and i don't think it's a criminal proceeding it's a it's a military tribunal of an enemy combatant while the war is still going on and i guess bike my question is let's assume that we get past the procedural stuff and we have to decide whether there is a qualified st amendment right here so we're kind of not as far to the end of the analysis as deciding how we would apply a qualified st amendment right narrow tailoring it cetera but we are past the procedural stuff is there a qualified st amendment right for a member of the public to watch a military tribunal as an enemy combatant while the war is still going on and the answer to that has to be an inquiry into history and experience and in the revolutionary war we had such tribunals and my understanding is they weren't open to the public injured jackson had such tribunals my understanding is they were open to the public and world war two we had such tribunals and my understanding is they weren't open to the public so i guess my question to you is during that time frame one hundred and seventy years or so the st one hundred and seventy years of the country do you know of many examples that you can give us where a military tribunal of an enemy combatant for an enemy combatant during the war  where a court held that a member of the public has a st amendment right to watch that even if it's unclassified a st amendment right to watch is d your honor i would submit two things on that issue the st is that the closest analogy of what is other military criminal other military tribunals proceedings such as courts martial and courts mar far as other other military commissions i believe that exact civil war military commissions were ok i don't know of any indication that they were closed now granted this court and the supreme court have acknowledged that there are differences subject matter differences to some degree with civil war commissions  i can ask some questions about what you just said that the civil war commissions would not have been foreign enemy combatants they would have been american citizens and that seems like a difference but in addition if you're talking about the boo in the andersonville war crimes trials those happened after the war had and i know there were some during the war but can you talk to me about about them and also why the distinction between cosi being a foreigner commissions whatever they may be can result in a death sentence so whether or not they're technically criminal proceedings they certainly know terri's proceedings have always been reviewed have criminal proceedings due process review standard is that of a criminal proceeding to this court has a knowledge that the military commissions here because they said most of them are dea eligible proceedings are subject to the appropriate standard of review for a deaf eligible proceeded mr sandell i'm not sure that i agree with you that the same due process rights the exact same due process rights that apply to federal criminal trial also apply in a military tribunal of an enemy combatant or an enemy combatant while the war is to learn on but even if they do we're not talking about that the defendant's due process rights we're talking about the public's pursed amendment right to watch and i can think of when i come in at that yes place yes place i happen to agree with the line of questioning my new colleague policy and you're purporting to be a member of the public but you're not a member of the public you're indeed a government lawyer if you were right that any government woman lawyer could step out of his or his or her government position and sue the government as a member of the public in a situation like this then any warrior in the national security division could be quarreling could be in court challenging the national security division justice department could appear in this court a spilling of the right as a member of the public challenging the justice department right made a speech on a certain subject then that would be a question of st amendment protection and that sort of practical commendations may well you're not doing that you skilling is a member of the public the government for my st amendment right to attend but if that's true any lawyer in the justice department all the lawyers in the justice department could come in challenging the position of the national security  grounds that they're members of the public eye i think that is correct america in their individual capacity and under their st amendment rights of members of the public yes i think that is right that it could i do not believe that might that the rely on the public's st amendment rights why are you bringing why are you bringing this case what's the reason i'm sorry is is there a back story there is not a back story i i had an interest in attending the proceedings and i sought to attend and i was told that i was not allowed to attend and i  of my constitutional right to attend public proceedings the government has has always treated military commissions in general and these proceedings specifically ads public there were there were media advisories there's there's there's there's a transmission of the of these hearings to remote viewing locations in the united states so i don't believe that the the supreme court looks to the nature of the proceeding to determine if there is a public rights to attend it does not look to the type of evidence that is being presented except with respect to whether there is a compelling goes hand in hand with the other if there is a right to attend been the case law is crystal clear that there must be a mechanism to challenge a quote usual if there is no right to it and that for example is it not a public proceeding or if you are not a member of the public and with respect to member of the public if i could just briefly say that the military commission rules of procedure just like the rules of courts martial procedure define member of the public quite broadly and in fact the courts martial rules of procedure which the court below c m c are in a different case having knowledge identical to the military commission rules basically say even government employees specifically states even government employees are members of the public so as far as the procedure is relevant special status as a member of the public to to have access to the closed portions of this hearing which even the public is not entitled to not exactly  know the argument that the the potential respondent was what had the burden of demonstrating a substantial probability of home to its its compelling interest and with respect to the judge's determination of substantial probability of harm a relevant consideration for the judge is that respondent has it's well said on numerous occasions over the last ten years that petitioner does not represent a risk to national security and in fact the tensioners access to national security information is entirely consistent with national security interests it's not that the clearance gives anyone a special status it's the fact that the government has repeatedly made the risk determination even favor of responded that was a relevant consideration with respect to determining if the respondent had carried its burden of showing substantial probability of harm to their response and could of point theoretically could have pointed to a whole bunch of  to demonstrate substantial probability of harm it pointed exclusively to need to know which is irrelevant because that the generic unspecified rect it in response to the respondent seeking to close attention or said i am not a risk and one of the things that you should consider in determining if i am a risk is the respondents only view that i am not a states as the house questions suggest there's an income group here between what mr sundial claims which is a st amendment right to attend and the fact that he he only has this right  his in his view because of a security clearance he has as a government employee and under this court's precedent indeed the a classified hearing can be closed to the public and once a hearing is closed to the public there is no st amendment right of attendance mr sunday will is advancing the argument that the government has to demonstrate you know over a strict scrutiny standard that each individual person who wishes to attend is a security risk and that is never been the standard it's not a workable standard and it's a standard that's entirely inconsistent with national security under that legal rule anyone that the government perhaps mistakenly not in this case but perhaps in another case the government mistakenly clear someone like edward snowden that person could go around to every court and get every classified transcripts get every classified file playing and do whatever he wanted with it and that is a huge risk that is why the appellant this case has preventable standing if he does have credentials standing than any of your colleagues in the national security division or could bring the same case against you and against the policy of the government yes i think that's right i mean i think anyone who can attempted to claim that which is the other way i've phrasing that is prudential standing do you believe he lacks credentials standing to sue as a member of the public because  merits question that the court should only reach assuming that it finds jurisdiction and there is no jurisdiction here for other reasons i'm not sure how if that's a satisfactory answer but i'm not sure that i can answer it beyond th understand his position that any lawyer in your division could take the same position as he's taken attacking europe your representation and the policy of the government you question i agree raising we're talking about credentials thing i'm not asking whether he has gender in fact course he has injury in fact because you have to assume the merits on that but potential standing asked the question is this individual entitle the right to make this claim and you have to consider if that's true then any lawyer in the justice department could have raised the same claim challenging the guss justice department's position you understand that yes i do and you think he has standing such a lawyer would have standing to do that i think it's that there are few cases one constitutional standing but it seems to me this falls within that category the question is whether a lawyer in the justice department or defense department can challenge government policy with respect to closing the hearing notwithstanding the government is taking an opposite position what happened heathrow's i think and i hope and can take care of that i don't i guess it's debatable whether it is a matter of course or i'm sorry my connection is sorry your honor we can hear you now ok but i would just like to point out that there's another there are two other jurisdictional problems in this case one is that this doesn't fall within the statute grants this court with jurisdiction only over final judgments issued by a military commission and approved by the convening authority and and further restricts the courtroom you to the findings and sentence of the of the military commission it's clear from the text and the context that this is a reference to military commission convictions that's what the court is granted jurisdiction over by congress and the if and in a case i see my time is almost up this case this court doesn't have jurisdiction under nine hundred and fifty g b doesn't have appellate jurisdiction and this case is also not right for reasons that  we put in our brief so if the court doesn't have any questions on that i would stand on our arguments in our brief and ask that the court dismissed the petition all right if there are no more questions than mr sunday why don't you judgments judges make decisions all the time that are not judgments and congress made a choice to not use the word decision but to use that much narrower or narrow word judgement and nine g so i'm assuming that i don't think we should read judgment to mean decision is there a way for  you just to still win to still had jurisdiction here why should we think of what happened to you as a judgment because the  after the convening authority approves it but it doesn't explain why congress chose to use the word judgment instead of the word decision you're asking us to bind congressional intent but i'm asking you w usually the text is our guide to intent why is our why is the text not the guide to intent here and we agree that the text is the guide and that the text clearly demonstrates congress's desire for military commission a review to be funneled into this court there's really no question that congress did not want district courts and other circuits reviewing the judgment of military commissions and that is what would case in a military commission or a court martial in normally you're looking at a criminal proceeding that would be the but all that language recognizes it's like administrative board decisions that are  final until the secretary approves them such is the case with military court martial and commission judgment they're not in fact final until the convening they go through the convening authority so the statute does that language doesn't have anything to the process it doesn't add a separate requirement it simply highlights that that is in fact what the statute means by final otherwise there could be confusion for anyone who's not familiar with the military process for finality so and if i could just very very briefly touch on a couple of things federal defenders always frequently file in opposition to the government that is that's that's a necessity of their independent role oh my whole sense you're like a public defender right played by the government certainly if you  is a much greater opportunity for the government to restrict the act of personal activities of a lawyer whose job it is to represent the government as opposed to a lawyer whose job it is to oppose the government so if if there is if there's a need to distinguish what with other government lawyers who should not be allowed to pursue this sort of a claim that is certainly a recognized extension i only technically work for the government my job in fact is to oppose and if there is any need for not distinction to carry over into a st amendment right it certainly show  was a civil case and it itself recognized that national security concerns national security act with ease and the that the need to close proceedings or to exclude evidence know you know you're now you're saying you really don't have a public right you have some kind of governmental function that no difference well i'm no no your honor but if that's what it sounded like i'm sorry but i misspoke all i'm saying is that if if some aspect of government employee employment infringe on the st amendment right to attend as a member of the public then there would be a distinction with government employees could job it is to oppose the government as opposed to represent the government i am not i'm not conceding i realize i've gone way past my time i thank the court and if there are no other questions able questions i know i think you generally go ahead