February 15, 2018 / 9:55 PM / a year ago

N.Y. judge safeguards media access to Islamic State suspect’s trial

(Reuters) - If the allegations against Sajmir Alimehmeti prove to be true when he is tried in May, we should all give thanks to four undercover government investigators who gathered evidence of Alimehmeti’s allegiance to the Islamic State. U.S. District Judge Paul Engelmayer of Manhattan, who is presiding over the government’s prosecution of the 24-year-old Bronx resident, described the undercover operatives as “sophisticated professionals” who are safeguarding “important national security interests.” It is vital, Judge Engelmayer wrote in an opinion Thursday, to shield these undercover agents from exposure during Alimehmeti’s trial so they can continue to root out plots against this country.

But as the U.S. Supreme Court explained in 1995’s U.S. v. Doe, open access to criminal trials is a fundamental attribute of our justice system, enhancing both the perception and reality of fairness. “Free access of the press and public to criminal proceedings,” the justices said in Doe, “informs the populace of the workings of government and fosters more robust democratic debate.”

In the Alimehmeti case, Judge Engelmayer had to balance the government’s very tangible wish to protect its undercover operatives against the rather amorphous public interest in open access to the court. The judge ended up giving prosecutors most of the safeguards they asked for, but balked at barring all reporters from the courtroom during testimony from the undercover witnesses. At least one member of the court’s press corps will be allowed to observe that testimony, the judge ruled.

Engelmayer pointedly showed faith in the reporters who cover his court. “Members of this district’s press pool have historically respected the government’s interest in not revealing undercover officers’ identities,” the judge wrote. “This court has confidence that any reporter(s) whom this district’s press corps designates to serve as a pool reporter during the (undercover witnesses’) testimony at this trial will similarly respect this vital interest.”

The undercover witnesses, whose trial testimony is expected to last for more than a day, have quite a story to tell, based on the government’s allegations. According to prosecutors, two undercover officers befriended Alimehmeti over the course of several months in 2015. He allegedly played Islamic State videos for them, told them he wanted to go to Syria to join the group and displayed an Islamic State flag in his apartment. In 2016, an undercover FBI agent joined the operation, posing as an IS supporter who had been to a training camp in the desert. Alimehmeti was arrested in May 2016, after allegedly helping a fourth undercover agent prepare to travel to Syria to join IS. The agents taped their interactions with Alimehmeti without his knowledge.

Prosecutors asked for several accommodations to protect the undercover agents, including the use of private entrances to the courthouse and a prohibition on courtroom sketches of the witnesses. They also asked Judge Engelmayer to close the courtroom when the agents testified, proposing that the court set up a live audio feed of their testimony in a different room open to the public. Prosecutors said they would promptly provide unredacted transcripts of the agents’ testimony as well.

Two reporters, John Riley of Newsday and Katie Zavadski from the Daily Beast, spoke at a Jan. 2 hearing Judge Engelmayer convened to consider the government’s proposal to close the courtroom. Riley said the alternative of streaming audio in a different room would not allow journalists to report visual observations about the impact of the agents’ testimony. Zavadski said the government’s use of undercover agents is precisely why the Alimehmeti case is of great public interest. Both reporters suggested that, at a minimum, the judge allow one journalist to remain in the courtroom during the agents’ testimony to provide pool reports to the rest of the press corps. Prosecutors opposed the suggestion.

In Thursday’s opinion, Judge Engelmayer considered and discarded other ideas to protect the undercover operatives’ identities, like using disguises or a screen to hide their faces from public view. Such measures, he said, would raise questions for the jury and could lead to jurors drawing unfair inferences against Alimehmeti. The judge rejected as “unworkable, distracting and prejudicial” a government proposal that he – rather than a pool reporter – provide real-time, on-the-record commentary on trial participants’ reactions to the undercover witnesses.

The judge concluded that the pool reporter approach best balances the competing interests in protecting the witnesses and providing access to the trial. “The law, while requiring that closures be no greater than necessary, is supple enough to accommodate the vital interest in preserving (undercover agents’) anonymity,” he said.

It was gratifying to read Judge Engelmayer’s opinion. He regards the courthouse’s reporters as honorable professionals whose work enhances the justice system – and even public faith in the courts. It may not be popular in the Fake News era to discuss journalism as an instrument of this country’s principles. But happily, Judge Engelmayer gets it.

The views expressed in this article are not those of Reuters News.

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