Sealing the court

Posted: Monday, October 19, 2009

Judge Ricardo Urbina of the U.S. District Court for the District of Columbia has been holding closed-door hearings in the case of five Blackwater security contractors accused of gunning down unarmed Iraqi civilians. A reporter from The Post learned of the hearings, which appear not to have been listed on the public docket; Urbina declined the newspaper's request to lift the secrecy order.

As The Post's Del Quentin Wilber reported, Urbina explained that he needed to close the hearings to prevent witnesses and prospective jurors from getting wind of the information likely to arise in these hearings. The judge also said he was obligated to prevent public disclosure of secret grand jury testimony.

Urbina is conducting a weeklong pretrial hearing in which the government is being challenged to prove that the evidence used to indict the former Blackwater contractors was obtained independent of statements made by the men shortly after the 2007 shootings that left more than a dozen Iraqis civilians dead and nearly two dozen injured. Those statements were made to State Department agents who promised the guards that the statements would not be used to criminally prosecute them.

Urbina may be right that closing the courtroom may have been the only way to protect grand jury material. After all, one way for the government to prove it did not use the guard's immunized statements is to cite independent information gleaned from grand jury testimony. But it is not clear to what extent, if any, Urbina considered anything short of complete secrecy, such as closing off only parts of the hearing. Urbina indicated that he may consider allowing the release of redacted hearing transcripts. This would be a reasonable accommodation.

The judge, however, is on very shaky ground in claiming that a closure was necessary to shield witnesses and jurors, especially because well-established court procedures exist to deal with these possibilities. Witnesses called to testify at trial typically provide sworn statements before they are called to the stand. Either side may challenge a witness's credibility if there is a discrepancy between testimony and previous statements. And the jury selection process routinely is used to cull from the pool prospective members who have heard or read about the case.

Urbina also mishandled the process that led to the secrecy order. The Supreme Court has ruled that the public must be notified about a possible closure and given a chance to argue against it before a judge takes the drastic step of excluding the public from a criminal hearing. Notice was absent in this case. And while The Post was permitted a brief, 15-minute hearing before the first Blackwater matter was to commence, this is not the kind of deliberate and thorough review the justices contemplated.

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