense’s contentions may

be groundless, as the government claims. If so, this determination and public

confidence stil l will be impaired if more of the Interpreter’s testimony than

absolutely necessary is taken in a closed session and then released only to the

extent that the government deems it not classified.

While not directly on point, the law concerning the right to use mandamus

to prevent the release of privileged testimony is instructive. The courts in these

cases point to the loss of control over the information once made public. You

cannot un-ring the bell . See, e.g., In re Kellogg Brown & Root, Inc., 756 F.3d

754, 761 (D.C. Cir. 2014) (stating “the cat is out of the bag” (citation omitted));

United States v. Prevezon Holdings Ltd . , 839 F.3d 227, 237 (2d Cir. 2016)

(“cannot unsay the confidential information that has been revealed” (citation

omitted)); In re Roman Cath. Diocese of Albany , 745 F.3d 30, 36 (2d Cir. 2014)

(per curiam) (“Once the ‘cat is out of the bag,’ the right against disclosure

cannot later be vindicated.” (citation omitted)).

Here, improperly requiring the Interpreter to testify in a closed session

and then releasing a transcript as redacted by the government will likely leave

lingering doubts in the public’s mind that the classified redactions conceal

government misconduct. Correcting this years later will not eradicate this

skepticism. The point is, the Closure Order as it now stands can erode public

confidence in the commission proceedings—in direct contradiction of the

“societal interests” and “values” that openness supports. Criden , 675 F.2d at

556; Press-Enter. I , 464 U.S. at 508, 510. As stated by the Fifth Circuit ,

The right to a public trial does not turn on whether the inquiry of a

hearing is factual or doctrinal, substantive or procedural, but on the

relationship of the issue raised at the hearing to the merits of the charge,

the outcome of the prosecution, and the integrity of the administration of

justice .

Rovinsky , 722 F.2d at 201(emphasis added).

Moreover, the potential to impair public confidence in the 9/11

prosecution cannot be “un-rung” after any conviction by retaking the

Interpreter’s testimony pursuant to a proper closure order. Cf., e.g., In re

Kellogg , 756 F.3d at 761 (stating release of confidential documents cannot be

undone). The charge sheet in the current 9/11 case is dated May 31, 2011.

Thus, the prosecution has been pending for more than eight years, with no trial

date in sight. Even if petitioner is convicted and appeals, any determination

that the Closure Order is proper or improper is many more years away. In the

meantime, there will be questions but no proper closure order to justify why a

closed session was necessary for the taking of the Interpreter’s entire testimony.

27

The circumstances before us, thus, are unlike familiar ones found in

typical cases such as where a new suppression hearing is ordered, for three

reasons. First , and by way of example, in Waller , the trial was in 1982. 467

U.S. at 41. The suppression hearing was wrongly closed that same year. Id.

Less than two years later, in 1984, the Supreme Court reversed the closure order

and remanded the case to the trial court. Id. at 50. That t imeline is exceeded by

more than six years as of today and petitioner’s case is just in the pre-trial

phase so far. Second, the defense concern about the Interpreter being a

government “asset” who has compromised their privileged and confidential

information is more serious than addressing an allegedly illegal search in

violation of the Fourth Amendment. Quite often an illegal search is

spontaneous, occurring, for example, at the time of arrest. If the Interpreter was

working for the government and directed to invade petitioner’s attorney-client

confidentiality and protected work product, this would be a calculated act of

grave concern. Moreover, this government “asset” allegation is more serious

because, if true, it would involve a grave compromise of the adversarial system

of adjudication. Third, the 9/11 prosecution is of national and international

significance. There remains, as it should, a keen public and media interest in

this prosecution, notwithstanding that we are approaching the attack’s

eighteenth anniversary.

Ensuring that all who wish to observe the commission proceedings can

see, to the fullest extent possible, that the dispute involving the Interpreter is

resolved in a fair manner serves important “societal interests” and “values.”

See Criden , 675 F.2d at 556; Press-Enter. I , 464 U.S. at 508, 510. These

interests and values cannot be sustained if petitioner must wait years before he

can contest the Closure Order. Additionally, and as the government

acknowledges, petitioner can only contest the order as violating his right to a

public trial if he is convicted. See Pet’r Br. 9-10. Accordingly, if the Closure

Order is improper, it is not a “trivial” breach of petitioner’s rights. See Perry ,

479 F.3d at 890.

This is not to say we have decided that there is no basis to proceed as

argued by the government and approved by the commission. Rather, we cannot

decide because thus far the commission has not found sufficient facts on the

record to support taking the Interpreter’s entire testimony in a closed session,

followed by release of a redacted, unclassified transcript of the proceeding. 16

16 As a cour t of review, we look to the commission to f irs t address factual issues that under l ie

the appropr ia teness of the Closure Order . Fur ther , we ordinar i ly should conf ine ourselves to

the record before the commission in resolving factual issues before us . See FW/PBS, Inc. v .

Ci ty o f Dallas , 493 U.S. 215, 235 (1990) (rejecting considerat ion of document because i t was

“not in the record of the proceedings below” (quot ing Adickes v. S .H. Kress & Co. , 398 U.S.

144, 157 n.16 (1970))) , abrogated in part on other grounds by City o f Li t t le ton v. Z .J . Gif ts

D-4, L .L.C. , 541 U.S. 774, 781 (2004). Thus, we decl ine to consider the government’s ex

par te c lass if ied aff idavit ( f i led April 12 , 2019) and class if ied addendum (f i led with i ts

opposi t ion br ief) to the extent that they contain facts that were not before the commission.

28

We conclude that a challenge to the Closure Order in any post-conviction

appeal years from now does not provide petitioner with “other adequate means”

to obtain the remedy that he seeks. Al-Nashiri , 791 F.3d at 78 (quoting Cheney ,

542 U.S. at 380). Our holding in this regard considers more than simple delay.

It is predicated upon the unique facts before us, the serious issues that the

Interpreter’s testimony may clarify, and the importance of maintaining “[p]ublic

confidence in the” commission case. Criden , 675 F.2d at 556; see Press-Enter.

I , 464 U.S. at 508; Richmond Newspapers , 448 U.S. at 572; Sherman , 356 U.S.

at 380.

E. It is appropriate under the circumstances to issue the writ

The final step in our analysis is to determine whether, in the exercise of

our discretion, issuance of a writ of mandamus “is appropriate under the

circumstances.” Cheney , 542 U.S. at 381, cited in Al-Nashiri , 791 F.3d at 78.

We find that it is.

Protecting “the integrity of the administration of justice,” Rovinsky 722

F.2d at 201, is a fundamental reason that trials shall be public, see Sherman , 356

U.S. at 380 (recognizing court’s duty to protect integrity of judicial process).

Therefore, the Interpreter’s unclassified testimony is required to be taken in a

public session unless the military judge: (1) finds that closure is required to

protect a higher interest and tailors a narrow order that sufficiently limits

closure to protecting that higher interest; (2) considers reasonable alternatives

to closure and explains why each is inadequate, and (3) makes factual findings

justifying any closure, which are (i) “specific enough” for an appellate court to

review the appropriateness of the order, (ii) not conclusory, and (iii) based on

the “substantial probability” standard. The justification for closure should be in

a publicly docketed order to the fullest extent possible. That which cannot be

said publicly should be in a classified appendix available for a reviewing court.

As we have explained, the Closure Order before us is deficient with

respect to each of these criteria. Thus, petitioner has been denied his right to a

public trial and to a public explanation, to the extent possible, that adequately

explains why the hearing for taking the Interpreter’s unclassified testimony

must be closed.

“[A]ny closure . . . over the objections of the accused must meet the tests

set out in Press-Enterprise [II, 478 U.S. at 13-14] and its predecessors.”

Waller , 467 U.S. at 47. The failure to comply with the Press-Enterprise II test

is an error of law and a clear abuse of the commission’s discretion. See Ortiz ,

66 M.J. at 339. Ortiz addressed this very issue and reached these very

conclusions where a military judge improperly closed the courtroom before

hearing the testimony of a child sexual assault victim. Id.

Those facts may be presented to the commission on remand, and pet i t ioner’s r ights to

chal lenge the government’s contentions are preserved.

29

The Court of Appeals for the Armed Forces said, “The military judge in

this case failed to correctly apply the legal test necessary to overcome the

presumption in favor of a public trial. Consequently, the denial of the right to a

public trial was an abuse of discretion.” Id. at 339. The court continued,

stating that

the military judge never affirmatively, either orally or in a written

addendum to the record, articulated findings as to why she deemed closure

to be necessary . . . [T]his Court . . . requires that a military judge make

some findings from which an appellate court can assess whether the

decision to close the courtroom was within the military judge’s discretion.

Id. at 339-40. The court added:

On the current state of the record we have no way of knowing the military

judge’s reasons or reasoning for closing the courtroom. This makes it

impossible to determine whether the military judge properly balanced the

[] interest asserted by the Government . . . against the accused’s right to

public trial , or substituted another interest . . . in place of the one []

asserted by the Government.

Id. at 340. These statements by the Court of Appeals for the Armed Forces are

just as applicable here. On the commission record before us, the military judge

clearly abused his discretion in entering the Closure Order. This “clear abuse of

discretion will justify the invocation of th[e] extraordinary remedy” of

mandamus. Cheney, 542 U.S. at 380 (citations omitted).

If there is no need or adequate justification to take the Interpreter’s entire

testimony in a closed session, then the release of a transcript of the unclassified

testimony from the closed session is not a proper substitute for what should

have been an open session. This is particularly so when there are allegations of

government misconduct, see, e.g., Waller , 467 U.S. at 47, and the government

will determine what is publicly released. Waiting for years to address whether

the Closure Order is improper is not an “adequate means” for petitioner “to

attain the relief he desires.” Al-Nashiri , 791 F.3d at 78 (quoting Cheney , 542

U.S. at 380).

In our view, of equal importance is a real danger that the improper

Closure Order will erode public confidence in the prosecution below. Press-

Enter. I , 464 U.S. at 508; see Richmond Newspapers , 448 U.S. at 572; Criden ,

675 F.2d at 556, by permitting something important to take place behind closed

doors that either should be public or justified by a proper closure order. In the

current posture, neither petitioner, nor the public, nor this Court can reach a

judgment regarding whether closing all of the Interpreter’s testimony is

appropriate. “Any step that withdraws an element of the judicial process from

public view makes the ensuing decision look more like a fiat and requires

30

rigorous justification.” Hicklin Eng’g, L.C. v. Bartell & R.J. Bartell & Assocs. ,

439 F.3d 346, 348 (7th Cir.2006). Here, that rigorous justification is lacking.

In these circumstances, issuance of the writ is appropriate. Indeed, we

find it is required.

V. Conclusion

Petitioner’s writ of mandamus is granted and the Closure Order is

vacated. We return this matter to the commission to reassess the need to take

the entirety of the Interpreter’s unclassified testimony in a closed session. If

there is a need to enter a closure order, it should be done in conformity with the

requirements set forth in this opinion. 17

The matter before us is remanded to the commission for further

proceedings in conformity with this Opinion. The stay of the Interpreter’s

testimony is dissolved.

FOR THE COURT:

17 On remand, the commission should reassess the adequacy of the supplemental Closure

Order (AE 616V) entered on May 1 , 2019.