Public Right of Access to America’s War on Terror

Abstract

The saga of Guantanamo Bay litigation continued into a new area of law earlier this year. In anopinion written by Judge Justin Walker, the United States Court of Appeals for the DC Circuitdismissed an attorney’s petition to observe a tribunal hearing of an Islamic terrorist. While JudgeWalker’s opinion ultimately dismissed the attorney’s petition, the opinion left open thepossibility that American citizens could demand access to Guantanamo hearings under the FirstAmendment. Lively debate exists over whether or not enemy combatants enjoy certainconstitutional rights. But regardless of whether a terrorist has a Sixth Amendment right to apublic trial, American citizens – under the original understanding of the First Amendment – havea qualified constitutional right to observe the hearings of enemy combatants.