By now it is all but certain that the military detention center at Guantanamo Bay, Cuba will be shuttered by the end of the year. It's still unclear what happens to the people housed there. As President Obama and his administration grapple with the complexities involved in bringing what have been termed "the worst of the worst" to justice, those most affected by terrorism—victims and their families—have sought to ensure that their voices be heard.

To this end, on September 11, 2009, Judea Pearl published an open letter to Attorney General Holder, laying out some of the opinions which he had previously shared with the President's Task Force on the closing of Guantanamo Bay. As the father of Daniel Pearl, the Wall Street Journal reporter who was brutally murdered in Pakistan in 2002, Pearl's unique perspective is representative of the fears of all those who have been personally affected by terrorism. Whether it be prosecuting those still housed in Guantanamo or the future perpetrators of terrorist acts, it's important that we get the next part right—and Mr. Pearl presents a useful starting point for that discussion.

Pearl begins by calling on the government to reassert that "America is still committed to the war on terror, and that this war includes not just active combatants or members of recognized terrorist organizations, but the ideology of terror itself."

Pearl recommends considering a new legal paradigm for dealing with these individuals. The Department of Defense could transfer all current and future inmates into federal custody for purposes of trying them in criminal courts. Alternatively, the DoD could continue to exercise jurisdiction over the detainees and prosecute them in either a revised Military Commission system or traditional courts martial. Finally, the government could consider employing the type of "national security court" proposed by Neal Katyal and Jack Goldsmith.

Pearl's primary concern is that indicted terrorists would use their trials as a "bully pulpit" to preach their message of hate against the West in an attempt to encourage others to commit more terrorist attacks. To curb such abuses, he suggests that all terrorism-related trials be sealed. The effect of such a policy would be to "make it clear to every would-be terrorist that, if captured, he will go down the path of total oblivion to the extent allowed by law."

Although no federal court has been asked to consider whether there is a public right of access to proceedings in military tribunals, it is well settled law that federal prosecutions and courts martial must remain open absent a finding that closure is "essential to preserve higher values and is narrowly tailored to serve that interest." Consequently, while earlier domestic terrorism cases—most notably those of Timothy McVeigh and the 1993 World Trade Center bombing cases—were open to the public, since the September 11 attacks, judges have routinely closed their courtrooms and sealed evidence in response to "national security concerns."

Preventing terrorists from using public trials as a means of inciting further violence is certainly a compelling government interest. Whether the government chooses to push for a blanket policy that all terrorism-related cases be sealed or a case-by-case determination on the threat presented by the defendant, the historical right of access to public trials must be reconsidered in light of the new challenges we face.

Read Pearl's full essay here.