BEFORE THE DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW In the Matter of Request for Comment on Interim Rule amending 8 CFR 3.27 and adding 8 CFR 3.46 to authorize immigration judges to issue protective orders and accept documents under seal. COMMENTS OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Submitted by: Lucy Dalglish, Esq. Gregg Leslie, Esq. Ashley Gauthier, Esq. The Reporters Committee for Freedom of the Press 1815 N. Fort Myer Drive Suite 900 Arlington, VA 22209 (703) 807-2100 fax (703) 807-2109 TABLE OF CONTENTS Introduction 1 Purpose of these Comments 1 Discussion 2 A. Immigration courts are subject to constitutional principles, even though they are part of an administrative agency. 2 B. The Supreme Court requires a presumption of openness for courts, both as a constitutional rule and a matter of sound public policy. 3 C. Immigration courts, like Article III courts, are subject to a presumptive right of access. 4 D. The presumptive right of access also extends to court documents and records. 5 E. Sealing orders and protective orders cannot be issued without meeting the test of strict constitutional scrutiny. 6 Conclusion 7 Introduction The Reporters Committee for Freedom of the Press submits these comments in response to the announcement of the interim rule and request for comment published in the Federal Register on May 28, 2002, Vol. 67, No. 102. The interim rule amends regulations governing the Executive Office for Immigration Review by authorizing immigration judges to issue protective orders and accept documents under seal. The Reporters Committee urges the Department of Justice and the Executive Office of Immigration Review to reconsider the interim rule and replace it with a rule that fulfills the constitutional requirements for sealing orders and protective orders as set forth by the U.S. Supreme Court and other federal courts. The interim rule does not provide for the constitutional protections required by federal courts, and therefore infringes on First Amendment and common law rights, as written. We also request the opportunity to testify at a public hearing if such a hearing is held. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association established in 1970 by news editors and reporters to defend the First Amendment and freedom of information rights of the print and broadcast media. The Reporters Committee assists journalists by providing free legal information via a hotline and filing amicus curiae briefs in cases involving the interests of the news media. The Committee produces several publications to inform journalists and media lawyers about media law issues, including a quarterly magazine, The News Media & The Law; a bi-weekly newsletter, News Media Update; a web site, www.rcfp.org; as well as several informational pamphlets and reports. The Committee recently produced a series of reports regarding court secrecy, which can be found on the website. Purpose of these Comments We have reviewed the interim rule and request for comment. We explain below why the interim rule fails to meet the constitutional standards required for sealing orders and protective orders. We raise concerns that some of the proposed policies would limit access to records that clearly serve the public interest. We also raise concerns that restrictive policies would violate First Amendment law. We propose that the rule be amended to include the procedures and protections required by federal courts to ensure the constitutionality of any sealing orders or protective orders issued by an immigration court. Discussion The interim rule states that it is motivated by security concerns. While security is a legitimate consideration, current constitutional law regarding the issuance of sealing orders and protective orders already accommodates legitimate security concerns. The interim rule purports to give immigration courts the authority to issue restrictive orders without adhering to the established constitutional tests. However, a rule cannot invalidate the Constitution. Nor is it necessary to issue a rule to protect legitimate interests. Such interests can be protected under existing law, and immigration courts are required to adhere to the constitutional standards imposed upon all courts seeking to issue restrictive orders. As discussed below, courts must apply a test of strict scrutiny to efforts to close judicial proceedings. Even though immigration courts are part of an administrative agency, they must adhere to the same standards as Article III courts with regard to constitutional issues. Immigration courts, therefore, may not issue sealing orders or protective orders without applying the strict scrutiny test first. The interim rule proposes a less strict test, and therefore may not be sustained. A. Immigration courts are subject to constitutional principles, even though they are part of an administrative agency. Immigration courts are required to adhere to basic constitutional principles. Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001) (applying basic due process principles to immigration courts in deportation and detention proceedings). Although immigration courts are created by statute and are not Article III courts, they must still comply with constitutional protections as courts. Congress may not circumvent the constitution merely by creating an ancillary judicial system. Even if Congress has "plenary power" to create immigration law, "that power is subject to important constitutional limitations." Zadvydas, 533 U.S. at 695 (citing INS v. Chadha, 462 U.S. 919, 941-942, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (Congress must choose "a constitutionally permissible means of implementing" that power); The Chinese Exclusion Case, 130 U.S. 581, 604, 9 S.Ct. 623, 32 L.Ed. 1068 (1889) (congressional authority limited "by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations")). Although immigration courts are administrative courts, they function as judicial institutions. The public must have faith in the immigration courts, and such faith can be derived only by adhering to acceptance of judicial principles. One of the most fundamental and important aspects of American judicial proceedings is court openness. B. The Supreme Court requires a presumption of openness for courts, both as a constitutional rule and a matter of sound public policy. The Supreme Court has consistently ruled in favor of open court proceedings because it has recognized that public faith in judicial institutions requires openness. Thus, in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the U.S. Supreme Court established that the public and the press have a First Amendment right to attend criminal trials. The Supreme Court reversed an order closing a criminal trial and emphasized the unvarying history of open judicial proceedings in this country: [T]he historical evidence demonstrates conclusively that at the time when our organic law were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather it has long been recognized as an indispensable attribute of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality. Richmond Newspapers, 448 U.S. at 569. The Supreme Court continued: From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice. Id. at 573. The Supreme Court later noted in Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982), that there are numerous public policy reasons supporting open judicial proceedings. "[Access allows] the public to participate in and serve as a check upon the judicial process -- an essential component of our structure of self government." Globe Newspapers, 457 U.S. at 606. The Court also noted that "[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact-finding process, with benefits to both the defendant and society as a whole." Id. Openness permits the public to be informed of the testimony of victims and witnesses so that other members of the community with pertinent, relevant information may come forward and contribute their knowledge. Richmond Newspapers, 448 U.S. at 596-97 (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties"); see also, San Bernadino County Dep't of Pub. Soc. Servs. v. Superior Court, 283 Cal. Rptr. 332, 341 (Ct. App. 1991) (reasoning that "open proceedings discourage perjury and might encourage other witnesses to come forward which in turn leads to more accurate fact-finding"). Public scrutiny also promotes fairness by operating as a restraint on possible abuses of judicial power, as well as providing a safeguard against "any attempt to employ our courts as instruments of persecution." In re Oliver, 333 U.S. 257, 270 (1984). See also, In re T.R., 556 N.E.2d 439, 453 (Ohio 1990) ("Since Judge Solove is an elected official, the public has a right to observe and evaluate his performance in office"). Public confidence in judicial proceedings is also enhanced by openness. In Press-Enterprise I, 464 U.S. 501 (1984), the U.S. Supreme Court considered whether the public had a right to attend jury voir dire in a high profile rape/murder trial in California. In holding that the proceedings should be open, the Court explained another benefit of public proceedings: The value of openness lies in the fact that people not actually attending trials can have confidence that the standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Press Enterprise I, 464 U.S. at 509. Thus, there is a clear line of case law reinforcing that court proceedings of all types should be presumptively open. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (finding a public right of access to criminal trials), Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (holding that statute mandating closure of courtrooms during minor victims' testimony was unconstitutional), Press Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (reversing California state court's closure of voir dire), Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (closure of criminal suppression hearing was overbroad and unconstitutional), Press Enterprise Co. v. Superior Court (Press Enterprise II), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (finding qualified right of access to pretrial hearings, and noting that First Amendment scrutiny must be applied), and El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 113 S.Ct. 2004, 124 L.Ed.2d 60 (1993) (closure of preliminary hearing was unconstitutional). C. Immigration courts, like Article III courts, are subject to a presumptive right of access. Following Richmond Newspapers and the policies in favor of open proceedings, courts have required openness in all kinds of administrative hearing and non-Article III courts, including military courts and immigration courts. See Whiteland Woods, LLP v. Township of West Whiteland, 193 F. 3d 177 (3d Cir. 1999) (finding First Amendment right of access to a planning commission hearing); Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (finding that INS deportation proceedings should be open)(appeal pending); Society of Professional Journalists v. Sec. of Labor, 616 F. Supp. 569 (D. Utah 1985) (access to federal administrative hearing); Herald Co. v. Weisenberg, 452 N.E.2d 1190 (NY 1983) (access to unemployment insurance hearing); Pechter v. Lyons, 441 F. Supp. 115 (S.D.N.Y. 1977) (holding that immigration judge abused discretion in closing access to immigration hearing); U.S v. Hershey. 20 M.J. 433 (C.M.A. 1985) (right of access to military courts). At least one court has specifically recognized the importance of open immigration proceedings, even in light of security concerns raised by September 11th. In Detroit Free Press v. Ashcroft, a federal court in Michigan ruled that the public's need to follow the court's actions far outweighed security concerns, at least in that particular case. Detroit Free Press, 195 F. Supp. 2d at 943-48. The court noted that immigration proceedings have traditionally been open to the public, a factor in favor of openness. Id. at 943. More importantly, however, was the fact that public access to immigration proceedings was procedurally beneficial. As the court stated, "[administrative proceedings] demand 'a fair and open hearing,' essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process." Id. (quoting Fitzgerald v. Hampton, 467 F.2d 755, 764 (D.C. Cir. 1972)). With regard to the accused terrorist's proceedings, the court aptly noted: The considerations the courts identified to support a right of access . . . apply as strongly to Haddad's deportation proceedings. . . . Openness is necessary for the public to maintain confidence in the value and soundness of the Government's actions, as secrecy only breeds suspicion . . . . And if in fact the Government determines that Haddad is connected to terrorist activity or organizations, a decision made openly . . . may assure the public that justice has been done. Id. at 944. The court also recognized that the Supreme Court requires immigration courts to adhere to constitutional procedures. Id. at 946 (citing Zadvydas v. Davis, 533 U.S. 678 (2001)). Thus, the principles of openness that apply to Article III courts apply to immigration proceedings. D. The presumptive right of access also extends to court documents and records. Expanding such reasoning, a presumptive right of access to court documents has also been affirmed numerous times by many different courts. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (finding a common law right of access to judicial records); Republic of Phil. v. Westinghouse Elec. Corp.,949 F.2d 653 (3d Cir. 1991) (right of access to trial records); Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989) (right of access to trial records); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (right of access to documents filed with a summary judgment motion); Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986) (stating that there is a long-standing presumption in the common law that the public may inspect judicial records); Associated Press v. U.S. (DeLorean), 705 F.2d 1143 (9th Cir. 1983)(finding a First Amendment right of access to court records); Brown & Williamson Tobacco Co. v. Federal Trade Commission, 710 F.2d 1165 (6th Cir. 1983), cert. denied, 465 U.S. 1100 (1984) (noting a First Amendment and common law right of access to records); United States v. Myers (In re Nat'l Broadcasting Co.), 635 F.2d 945 (2d Cir. 1980) (strong presumption of a right of access); Globe Newspaper Co. v. Fenton, 819 F. Supp. 89 (D. Mass. 1993) (right of access to court record indexing system); NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 980 P.2d 337, 86 Cal.Rptr.2d 778 (1999) (right of access to court records). Because of the presumption of access to court records, all courts should presume that the public will have access unless a party in a specific case can demonstrate a compelling reason to limit access. Thus, sealing orders and protective orders should be issued sparingly. E. Sealing orders and protective orders cannot be issued without meeting the test of strict constitutional scrutiny. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the U.S. Supreme Court established due process procedures that must be followed before a court may deny public access to a criminal proceeding. Since then, other courts have adopted similar principles, finding that due process requirements must be met before a court may limit public access to court proceedings or court documents. See, e.g., United States v. Cojab, 996 F.2d 1404, 1408 (2d Cir. 1993); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985); Commonwealth v. Angiulo, 615 N.E.2d 155 (Mass. 1993); State ex rel. National Broadcasting Company, Inc. v. Court of Common Pleas, 556 N.E.2d 1120 (Ohio 1990). Those due process procedures established in Richmond Newspapers have been applied by the federal appellate courts to cases where judges have issued sealing orders or protective orders. It is clear that sealing orders and protective orders should not be issued absent evidence of a compelling need for the order and no less restrictive alternative is available, and federal circuit courts have consistently stricken sealing orders that fail to meet a strict level of scrutiny. In re Providence Journal Co. Inc., - F.3d - (1st Cir. June 12, 2002); Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989); In re Time, Inc., 182 F.3d 270 (4th Cir. 1999); Seattle Times Co. v. District Court, 845 F.2d 1513 (9th Cir. 1988); U.S. v. Presser (In re NBC, Inc.), 828 F.2d 340 (6th Cir. 1987); In re Knight Pub. Co., 743 F.2d 231 (4th Cir. 1984); Associated Press v. District Court, 705 F.2d 1143 (9th Cir. 1983). Even if cases where sealing orders are permitted, the court must undergo the strictest scrutiny. See U.S. v. McVeigh, 119 F.3d 806 (10th Cir. 1997). The interim rule proposed by the Department of Justice does not adhere to such strict constitutional standards. First, the interim rule states that "the protective orders are limited to an important and substantial governmental interest in safeguarding the public, and national security and law enforcement concerns." While, such interests are very important, most federal circuits have required that there be evidence of a compelling interest and that there be no less restrictive alternative. The rule should require that immigration judges make such a finding of necessity before issuing any type of restrictive order. The rule also authorizes gag orders on respondents: "A respondent could . . . be ordered not to disclose what he or she has learned . . . ." This statement is based on a case involving grand jury information. But grand jury information has traditionally been treated differently from trial information. Gag orders cannot be imposed with regard to trials unless strict First Amendment scrutiny is met. In re Perry, 859 F.2d 1043 (1st Cir. 1988) (gag order issued during administrative proceeding and applicable to union organizing efforts was improper under First Amendment standards); U.S. v. Salameh, 992 F.2d 445 (2d Cir. 1993) (gag order that prevented any comments about the case invalid); Bailey v. Systems Innovation, Inc., 852 F.2d 93 (3rd Cir. 1988) (vacating gag order); U.S. v. Ford, 830 F.2d 596 (6th Cir. 1987) (gag order invalid).CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) (vacating gag order); Chicago Council of Lawyers v. Bauer, 552 F.2d 242 (7th Cir. 1975) (gag order invalid). The Reporters Committee does not suggest that sealing orders or gag orders can never be granted. However, any court, including an immigration court, should follow the procedural requirements mandated by constitutional interests before any order is issued, and the courts should make the requisite substantive findings of necessity before any order is issued. The interim rule attempts to supplant such constitutional requirements with substantially lax tests. Finally, it should be noted that, as a matter of policy, the interim rule is dangerous to national security and public safety. Under the rule, the respondent will have access to sensitive information, but the American public - - American citizens whose lives the government attempts to save - - will be ignorant and without access to information. As a practical matter, a respondent who does, in fact, pose a threat to the public will have access to information and will likely have the opportunity to surreptitiously pass such information along to any cohorts. But the public will not have the same access to information, and therefore will not be able to protect itself or identify potential threats that citizens might otherwise thwart if it were fully informed. It does little benefit to the public to let potential enemies be better informed than the public itself. The better policy is to provide open proceedings, allowing the public to observe and gather information, and deprive opponents of the benefit of being better informed than American citizens. Conclusion The Reporters Committee urges the Department of Justice and Executive Office for Immigration review to amend the interim rule to adopt the constitutional requirements necessary for valid sealing orders and protective orders.