Reporters face unusual limits at Padilla terror trial

Sometimes working as a news reporter covering a major terrorism trial comes with a few surprises.

Security is extraordinarily tight at the trial of alleged Al Qaeda operative Jose Padilla and two codefendants. This is no surprise. US marshals have flown here to Miami from across the country to help ensure that the trial is conducted without threat or incident.

But court security officers are enforcing an unusual rule for the trial, which is set to get under way with opening statements Monday. They are prepared to prevent members of the media from asking questions of defense lawyers or federal prosecutors at the trial.

In effect, newspaper, radio, and television reporters are being granted observer status – they may sit quietly, watch the trial, and take notes. But if during a court recess they approach a defense lawyer or prosecutor in the courtroom with a question, they risk being whisked away by security officials.

The ban on media questions also extends to the lobby outside US District Judge Marcia Cooke's courtroom and chambers.

If reporters need to ask questions for clarification or routine housekeeping matters during the trial, they must ask their questions somewhere else.

I learned about this rule the hard way. During a recent five-minute recess during jury selection, I approached one of the prosecutors and asked who at the US Attorney's Office was handling questions from the press.

He gave me the name of a spokesperson and a telephone number. When I lifted my notebook to jot these down, a court security officer confronted me. He accused me of conducting an interview and asked me to step out of the courtroom.

I told him that I'd merely asked a question, but added that I'd never heard of a rule barring news reporters from asking questions, or even from conducting brief interviews in a courtroom at a public trial at a time when both the judge and jury were not in the courtroom.

Having covered scores of hearings and trials in the federal courts as a journalist, I am well acquainted with courtroom etiquette. But I have never heard of courtroom officials barring reporters from asking routine questions.

Neither has Associated Press correspondent Curt Anderson, who has covered the Padilla case closer than any other reporter. "I don't know of such a rule," he said in an e-mail. "I haven't had any problem talking with the various lawyers anywhere in the courthouse or outside, even in the courtroom itself during breaks."

Jay Weaver of the Miami Herald also says he is unaware of such a rule against journalist questions. "I would like to know what the ground rules are. It is going to come up," he says.

Unlike most trials in federal court, the Padilla trial poses extraordinary challenges to members of the media. It involves a large volume of classified information and a significant portion of the pretrial litigation has taken place in closed hearings that have excluded members of the public and press.

The secrecy is in complete accord with the Classified Information Procedures Act. But for journalists trying to get a handle on the likely turning points in a trial, it is a bit like painting a picture of an iceberg from a seat in an airplane. Most of the substance is hidden from view. That makes fulfilling the media's watchdog role problematic.

Judge Cooke has not issued a formal rule barring the press from asking questions, according to members of her staff. But, they say, she supports the unwritten rule being enforced by the court security officer.

Media interviews conducted in the courtroom – even during recesses – are disruptive and distracting, they say. Interviews conducted in the lobby outside the courtroom might be overheard by jurors or witnesses and taint the trial.

"We are not keeping you from talking to anybody, you just cannot do it on this floor," says Tamara "Tammy" McIntyre, an assistant to Cooke. "We are all for freedom of speech and for you getting whatever story you can, but there have to be boundaries to protect the rights of these defendants."

Legal experts say the judge clearly has the authority to create and enforce rules to protect the integrity of a trial.

Courtroom decorum orders are fairly routine, says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. But such orders must come from the judge, not from courtroom officials enforcing an unwritten rule, she says.

"In general, there has to be a reason for it, and it has to be on the record, and it has to be reasonable," Ms. Dalglish says. "It can't be more invasive of your First Amendment right to speak to people than is absolutely necessary to maintain order in the courthouse."

Eugene Volokh, a professor at UCLA law school and founder of the law blog The Volokh Conspiracy, says the key test is whether the restrictions are reasonable.

"The big picture is that the courthouse is government property and a wide range of restrictions are permissible on government property that wouldn't be permissible elsewhere," he says.

"There have been occasional cases where the [US Supreme Court] has said that even in government buildings certain kinds of restrictions are just so broad as to be unreasonable," Professor Volokh says. "My suspicion is that at least as to the concern about jurors overhearing something, that is a plausible enough concern that at the very least the restriction would not be considered unreasonable."