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From the Fall 2008 issue of The News Media & The Law, page 5. The courts have historically been open…

From the Fall 2008 issue of The News Media & The Law, page 5.

The courts have historically been open in America. But after the Sept. 11, 2001 terrorist attacks, this presumption was turned on its head secrecy has been the norm for proceedings that dealt, however tangentially, with terrorism or national security.

The most extreme manifestation of this secrecy was in the detention of hundreds of suspects, without charge and without access to counsel, in particular at Guantanamo Bay in Cuba. When detainees gradually made it into the courtroom, the use of military tribunals presented reporters with unique barriers to access, including extensive “ground rules” providing that journalists could be excluded from any hearing at any time without explanation.

But beyond these big stories, the administration’s penchant for secrecy even in more traditional, civilian court proceedings has been just as damaging. Indeed, it is only recently that the judiciary has forcefully pushed back against government assaults on the constitutional value of openness.

“Sensitive details” in criminal cases

Nowhere was the administration more aggressive in promoting secrecy and nowhere were the courts more accommodating than in the prosecution of terrorism cases.

In Media General Operations, Inc. v. Buchanan, the U.S. Court of Appeals in Richmond (4th Cir.) in 2005 refused to allow two newspapers access to an affidavit filed in support of warrants to search Islamic businesses and charities in Northern Virginia as part of an anti-terrorism investigation.

The government had submitted the same 100-page affidavit by a U.S. customs agent in support of several warrant applications. Yielding to a government request, the trial court refused to allow reporters to see the document, even though the Federal Rules of Criminal Procedure provide that affidavits filed in support of an application for a search warrant usually become part of the public case file after the warrant is executed and returned.

The Fourth Circuit approved the secrecy, saying the government’s interest in protecting the ongoing investigation justified sealing the search-warrant affidavit, which contained “sensitive details.” The court brushed off the argument that the sealing was procedurally improper, saying that rules requiring judges to base a decision to seal on specific factual findings and to state the reasons for rejecting alternative measures to sealing are “for the benefit of the court, not the public.”

Courts were similarly deferential in M.K.B. v. Warden, in which an Algerian-born Florida resident named Mohamed K. Bellahouel was secretly jailed by U.S. authorities for five months between late 2001 and early 2002.

Bellahouel filed a habeas corpus petition challenging his captivity, but the courts kept the case entirely secret. The Reporters Committee and 22 other media and public interest organizations asked to intervene in the case in order to challenge the sealing of Supreme Court records. But in turn the Court denied Bellahouel’s petition for review, denied the news media’s motion to intervene, and even allowed the government to file a completely secret brief, all without comment.

In so doing, the Court allowed extraordinary secrecy in the case to stand.

The “state secrets” privilege

The Bush administration’s move toward secrecy in the name of national security also extended to the civil arena, where the government aggressively asserted the once-dormant “state secrets” privilege.

That privilege, created by a 1953 U.S. Supreme Court ruling, allows courts to dismiss lawsuits in which the government establishes that even trying the case under extraordinary secrecy could reveal state secrets. Once rarely used, the Bush administration invoked it in a wide range of cases, from warrantless wiretapping to records of lobbyist Jack Abramoff’s visits to the White House.

In 2005, for example, the U.S. Court of Appeals for the D.C. Circuit cleared its courtroom to hear arguments in an appeal brought by FBI whistle-blower Sibel Edmonds, whose lawsuit had been dismissed by the trial court after the government asserted the state secrets privilege.

In fact, at the trial level, the court would not even explain the grounds for dismissal. U.S. District Judge Reggie B. Walton explained: “It is one of the unfortunate features of this area of the law that open discussion of how the general principles apply to particular facts is impossible.” Following that same reasoning when its turn to consider the case came up, the appellate court ordered the public, the press and even the plaintiff and her legal team out of the courtroom, and ultimately upheld the dismissal.

Similarly, a district court in May 2006 summarily dismissed a German citizen’s lawsuit alleging CIA-backed torture, solely because the government asserted the state-secrets privilege.

The plaintiff, Khaled el-Masri, claimed he was kidnapped on New Year’s Eve in 2003 at the Serbian-Macedonian border and beaten, sodomized and imprisoned at a CIA-run facility in Afghanistan. U.S. District Court Judge T.S. Ellis III did not consider the truth of the allegations, ruling instead that the government properly sought to dismiss the case under the state secrets privilege.

“[I]f El-Masri’s allegations are true or essentially true, then all fair-minded people … must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy,” Ellis wrote. “Yet it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.”

Appellate courts upheld the dismissals in Edmonds and El Masri, and the Supreme Court refused to review the cases.

Indeed, the government’s reliance on the privilege has come to be seen as so poisonous that now Congress has stepped in. Sen. Edward Kennedy introduced legislation in January intended to narrow the scope of the state secrets privilege. Seven months later, the Senate Judiciary Committee released a report criticizing the pervasive use of the privilege and discussing the committee’s intent to introduce new legislation to shore up judicial review of it.

According to the report, courts have largely “acquiesced” to government assertion of the state secrets privilege, while “the executive branch has asserted the privilege more frequently and broadly than before.”

The Creppy memorandum: blanket secrecy in immigration proceedings

Secrecy has been still more pervasive in administrative courts that handle immigration proceedings.

Ten days after the Sept. 11 attacks, Chief Immigration Judge Michael Creppy issued a memorandum to all immigration judges and court administrators, directing judges to close all terrorism-related immigration hearings and avoid “disclosing any information about the case to anyone outside the Immigration Court.” The rule also prohibited immigration court officials from confirming or denying whether a particular case exists on the docket.

The so-called “Creppy memorandum,” with its blanket closure policy for all cases that involved terrorism allegations, was a drastic departure from the standard practice that each immigration case is evaluated on its own merit to determine whether closure is necessary.

But two federal courts of appeal reached conflicting decisions on whether the policy in the Creppy memorandum was constitutional. The Supreme Court declined to resolve the circuit split.

On the one hand, in Detroit Free Press v. Ashcroft, the U.S. Court of Appeals in Cincinnati (6th Cir.) held that the First Amendment requires a presumption of openness in immigration proceedings.

Judge Damon J. Keith, writing the unanimous opinion, concluded that public access to deportation proceedings “acts as a check on the actions of the Executive by ensuring that proceedings are conducted fairly and properly.” The desire to protect national security may be a compelling interest, Keith wrote, but the immigration judge failed to make particularized findings to justify closure, something the Creppy Memorandum also failed to do.

Most importantly, the court found that the Creppy Memorandum was not narrowly tailored to meet the interest in security.

By contrast, the U.S. Court of Appeals for the Third Circuit found that blanket closure was justified in immigration proceedings related to alleged terrorism. A split panel found in North Jersey Media Group, Inc. v. Ashcroft that “Congress has never explicitly guaranteed public access” to immigration proceedings. While the court recognized that the government’s national security concerns were speculative, it credited them anyway because “courts have traditionally extended great deference to Executive expertise.”

Courts push back on secrecy

Despite this general trend toward restricting access to court proceedings, some courts have pushed back.

Resistance sometimes came from unexpected places. One of the first major defeats for the Bush administration’s campaign for secrecy came from a military court.

In Denver Post Corp. v. U.S., reporters were denied access to a December 2004 preliminary hearing, called an “Article 32” hearing, at Ft. Carson, Colo. to determine whether three soldiers would stand trial for allegedly murdering an Iraqi general during interrogation. Maj. Gen. Abid Hamed Mowhoush suffocated inside a sleeping bag in November 2003 while in U.S. custody in Qaim, Iraq.

The Denver Post argued that the First Amendment provides a qualified right of public access to courts-martial. The Arlington, Va.-based court agreed with the media, ruling that the officer conducting an investigatory hearing should have tailored the closure order narrowly to prevent disclosure of classified information.

Shuttering the entire proceeding was “ill-considered, overbroad, and clearly erroneous,” the court found, since a review of the transcript revealed that in only “a few instances” was the testimony so intertwined with classified data that it justified closure.

Likewise, U.S. District Judge Leonie Brinkema, in presiding over the trial of Zacarias Moussaoui in Alexandria, Va., released redacted versions of most pleadings. The Fourth Circuit made efforts to accommodate the public’s right of access in that case, holding bifurcated oral arguments in order to allow the press to monitor the portion of the hearing in which classified information was not discussed.

Redacted copies of the briefs filed with the court of appeals in U.S. v. Moussaoui were released, and the court’s opinion was public.

This openness apparently did not interfere with the prosecution Moussaoui became the first person in the United States convicted in connection with the Sept. 11 attacks when he pleaded guilty in April 2005 to six terrorism-related conspiracy charges.

Finally, and most recently, the U.S. Court of Appeals in San Francisco (9th Cir.) in March rejected a government claim that the court had no power to unseal its own records because the government believed they contained sensitive information.

U.S. v. District Court centered around the plea agreement of Thomas Kontogiannis, a New York financier who was linked to a corruption scandal surrounding former California Rep. Randy “Duke” Cunningham.

U.S. District Court Judge Larry Burns initially agreed to temporarily seal the entire case. But when Burns later ordered some of the transcripts and documents related to Kontogiannis’ guilty plea agreement unsealed, the government appealed, claiming that neither the district court nor the appellate court had the power to unseal court records that the government considered to be sensitive.

The appellate court applied a balancing test, releasing those documents where it found no “compelling interest” in secrecy.

More generally, an attorney involved in the case noted that the court’s decision was an implicit rejection of the government’s claim that only it and not the court could decide whether the documents would be released.

“The government essentially argued that the Court could not even review whether the First Amendment required public release of the transcripts because the executive branch deemed the documents sensitive,” explained Laura Handman, who represented the Reporters Committee and other media groups that filed friend-of-the-court briefs in the case. “But the Court both held that the First Amendment right of access applies to the plea colloquy and ordered the transcript released,” she added, thus implicitly rejecting the government’s repudiation of judicial review.