IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
[filed June 6, 2001]UNITED STATES OF AMERICA, Plaintiff, v. Case No. CR 99-1417 JP WEN HO LEE, Defendant.
MEMORANDUM BRIEF IN SUPPORT OF MOTION TO INTERVENEThis Court has apologized to Dr. Wen Ho Lee ("Lee") for the manner in which his rights were violated in the course of his prosecution. However, the American public's rights continue to be violated, as a host of documents apparently remain sealed in violation of the public's common law and constitutional rights of access to preetrial documents. The continued sealing of these documents serves only to deepen suspicion about "the real reasons why the executive branch has done all of this," Reporter's Transcript of Plea Proceedings, 58:13-14 ("RT"), and denies the public important information relating to Lee's possible selective prosecution on the basis of his race and national origin.
AND UNSEAL, OR, IN THE ALTERNATIVE, PETITION FOR WRIT OF
MANDAMUS COMPELLING UNSEALING OF COURT RECORDS
[Table of Contents and Table of Authorities Deleted Here]
On behalf of the American public, which has a constitutional "right of access to criminal proceedings and documents filed therein," CBS, Inc. v. U.S. Dist. Court, 765 F.2d 823, 825 (9th Cir. 1985), Chinese for Affirmative Action ("CAA") now moves to unseal these records. Its motion should be granted because the order sealing these records did not meet the procedural and substantive requirements for denying access. Press-Enterprise Co. v. Superior Courts, 464 U.S. 501 (1984) ("Press Enterprise I") (vacating order closing pre-trial proceedings and sealing transcripts); U.S. v. Galloway, 937 F.2d 542 (10th Cir. 1991) (remanding where district court failed to adhere to mandatory sealing procedures); Associated Press v. U.S. Dist. Court, 705 F.2d 1143 (9th Cir. 1983) (reversing order sealing pretrial records). This motion also should be granted for the separate reason that the sealing orders violate the public's common law right to inspect judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Valley Broadcasting Co. v. U.S. Dist. Court, 798 F.2d 1289 (9th Cir. 1986). These rights cannot be sacrificed by the stipulation of the parties, nor by the government's mere assertion that sealing is required to protect national security. "The District Court cannot abdicate its responsibility to ... determine whether filings should be made available to the public. It certainly should not turn this function over to the parties ..." Procter & Gamble Co. v. Banker's Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). "[W]e are equally troubled by the notion that the judiciary should abdicate its decisionmaking responsibility to the executive branch whenever national security concerns are present." In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986) (vacating sealing order).
Accordingly, CAA respectfully requests that the Court immediately grant this motion, or, at a minimum, schedule a hearing on the important constitutional and common law issues presented here.
STANDINGCAA is an advocacy and service organization committed to the advancement of multiracial democracy in the United States and to the promotion of the civil and political rights of Asian Americans.1 The possibility that Lee was the victim of selective prosecution is a matter of great concern to CAA, and to the American public, which has a right to information that may shed light on whether the country's tax-supported national laboratories are singling out researchers for suspicion and investigation because of their race.2 Because CAA has learned that possibly exculpatory records concerning Lee's case remain under seal, and in light of news reports suggesting Lee may be subject to more questioning,3 CAA requests the immediate unsealing of all documents, or portions of documents, that do not truly threaten national security.
1 CAA is a 32-year-old, member-supported civil rights organization based in the San Francisco Bay Area. CAA serves Asian Americans and immigrants seeking employment opportunities, provides language support to minority students and parents in the public schools, and engages in local, state and national policy advocacy to advance the civil and political rights of our community. CAA has advocated on behalf of individuals who have been targeted for unfair treatment in employment, education and other aspects of public life, based upon racial stereotypes. CAA carefully monitored Lee's investigation and prosecution for over two years and continues to monitor and advocate around allegations of racial profiling by the Department of Energy. CAA was one of several amici curiae that filed a brief in support of the Lee's Motion for Discovery of Materials Related to Selective Prosecution, which was accepted by this Court.As the Supreme Court has held, all members of the public must be given a right to be heard on the question of their exclusion from court hearings and records, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982), and it is well-settled that non-party members of the public and press have standing to challenge the sealing of court hearings and records. Daines v. Harrison, 838 F. Supp. 1406, 1408 (D. Colo. 1993) (newspaper had standing to challenge sealing of settlement agreement); U.S. v. McVeigh, 918 F. Supp. 1452, 1456 (W.D. Okla. 1996) ("movants have standing to present these questions on behalf of themselves and the general public"); see also Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir. 1988 (public advocacy group had standing to challenge protective order in tobacco litigation).
2 In a recent episode that illustrates the continued urgency of this issue, the only Chinese-American member of Congress was recently denied entry to a Department of Energy facility by guards who stopped Congressman Wu to question him about his nationality, on his way to deliver remarks about the importance of Asian Pacific American Heritage Month. According to a DOE spokesperson, [they] were doing "'exactly what they are supposed to do'." McCall,Chinese-American Rep Denied Entry, The Washington Post, May 25, 2001, online edition (quoting Jeanne Lopatto).
3 See Pincus, Interrogation of Lee Raises New Questions, Sources Say, The Washington Post, Feb. 4, 2001, at A2.
It also is well-settled that an interested third party may bring its motion to unseal after the underlying proceedings have ended. Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (third party intervened after judicially approved settlement in order to challenge sealing), FDIC v. Ernst & Ernst, 677 F.2d 230, 231-32 (2nd Cir. 1982) (third party intervened to challenge stipulated confidentiality order two years after settlement); Mokhiber v. Davis, 537 A.2d 1 100, 1104-06 (D.C. Cir. 1988) (reporter permitted to intervene four years after a judicially-approved consent decree in order to challenge a protective order); Van Etten v. Bridgestone/Firestone, Inc., 117 F. Supp. 2d 1375 (S.D. Ga. 2000) (media intervened and compelled unsealing of records a year after settlement of a products liability case).
Accordingly, CAA has standing to bring this motion requesting that this Court vacate its sealing orders in this case.
STATEMENT OF FACTSOn December 10, 1999, the United States charged Lee with 59 counts of unlawfully gathering national defense information. The prosecution subsequently presented "information that was so extreme it convinced [the Court] that releasing [Lee], even under the most stringent of conditions, would be a danger to the safety of this nation." RT, 48:18-20. Then, on September 13, 2000, the prosecution suddenly dropped all but one minor count, which concerned the mishandling of computer data. As perplexed over the government's contradictory actions as the rest of the country, this Court made an apt observation: "I note that this has occurred shortly before the Executive Branch was to have produced, for my review in camera, a large volume of information that I previously ordered it to produce." RT, 50:7-10. The Court was referring to seven categories of documents relating to selective prosecution, including Department of Justice and Department of Energy memoranda discussing the targeting of Americans of Chinese ethnicity. Order of August 25, 2000.
The government may argue that there was no connection between its dropping of groundless charges and the deadline -- just two days away -- for disclosing these documents. However, this Court noted specifically that the documents likely would have supplied insight into the government's "real reasons" for bringing a case that "embarrassed our entire nation and each of us who is a citizen of it." RT, 58:10-11. If nothing else, this stunning turn of events was powerful evidence of the importance of accessible information and an accountable government. Yet numerous documents in this case remain under seal upon stipulation of the parties, and apparently without satisfying the mandatory procedural and substantive requirements that must be met before public access to pretrial documents may be denied.
The docket sheet shows that the government's first motion for a protective order, filed on December 13, 1999, was granted, without a hearing, one day after it was docketed. A number of unidentified documents, orders and motions were sealed between December 13, 1999 and February 9, 2000 when the parties stipulated to a second protective order. This order delegated to a Court Security Officer the Court's authority to determine whether Lee's papers should be filed under seal. Stipulated Protective Order at 7-8 ("PO"). The Security Officer was not required to make any findings and was empowered to make sealing decisions "in consultation with representatives of the appropriate [government] agencies." Id. at 8. The protective order allowed the government to file under seal portions of papers containing classified information without any review or findings by the Court justifying sealing. Id.
As explained herein, these sealing orders patently violated the public's constitutional and common law rights of access.
I.The First Amendment and the common law provide independent rights of access to the types of pretrial documents that remain under seal in this case. Each right is grounded in a different theory of access, but the purpose is the same: Public access promotes trustworthiness in the judicial process, helps curb abuses, and provides the public with a more complete understanding of the judicial system, including a better perception of its fairness. See, e.g., Globe Newspaper Co., 457 U.S. at 606. Public access is especially important here, where secrecy and unaccountability caused the Court itself to be "led astray" by the executive branch, and the American public was left with a tarnished view of the criminal process, RT, 55:4.
CAA AND THE PUBLIC HAVE A CONSTITUTIONAL AND COMMON LAW
RIGHT OF ACCESS TO PRETRIAL DOCUMENTS FILED IN A CRIMINAL CASE
A. The First Amendment Provides A Right Of Access To Pretrial Documents
The Supreme Court has recognized that the public has a right of access to virtually all proceedings and records in a criminal case. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (criminal trials); Press Enterprise I, 464 U.S. at 511, 513 (voir dire and transcripts); Waller v. Georgia, 467 U.S. 39 (1984) (suppression hearings); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986) ("Press-Enterprise II") (preliminary hearings).4 The Tenth Circuit has assumed that a First Amendment right of access applies to pretrial documents filed in a criminal case, U.S. v. Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1997); U.S. v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997), and district courts within the Tenth Circuit have applied a First Amendment analysis to pretrial docurnents filed in criminal cases. See, e.g., U.S. v. McVeigh, 918 F. Supp. 1452, 1464 (W.D. Okl. 1996). Indeed, there can be no doubt that the First Amendment right of access attaches to pretrial documents. As the vast majority of circuits explicitly have recognized, there can be no distinction, for public access purposes, between pretrial proceedings and the documents filed as part of those proceedings. In the words of then-Circuit Judge Anthony Kennedy, "the public and the press have a right of access to criminal proceedings and documents filed therein. The right of access is grounded in the First Amendment and in common law, and extends to documents filed in pretrial proceedings as well as in the trial itself." CBS, Inc., 765 F.2d at 825 (citations omitted).5
4 These cases reversed a prior decision of the Supreme Court, which had held that the public did not have a right of access to suppression hearings under the Sixth Amendment. Gannett Co. v. DePasquale, 443 U.S. 368 (1979), "[A]lthough no single case has expressly done so, the combination of Richmond Newspapers and Waller ... effectively overruled Gannett." NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1205 n.22 (1999).The courts routinely find a right of access to pretrial documents filed in criminal cases because these documents easily meet the Supreme Court's two-part test for recognizing a constitutional right of access: (1) "the document is one which has historically been open to inspection by the press and the public; and, (2) 'public access plays a significant positive role in the functioning of the particular process in question.'" McVeigh, 119 F.3d at 812 (quoting Press-Enterprise II, 478 U.S. at 8).
5 See also In re Globe Newspaper Co., 729 F.2d 47,51,59(1st Cir. 1984) (the First Amendment right of access "has also been extended to documents filed in pretrial proceedings"); U.S. v. Haller, 837 F.2d 84, 87 (2nd Cir. 1988) ("right of access extends to plea hearings and thus to documents filed in connection with those hearings"); U.S. v. Antar, 38 F.3d 1348, 1361 (3rd Cir. 1994) (the "strong presumption of access to records, including transcripts, provides independent support for the conclusion that the First Amendment right of access must extend equally to transcripts as to live proceedings"); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986) ("the First Amendment right of access applies to documents filed in connection with plea hearings"); U.S. v. Peters, 754 F.2d 753, 763 (7th Cir. 1985) ("[w]e have recognized that this presumption is of constitutional magnitude through the first amendment"); Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513,1516 (9th Cir 1988) ("the public and press have a right of access to criminal proceedings and documents"); U.S. v. Ellis, 90 F.3d 447 (11th Cir. 1996) (First Amendment right of access applies to transcripts of in camera hearings).
Although the docket sheet does not reveal the nature of all the sealed documents, it appears these documents fall squarely into categories to which the federal courts have acknowledged a right of access, such as motions, briefs, orders and transcripts from pretrial hearings. See, e.g., In re Time Inc., 182 F.3d 270, 271 (4th Cir. 1999) (pretrial motions and briefs, including discovery-related motions); U.S. v. Ellis, 90 F.3d 447, 451 (11th Cir. 1996) (transcripts of in camera hearings once the case was concluded); Associated Press, 705 F.2d at 1145 (all pretrial documents); Seattle Times Co. v. U.S. Dist. Court. 845 F.2d 1513, 1517 (9th Cir. 1988) (pretrial release proceedings and documents filed therein); In re Washington Post, 807 F.2d 383, 390 (4th Cir. 1986) (plea and sentencing documents in espionage case). As for part two of the test, it is met where, inter alia, public access to the document "would tend to operate as a curb on prosecutorial or judicial misconduct and would further the public's interest in understanding the criminal justice system." In re Washington Post, 807 F.2d at 389 (citing Press-Enterprise II, 478 U.S. at 8) (other citations omitted). That standard is easily met here. If access is warranted anywhere in order to curb prosecutorial misconduct -- or to provide the public with a better understanding of the judicial system6 -- it is warranted in this case, where, as this Court observed, the prosecution "caused embarrassment by the way this case began and was handled." RT, 58:8-9, and the government's motives "ma[de] no sense," RT, 50:20-21.
6 This is another factor satisfying the second prong of the access test. See, e.g., Seattle Times, 845 F.2d at 1517.While both factors must be considered, the Supreme Court and other circuits have held that it is not mandatory that a document meet both prongs for the First Amendment right of access to attach. Globe Newspaper Co., 457 U.S. at 605 n. 13 (recognizing right of access to testimony of minor sex crimes victim despite lack of history of access); Seattle Times, 845 F.2d at 1516 (same regarding bail proceedings); U.S. v. Brooklier, 685 F.2d 1162, 1170 (9th Cir. 1982) (same regarding suppression hearings). Especially in a criminal trial, a lack of a tradition of access to a particular document or proceeding cannot alone justify sealing. Globe Newspaper Co., 457 U.S. at 605 n. 13 (the argument that a specific proceeding did not enjoy a tradition of public access was "unavailing" because "as a general matter criminal trials have long been presumptively open"). Rather, the Court must consider whether, in the context of our modern justice system, public access serves society's general interest in open trials and an accountable judiciary. Brooklier, 685 F.2d at 1170. Because "the first amendment is to be interpreted in light of current values and conditions," and in light of the "increasing importance of pretrial procedures in the modern era," a right of access attaches even to records not traditionally open where, as here, the value of access is apparent. Id. Thus, even if the Court finds that some documents under seal in this case do not have a long tradition of access, the First Amendment right would still attach because public access subjects the judiciary to "healthy public scrutiny," Seattle Times, 845 F.2d at 1516, and is crucial to a full understanding of the way in which "the judicial process and the government as a whole" are functioning. Associated Press, 705 F.2d at 1145.
B. The Common Law Also Provides A Right of Access To Pretrial Documents
In addition to a constitutional right of access, the public also has a common law right to inspect and copy public records and documents, including judicial records and documents. U.S. v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985); Nixon, 435 U.S. at 598. Although they are related, the common law right of access is separate and independent from the constitutional right, and attaches, presumptively, to all documents filed in a criminal or civil case. FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 409 (1st Cir. 1987) ("documents which are submitted to, and accepted by, a court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which the presumption of public access applies"); see also Nixon, 435 U.S. at 598 (a common law right of access has been acknowledged when the party seeking access has manifested a "desire to keep a watchful eye on the workings of public agencies"). This common law right attaches even where the court does not reach the constitutional issue or does not find a constitutional right of access. U.S. v. Schlette, 842 F.2d 1574, 1582-83 (9th Cir. 1988); Valley Broadcasting Co., 798 F.2d at 1293; Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63-64 (4th Cir. 1989).
To assert this common law right, CAA need only make a threshold showing of a legitimate need for disclosure. U.S. v. Kaczynski, 154 F.3d 930, 931 (9th Cir. 1998). This requirement is easily met here because unsealing will "serve the ends of justice" id., by "[m]aking the public aware of how the criminal justice functions," Schlette, 842 F.2d at 1583, and more specifically, will shed light on whether Lee was the victim of selective prosecution and whether the nation's tax-supported national laboratories are engaging in unconstitutional activities. The burden then shifts to government to articulate a "legitimate reason for preserving ... secrecy," id. at 1583, that would outweigh the public's "overriding concern with preserving the integrity of the law enforcement and judicial processes," Hickey, 767 F.2d at 708 (internal citations omitted). If the government cannot meet this burden, the documents must be unsealed. Id. The purported national security interests the government asserted in support of keeping Lee confined "under extraordinarily onerous conditions" turned out to be groundless, RT, 50:18,55: 14-17, and the government already has implicitly conceded this fact when it entered into the plea agreement with Lee. Id. Accordingly, the Court must closely scrutinize any further assertions of national security. Just as Lee was released from solitary confinement when the government finally admitted he was no threat to national security, this Court should also release the documents the government also mistakenly claimed were a threat to national security.
II.As the Supreme Court and other courts have held, the public "must be given an opportunity to be heard on the question of [its] exclusion" from court hearings and records. Globe Newspaper Co., 457 U.S. at 609 n.25. Closure motions must be (1) docketed reasonably in advance of their disposition so as to give the public an opportunity to present their objections to the court, (2) the court must provide interested persons an opportunity to object to the sealing before making its decision, and (3) if the court does close a hearing or seal records, it must state its reasons on the record, supported by specific findings. In re Knight Publishing Co., 743 F.2d 231, 234-35 (4th Cir. 1984); accord, e.g.. In re Washington Post, 807 F.2d at 390; U.S. v. Criden, 675 F.2d 550, 554 (3rd Cir. 1982). The Tenth Circuit has remanded cases in which the district court did not make specific, on-the-record findings. U.S. v. Galloway, 937 F.2d 542, 1551 (10th Cir. 1991); see also McVeigh, 119 F.3d at 814 (the court must make adequate findings to support its orders) (citing Press-Enterprise II, 478 U.S. at 13-14).
THE DOCUMENTS MUST BE UNSEALED BECAUSE THE GOVERNMENT HAS
NOT COMPLIED WITH THE SUPREME COURT'S PROCEDURAL
REQUIREMENTS FOR SEALING PRETRIAL DOCUMENTS
Moreover, a court cannot automatically cure a failure to comply with the procedural requirements by holding a belated hearing or making after-the-fact findings. In re Washington Post, 807 F.2d at 392 (a belated hearing on a motion to unseal "does not cure the lack of an opportunity for a hearing with respect to the original decision to seal them").
The docket sheet and stipulated protective order in this case show that the mandatory sealing procedures were not followed, as the public was denied an opportunity to object to the first sealing order and the Court failed to determine for itself whether sealing in fact was warranted. On this basis alone, the documents at issue must be unsealed. In re Washington Post, 807 F.2d at 393 (vacating district court's sealing order because the court "cannot uphold orders based on the use of impermissible procedures"); Brooklier, 685 F.2d at 1167-68 (order closing hearings and sealing records unconstitutional because "the court excluded the public and press without satisfying the procedural prerequisites to closure").7
7 Of course, the Court may redact information that, in its own determination, truly implicates national security, as explained in Section III of this memorandum brief.A. The Court Erred In Not Making Its Own Findings Before Sealing
As explained above, it is clear that parties to an action cannot stipulate away the public's right of access. Procter & Gamble Co., 78 F.3d at 227 ("[t]he protective order in this case allows the parties to control public access to court papers, and it should be vacated or substantially changed"); accord, e.g., Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983) (confidentiality agreement between the parties could not justify sealing of records to which public has a right of access because a court cannot blindly accept parties' agreements for secrecy "without seriously undermining the tradition of an open judicial system"). Furthermore, even if the Classified Information Procedures Act, 18 U.S.C.A. App. §§ 1-16 ("CIPA"),8 allowed the sealing of portions of documents that contained bona fide classified information, a court may not seal any documents, including those purported to contain classified information, without "making the appropriate constitutional inquiry." In re Washington Post, 807 F.2d at 393 (vacating order sealing plea and sentencing documents in case in which a foreign national was charged with espionage because the court, relying on CIPA, provided no opportunity for the public to be heard and failed to make specific findings). Indeed, all federal courts that have considered the issue have flatly rejected the government's contention that CIPA somehow relieves a court of its obligation to adhere to the mandatory First Amendment closure procedures in an espionage case: "[T]he procedural requirements ... are fully applicable in the context of closure motions based on threats to national security" and "[t]here is no reason to fear that these procedures would in themselves alert the public to the substance of the information sought to be kept secret." Id. at 391-92; accord U.S. v. Poindexter, 732 F. Supp. 165, 167 n. 9 (D. D.C. 1990) ("CIPA obviously cannot override a constitutional right of access"); U.S. v. Pelton, 696 F. Supp. 156, 157 (D. Md. 1986) ("[t]here is nothing in the legislative history [of CIPA] to suggest that the government may close all or part of a public trial").
8 CIPA ailows preliminary evidentiary rulings where a defendant may reveal classified infonnation during trial or may request classified information in discovery. It was enacted to "minimize the problem of so-called graymail, a threat by the defendant to disclose classified information in the course of trial, by requiring a ruling on the admissibility of the classified information before trial." In re Washington Post, 807 F.2d at 383.What these cases make clear is that the Court has an affirmative duty to determine if the executive branch's assertions regarding national security indeed warrant sealing. It is well-established that "important First Amendment values" cannot be overcome by "a mere assertion of 'national security.'" Pelton, 696 F. Supp. at 159, accord In re Washington Post, 807 F.2d at 391 (vacating district court's sealing orders where the district court simply "deferr[ed] to the executive branch"). Rather, the right of access may be denied only if the Court conducts "its own analysis of the [classified information at issue] and finds that there are serious national security concerns").9 Pelton, 696 F. Supp. at 159 (allowing closure only of approximately five minutes of a criminal espionage trial, but requiring the release of a redacted version of the transcripts). By contrast, in this case the stipulated protective order allowed sealing based solely on the government's "mere assertion of national security" when it delegated to a Security Officer the Court's duty to determine what documents filed by Lee contained classified information or implicated national security. The Security Officer was empowered to decide -- without making any findings and "in consultation with representatives of the appropriate [government] agencies" -- whether Lee's papers would be filed under seal. PO at 7-8.
9 All emphases are added unless otherwise noted.This procedure plainly violated both the constitutional and common law rights of access. Moreover, CIPA does not -- and could not -- authorize the Court Security Officer to assume the Court's duty to review whether sealing indeed was warranted. 18 U.S.C.A. App. §§ 1-16. Indeed, a review of protective orders in other cases implicating CIPA reveals that the Security Officer may only enforce the procedural mechanisms for the handling and storage of classified documents -- i.e., maintain secure areas for the viewing of documents and provide for the storage of classified documents. See, e.g., Protective Order in U.S. v. Poindexter, 1988 WL 148597 *1 (1988) (the duties of the Court Security Officer are to "establish procedures" for the disclosure of classified documents to parties who have security clearance); Protective Order in U.S. v. Weinberger (filed as Defendant's Exhibit B in Armstrong v. Executive Office of the President, 830 F. Supp. 19, 24 (D.C. Cir. 1993)) (Security Officer was responsible for identifying people with security clearance and for "establish[ing] procedures" for the disclosure of classified information to the defendant); Protective Order in U.S. v. Musa, 833 F. Supp. 752, 757-78 (E.D. Mo. 1993) (role of the Security Officers was to provide a "secure room" for the viewing of documents and make the "security arrangements necessary to protect from unauthorized disclosure any classified information"). By contrast, the Security Officer in this case was allowed to make substantive sealing decisions that implicated -- indeed, violated -- the First Amendment and the public's right of access. Not only did the stipulated protective order impermissibly delegate Article III determinations to a Security Officer, the Security Officer appeared to allow the wholesale sealing of documents when even the protective order itself only allowed for the sealing of those limited portions of documents containing bona fide classified information. PO at 8.
Moreover, the stipulated protective order allowed the government to decide for itself which of its own papers would be filed under seal, without any judicial review whatsoever. PO at 8. This was manifestly improper and unconstitutional. The federal judiciary cannot allow the executive branch to dictate what information implicates national security, and what should be sealed. As the Fourth Circuit explained in vacating sealing orders where, unlike here, the government claimed CIPA permitted sealing because access posed a threat to the lives of its agents:
[T]roubled as we are by the risk that disclosure of classified information could endanger the lives of both Americans and their foreign informants, we are equally troubled by the notion that the judiciary should abdicate its decisionmaking responsibility to the executive branch whenever national security concerns are present. History teaches us how easily the spectre of a threat to "national security" may be used to justify a wide variety of repressive government actions. A blind acceptance by the courts of the government's insistence on the need for secrecy, without notice to others, without argument, and without a statement of reasons, would impermissibly compromise the independence of the judiciary and open the door to possible abuse.In re Washington Post, 807 F.2d at 391-92.
In the landmark "Pentagon Papers" case, the Supreme Court also recognized that "[t]he word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic." New York Times Co. v. U.S., 403 U.S. 713, 719(1971) (Black and Douglas, J.J., concurring).
Even if the government could argue that portions of certain documents were properly sealed pursuant to CIPA, many sealed records do not appear to directly implicate classified information, including memoranda responding to Lee's request for selective prosecution materials and Lee's reply brief in support of pretrial release. If these documents do contain information that truly implicates national security, it is difficult to imagine that they contain nothing but classified information, such that redaction would be impossible. In addition, it is impossible to determine whether other unidentified documents, marked on the docket sheet simply as "sealed," conceivably contain information that truly threatens national security.
B. Documents Were Sealed Before The Public Had An Opportunity To Object
While the utter absence of the requisite judicial findings is a sufficient basis, alone, to require unsealing, the public also was denied adequate notice and an opportunity to object. The docket sheet shows that the government's first motion for a protective order (filed on December 13, 1999) was granted, without a hearing, just one day after it was docketed, thereby denying the public a reasonable time in which to object. See, e.g., U.S. v. Criden, 675 F.2d 550, 559 (3rd Cir. 1982) ("some notice must be given that is calculated to inform the public that its constitutional rights may be implicated in a particular criminal proceeding"); Phoenix Newspapers v. U.S. Dist. Court, 156 F.3d 940, 949 (9th Cir. 1998) (public is entitled to a "meaningful opportunity to address sealing ... on the merits").
The government's December 22, 1999 motion for a protective order was properly docketed in advance of its disposition but was resolved by stipulation and without a hearing. Moreover, a number of motions, orders and documents -- described simply as "sealed" on the docket sheet -- were sealed between the first, improperly noticed protective order and the stipulated protective order. Thus, with regard to these documents, the "notice" and "opportunity to object" prongs of the mandatory sealing procedure also were not satisfied.
C. Because The Court Did Not Make Its Own Findings
And Because The Public Was Denied An Opportunity To Object,
The Documents Must Be Unsealed
As the foregoing discussion and authorities conclusively demonstrate, a case involving classified information does not excuse a court from its constitutional obligations to (1) conduct its own review of the documents, and make specific, on-the-record findings as to whether the government's national security assertions truly justified sealing, and (2) provide an opportunity for the public to object to the sealing. These procedural requirements were not met here. Because these shortcomings cannot be cured by subsequent proceedings, In re Washington Post, 807 F.2d at 392, the documents must be unsealed forthwith.10
10 Where the court determines, upon its own review of the sealed documents, that portions of such documents do in fact threaten national security, it may at that point redact those portions.
III.The Supreme Court and other courts also have established rigorous substantive limitations on the ability of courts to seal records filed in a criminal case. "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press- Enterprise I, 464 U.S. at 510; Globe Newspaper Co., 457 U.S. at 606-07; McVeigh, 119 F.3d at 811. Thus, for a sealing order to survive, the specific, on-the-record findings the Court is required to make must satisfy the substantive test for closure and the record must support those findings. Press-Enterprise II, 478 U.S. at 13-15; Oregonian Publishing Co. v. U.S. Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990). More specifically, the Court must find, and the record must reflect, that (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest. In re Washington Post, 807 F.2d at 392; Press-Enterprise I, 464 U.S. at 510-11; see also CBS. Inc., 765 F.2d at 826 ("excision from documents of names and transactions" is an alternative to sealing).
THE SUBSTANTIVE REQUIREMENTS FOR SEALING PRETRIAL DOCUMENTS
REQUIRE THAT THE COURT REVIEW ALL SEALED DOCUMENTS AND REDACT
ONLY THE PORTIONS THAT IMPLICATE NATIONAL SECURITY
It is readily apparent that these substantive requirements were not satisfied and that "[t]he district court here failed to engage in the required three-part constitutional analysis." In re Washington Post, 807 F.2d at 393. Nor could this test be satisfied, at least as to the vast majority of material under seal. To begin with, mere reliance on CIPA or blanket assertions of national security does not even met the first and second parts of the test. Rather, the Court must find that there is a substantial probability that national security will in fact be banned absent sealing. Id.; see also Phoenix Newspapers, 156 F.3d at 949; Seattle Times, 845 F.2d at 1523.11 Moreover, even if the record showed, and the Court could find, that some parts of some documents would in fact pose a threat to national security if unsealed, it is inconceivable that this interest supports the wholesale sealing of pretrial documents to which the federal courts have recognized a right of access, especially as the protective order itself says that on\y portions of these records may be sealed. 12
11 Of course, if any documents were sealed pursuant to a fear of pretrial prejudice, or other effects on the conduct or outcome of the trial, such concerns no longer justify sealing since there will be no trial. Ellis, 90 F.3d at 450 (even if proceedings were properly closed during trial, "transcripts of properly closed proceedings must be released when the danger of prejudice has passed") (emphasis added); accord Seattle Times, 845 F.2d 1522 (while sealing of certain documents was appropriate during trial, the "documents will be ordered unsealed, without a further motion or other proceedings, when the jury returns its verdict"); Phoenix Newspapers, 156 F.3d at 947 ("transcripts of public trial proceedings must be released when the factors militating in favor of closure no longer exist").At a minimum, the Court should review the sealed records and redact only those portions, if any, that, in its own determination, truly threaten national security and release the balance of the sealed records. See, e.g. In re New York Times Co., 828 F.2d 110, 116 (2"d Cir. 1987) (trial judge should consider alternatives to "wholesale sealing of the papers" such as the "redaction of names and perhaps portions of the ... materials contained in the motion papers ...."); Poindexter, 732 F. Supp. at 169 (allowing the closure of President Reagan's deposition during trial of former National Security Advisor, but noting "[i]t is important to keep in mind that the issue here is not whether, but rather when, the press will have access to President Reagan's testimony" because after the deposition the court would "edit out of the videotape those portions which contain the sensitive material"); Pelton, 696 F. Supp. at 159 ("[i]n balancing the opposing interests of national security and the public's right of access to a public trial, the court finds ... that both interests can be reasonably well accommodated by making public a redacted version of the transcripts").13
12 It would be shocking indeed if the transcripts, minutes, court orders and memoranda sealed in U.S. v. Wen Ho Lee contained only classified information, such that redaction would be impossible. Even if CIPA authorized the closure of some evidentiary proceedings or documents related to those proceedings (assuming, of course, that the Court had undertaken the requisite constitutional analysis in closing the proceedings or sealing the documents), CIPA certainly could not authorize the sealing of documents that may simply embarrass the government.
13 In addition, CIPA cannot prevent the post-trial disclosure of information acquired by the defendant prior to indictment. U.S. v. Pappas, 94 F.3d 795, 801 (2nd Cir. 1996) ("information acquired by the defendant prior to the criminal prosecution may be prohibited from disclosure only 'in connection with the trial' and not outside the trial" (quoting House Report 4736 sect. 109(a)). Thus, to the extent sealed records contain allegedly classified information that was in Lee's possession before trial, CIPA is not a justification for keeping such records sealed.
CONCLUSIONAs shown, the sealing of documents in this case did not comport with the procedural and substantive tests mandated by the Supreme Court and other courts, and was unconstitutional.14
14 The sealing orders also violate the public's common law right to inspect judicial records and documents. To determine whether there are interests sufficient to outweigh the strong presumption of access to judicial documents, the burden is on the party seeking to keep the documents sealed to demonstrate that the factors opposing access outweigh those favoring it. U.S. v. Smith, 787 F.2d 111, 115 (1986). Even if the government could show that classified information warrants continued sealing of some documents, the required balancing of interests under the common law approach requires that the Court redact what is strictly classified, and then release the remainder of the documents. Pelton, 696 F. Supp. at 159.At a minimum, this Court must review all sealed documents and unseal the portions of the documents that contain information that does not threaten national security. The documents, or portions of documents, should be immediately unsealed to prevent any further violation of the public's constitutional and common law rights:
In light of the values which the presumption of access endeavors to promote, a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous.Grove Fresh Distributors, 24 F.3d 893, 897 (7th Cir. 1994) (citations omitted).
Until the Court remedies the sealing orders in this case, the wrongs committed "by ... the Department of Justice, by [the] Federal Bureau of Investigation and by [the] United States attorney for the district of New Mexico" endure not just against Lee, but against the entire country. RT, 55:4-7. For all the foregoing reasons, CAA respectfully requests that this Court grant this motion and lift all sealing orders forthwith. In the absence of immediate unsealing, CAA requests a hearing on the important constitutional and common law rights at issue.
STEINHART & FALCONER LLP
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