Brooklyn judge balances security concerns, press freedom in al-Qaeda terrorism trial
A Brooklyn federal judge told courtroom sketch artists to omit the agents’ faces in trial drawings so that Foreign Secret Service agents can maintain their undercover identities in an open courtroom.
A group of undercover agents from the British security services, commonly known as MI-5, are scheduled to testify in the trial of Abid Naseer, a Pakistani defendant suspected of providing material support to the terrorist group al-Qaeda and, in particular, conspiring to use a bomb in relation to a crime of violence.
According to federal prosecutors in Naseer’s trial, the agents’ identities are of a secret nature and require special treatment to protect their identities. The Eastern District federal attorneys petitioned Judge Raymond Dearie, seeking an order to preclude courtroom sketch artists from sketching the MI-5 agents during their trial testimony.
In an oral ruling from the bench on Monday, Dearie partially granted and partially denied the prosecutor’s request. The judge told the sketch artists present that they were allowed to continue to sketch the trial and may draw the MI-5 agents so long as the faces are omitted, with a “blank face” substituting, and presented with “generic hair.”
Dearie’s ruling delicately balances open access to the courts and security matters in terrorism trials.
The government asserted in its petition to preclude that the MI-5 agents “were the sole witnesses to many of the operational activities undertaken by the defendant [Naseer] in preparation for his plan to conduct an al-Qaeda attack…” and further, that all five agents “continue to work in an undercover capacity on other sensitive investigations, many of which involve national security matters and threats against the United Kingdom.”
Due to these security concerns, federal prosecutors argued, courtroom sketch artists should be prohibited from drawing the agents.
As the New York Law Journal noted, Naseer — who is defending himself — and his trial have generated “media attention as well as a number of courtroom sketches,” including a few reproduced in this publication.
“The press is seen by courts as a tool for greater good, for public access to trials,” William Araiza, a constitutional law professor at Brooklyn Law School, explained to the Brooklyn Daily Eagle.
But even the public’s interest in open courts and the constitutional protection of the freedom of the press have their restrictions, the government contended in its petition.
“The First Amendment protects the right of the press to attend trial proceedings … [h]owever, the rights of the public and the press are not absolute, and not without bounds,” the Brooklyn prosecutors asserted.
Exposing the MI-5 agents’ identities, the government contended, would put not only the agents at risk, but also national and international security interests as well.
The government has a “substantial interest” in protecting the effectiveness of undercover operations, especially where “the undercover officers work on highly sensitive national security investigations into groups that are bent on causing harm to both the United States and the United Kingdom, such as al-Qaeda.”
The agents, the government noted, would appear in court in light disguises including wigs and light makeup and would testify under identification numbers rather than their names.
But even with this base-level disguise, “public disclosure of the identities of these officers, even by way of sketches, would impair their ability to operate effectively within the Security Service in the future,” the government said.
Open Courtroom, Limited Right to Sketch
In reaching his determination, Dearie pointed to the fact that the government had not asked for the courtroom to be closed during the trial and had not applied to have the witnesses testify behind screens — evidencing the government’s own attempt to balance the public interest with national security concerns. This is “a grave, very serious matter,” Dearie said from the bench Monday after meeting with government lawyers, in camera, on the related issues of security concerns.
As reported in the New York Law Journal, John Marzulli, a reporter with the New York Daily News covering the Eastern District, told Dearie there was a precedent to blurring a witness’ face in a courtroom sketch. Marzulli submitted courtroom sketches from the Naseer trial and said they were “simply not a photographic likeness.” Marzulli noted that Dearie himself was depicted in the sketches — but that would not lead to someone identifying Dearie “on the street.”
Sketch artists attending Monday’s hearing on the petition to preclude — Christine Cornell and Jane Rosenberg — agreed with Dearie’s conditions to obscure their sketches of the MI-5 agents, and further agreed to have prosecutors review the artists’ drawings before they leave the courtroom. Members of the British press were also in the courtroom.
While Dearie’s ruling does not block members of the press from sketching drawings of the trial, some view the limitations as the beginning of a slippery slope of restrictions placed on the rights of the press.
“The courtroom is the judge’s house, and I respect the rules,” Alba Acevedo, a media sketch artist who sometimes provides courtroom sketches for this
publication, told the Eagle. “I always ask permission before I begin sketching, but it sends a chill down my spine to think that this freedom and service to the public should be so compromised by this ruling.”
Precedent shows that a judge has some level of discretion over the activities in his or her courtroom. In prior cases, courts have ruled that a “judge can place restrictions on parties, jurors, lawyers and others involved with the proceedings, despite the fact that such restrictions might affect First Amendment considerations.”
However, sketch artists view their job as essential to the public good and interest.
“The reason I came to court in the first place is that I feel more of the public should bear witness to the process and, for want of a better phrase, the human drama of trials, and that includes the countenance on the witnesses that are captured by this sketch artist during proceedings,” Acevedo said.
“Until someone brings a suit of sorts to clearly delineate the limits to freedom of the press as it relates to sketch artists, as a courtroom sketch artist I will continue to be on alert and concerned about the slippery slope of judicial discretion that could further limit our rights,” Acevedo concluded.
If convicted, Naseer faces life in prison. Although he is representing himself, Naseer’s legal adviser is James Neuman of Manhattan. Assistant U.S. Attorneys Zainab Ahmad, Celia Cohen and Michael Canty are handling the prosecution for the Eastern District.
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