United States v. Moussaoui , 65 F. App'x 881 ( 2003 )

Filed: May 13, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4162
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ZACARIAS MOUSSAOUI,
Defendant - Appellee,
and
ABC, INC.; ASSOCIATED PRESS; CABLE NEWS
NETWORK LP, LLLP; CBS BROADCASTING, INC.; THE
HEARST CORPORATION; NATIONAL BROADCASTING
COMPANY, INC.; THE NEW YORK TIMES COMPANY; THE
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS;
THE STAR TRIBUNE COMPANY; TRIBUNE COMPANY; AND
THE WASHINGTON POST,
Movants - Intervenors.
ORDER
A consortium of media companies and an organization
(collectively, “Intervenors”)1 moves to intervene for the limited
1
Intervenors are ABC, Inc.; Associated Press; Cable News
Network LP, LLLP; CBS Broadcasting Inc.; The Hearst Corporation;
National Broadcasting Company, Inc.; The New York Times Company;
The Reporters Committee for Freedom of the Press; the Star Tribune
Company; Tribune Company; and The Washington Post.
purpose of obtaining access to certain portions of the record and
oral argument in this appeal.2 We grant the motion to intervene
for a limited purpose. Our ruling with respect to the motion for
access to portions of the record and oral argument is set forth
below.
I.
Zacarias Moussaoui has been indicted on numerous charges
stemming from his alleged participation in the al Qaeda plot that
culminated in the attacks of September 11, 2001. In the course of
preparing for his capital trial, Moussaoui, who is proceeding pro
se, sought access to several captured leaders of al Qaeda. The
Federal Public Defender, acting as Moussaoui’s standby counsel,
supported these requests. In a sealed order, the district court
granted Moussaoui’s request as to one of these operatives. The
court directed that the operative’s testimony be taken by means of
a deposition pursuant to Federal Rule of Criminal Procedure 15, and
set forth measures governing the conduct of the deposition.
The Government timely appealed the order of the district
court. In addition to its notice of appeal, the Government filed
a petition for a writ of mandamus--styled In re United States,
2
A randomly selected panel has been assigned to hear
argument in the underlying appeal. A second panel, also randomly
selected, has been assigned for the purpose of ruling on these
motions.
2
No. 03-4261--seeking the same relief.3 Although the appeal and the
mandamus petition have not been consolidated, they are being
handled together and are scheduled to be argued simultaneously on
June 3.
Due to the sensitive nature of the information involved
in this appeal, much of which is classified top secret, the
pleadings and motions filed by Moussaoui, standby counsel, and the
Government have been filed under seal, at least initially.
Additionally, based upon our determination that oral argument would
involve extensive discussion of classified material, we granted the
Government’s motion to seal oral argument. Intervenors now contend
that such extensive sealing is both unnecessary and violative of
their constitutional and common law rights of access to judicial
materials and proceedings.
II.
The right of access to judicial documents exists at
common law and under the First Amendment. See Stone v. Univ. of
Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). The common
law provides a presumptive right to inspect and copy all judicial
records and documents, see Nixon v. Warner Communications, Inc.,
3
Intervenors filed substantively identical motions to
intervene for a limited purpose and for access to pleadings and
oral argument with respect to the petition for a writ of mandamus.
Our rulings on Intervenors’ motions in this case apply equally to
their motions in No. 03-4261.
3
435 U.S. 589, 597 (1978), while the First Amendment provides a
“guarantee of access ... only to particular judicial records and
documents,” Stone, 855 F.2d at 180. The First Amendment guarantees
access when (1) “the place and process have historically been open
to the press and general public” and (2) “public access plays a
significant positive role in the functioning of the particular
process in question.” Press-Enterprise Co. v. Superior Ct. (Press-
Enterprise II), 478 U.S. 1, 8 (1986); see Baltimore Sun Co. v.
Goetz, 886 F.2d 60, 64 (4th Cir. 1989). The right of the press and
public to attend judicial proceedings is a creature of the First
Amendment. See In re Knight Publ’g Co., 743 F.2d 231, 233 (4th
Cir. 1984) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 580 (1980) (opinion of Burger, C.J.)).
The value of openness in judicial proceedings can hardly
be overestimated. “The political branches of government claim
legitimacy by election, judges by reason. Any step that withdraws
an element of the judicial process from public view makes the
ensuing decision look more like fiat, which requires compelling
justification.” Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th
Cir. 2000); see Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 572 (1980) (opinion of Burger, C.J.) (“People in an open
society do not demand infallibility from their institutions, but it
is difficult for them to accept what they are prohibited from
observing.”). In criminal proceedings, “[o]penness ... enhances
4
both the basic fairness of the criminal trial and the appearance of
fairness so essential to public confidence in the system.” Press-
Enterprise Co. v. Superior Ct. (Press-Enterprise I), 464 U.S. 501,
508 (1984).
Public criminal trials also have “a community therapeutic
value”:
Criminal acts, especially violent crimes,
often provoke public concern, even outrage and
hostility; this in turn generates a community
urge to retaliate and desire to have justice
done.... When the public is aware that the
law is being enforced and the criminal justice
system is functioning, an outlet is provided
for these understandable reactions and
emotions. Proceedings held in secret would
deny this outlet and frustrate the broad
public interest; by contrast, public
proceedings vindicate the concerns of the
victims and the community in knowing that
offenders are being brought to account for
their criminal conduct ....
Id. at 508-09. This value, of providing to the community at large
a sense that justice has been done, is particularly relevant in the
prosecution of Moussaoui. Thus far, Moussaoui is the only
individual being prosecuted in a civilian court for complicity in
the September 11 attacks, and the proceedings have been the subject
of intense public interest throughout the country. In this vein,
it is significant that no small amount of interest in the trial
stems from concern about whether the government is affording
sufficient protection to Moussaoui’s constitutional rights and the
rights of other terrorism suspects.
5
Despite its importance, the right of access--whether
guaranteed by the common law or the First Amendment--is not
absolute. The common law right of access must yield to the
supervisory power of the court to control its own records when “the
public’s right of access is outweighed by competing interests.” In
re Knight Publ’g, 743 F.2d at 235; see Nixon, 435 U.S. at 598(describing circumstances in which competing interests have
outweighed common law right of access). When access is guaranteed
by the First Amendment, it may be curtailed only in favor of a
compelling Governmental interest, and the limitation of access must
be “narrowly tailored to serve that interest.” Globe Newspaper Co.
v. Superior Ct., 457 U.S. 596, 606-07 (1982); see Press-Enterprise
I, 464 U.S. at 510 (“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.”).
A. CIPA
The Classified Information Procedures Act (CIPA), 18
U.S.C.A. App. 3 §§ 1-16 (West 2000 & Supp. 2003) sets forth
procedures for the handling of classified information in criminal
cases. It was enacted for the purpose of preventing “graymail,” a
practice in which a criminal defendant attempts to derail his
prosecution by threatening to divulge classified information during
trial. See United States v. Smith, 780 F.2d 1102, 1105 (4th Cir.
6
1985). Under CIPA, the district court may be required to conduct
a pretrial hearing to determine whether classified information the
defendant intends to disclose during the course of trial is
relevant and admissible. See 18 U.S.C.A. App. 3 § 6(a). CIPA
further provides that if the Attorney General certifies that a
public hearing will result in the disclosure of classified
information, the hearing will be held in camera. See id. CIPA
allows the Government to pursue an interlocutory appeal of certain
orders entered pursuant to its provisions. See id. § 7(a).
The Government argues that the question of whether the
public is entitled to access to the pleadings and argument in this
case is answered, in the negative, by CIPA. We disagree with the
Government’s contention that because this appeal is related to
CIPA, all of the materials and the oral argument must be held under
seal.4 As Intervenors note, CIPA alone cannot justify the sealing
of oral argument and pleadings. See In re Wash. Post Co., 807 F.2d
383, 393 (4th Cir. 1986) (noting that the district court must
conduct constitutional inquiry even when CIPA applies because
“[t]he district court may not simply assume that Congress has
struck the correct constitutional balance”); United States v.
4
Additionally, we note that throughout its opposition to
Intervenors’ motion, the Government has phrased its arguments as
though every document filed with this court contains classified
information. This is not correct, and we decline the Government’s
implicit invitation to gloss over the significant differences in
the kinds of materials that have been presented to us.
7
Poindexter, 732 F. Supp. 165, 167 n.9 (D.D.C. 1990) (observing that
“CIPA obviously cannot override a constitutional right of access”).
Indeed, even in the absence of CIPA, the mere assertion of national
security concerns by the Government is not sufficient reason to
close a hearing or deny access to documents. See In re Wash. Post,
807 F.2d at 391-92. Rather, we must independently determine
whether, and to what extent, the proceedings and documents must be
kept under seal. See United States v. Pelton, 696 F. Supp. 156,
159 (D. Md. 1986). As noted below, Intervenors do not seek access
to classified information, and any such information will remain
under seal.
B. Balancing the Interests
1. Classified Information
At the outset, we note that there can be no doubt that
the Government’s interest in protecting the security of classified
information is a compelling one. See Dep’t of Navy v. Egan, 484
U.S. 518, 527 (1988). And, Intervenors disavow any desire to
obtain the release of classified information.5 We therefore
5
Nevertheless, Intervenors maintain that we need not defer
to the classification decisions of the Government. Implicit in
this assertion is a request for us to review, and perhaps reject,
classification decisions made by the executive branch. This we
decline to do. See United States v. Smith, 750 F.2d 1215, 1217
(4th Cir. 1984) (“[T]he government ... may determine what
information is classified. A defendant cannot challenge this
classification. A court cannot question it.”).
Intervenors also note that much of the information
contained in the pleadings has been reported publicly and suggest
8
conclude that all classified information filed with this court in
relation to this appeal will remain under seal.
2. Moussaoui’s Pleadings
Since the beginning of the proceedings against him in the
district court, Moussaoui has filed numerous pro se pleadings in
this court, none of which has been classified. Our practice with
respect to a pleading by Moussaoui is as follows. See generally
United States v. Moussaoui, No. 03-4162 (4th Cir. Apr. 18, 2003)
(order designating court security officer). The pleading is
initially filed under seal to provide the Government an opportunity
to submit proposed redactions.6 The pleading and motion to redact
are then submitted to the panel assigned to this case, which rules
on the pleading and on the motion. The redacted pleading is then
placed in the public file.
Intervenors do not contest the adequacy of this
procedure, and we decline to alter it. Redaction of Moussaoui’s
pleadings is necessary to omit irrelevant and inflammatory material
that for this reason, sealing is no longer required. This court
has previously rejected such an argument, noting that “[i]t is one
thing for a reporter or author to speculate or guess that a thing
may be so or even, quoting undisclosed sources, to say that it is
so; it is quite another thing for one in a position to know of it
officially to say that it is so.” Alfred A Knopf, Inc. v. Colby,
509 F.2d 1362, 1370 (4th Cir. 1975); see Pelton, 696 F. Supp. at
158 (“[T]here is a difference between speculation and
confirmation.”).
6
The motion to redact is placed in the public file, but
the proposed redactions are kept under seal.
9
and to prevent Moussaoui from attempting to communicate certain
information to others, see Special Administrative Measures for
Zacarias Moussaoui, § 1(c), news.findlaw.com/hdocs/docs/moussaoui/
usmouss41702gsam.pdf (last visited May 3, 2003). The interest of
the public in the flow of information is protected by our
exercising independent judgment concerning redactions. See United
States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (cautioning that
a court may not delegate task of redacting documents); Pelton, 696
F. Supp. at 159 n.2 (noting that court would “carefully compare the
redacted version [of a transcript] to the unredacted version for
accuracy and to determine whether all the proposed deletions are
necessary”).
3. Briefs
To date, three briefs have been filed: the Government’s
initial brief, an Appellee’s brief filed by the Federal Public
Defender, and the Government’s reply brief. All of the briefs
contain classified information, and for this reason they were
initially filed under seal with the Court Security Officer assigned
to this case. As of this writing, a redacted version of the
Government’s initial brief has been placed in the public file, and
the remaining briefs will also be filed publicly when the redaction
process is complete. In accordance with our duty to independently
examine the Government’s redactions, we will carefully compare the
redacted version of each brief to the unredacted version to ensure
10
that the redactions of unclassified material are no greater than
necessary.7 See Pelton, 696 F. Supp. 159 n.2. That process is not
affected by this order.
4. Joint Appendix
The joint appendix for this appeal consists of four
parts: an ex parte appendix filed by the Government, which
consists solely of highly classified documents; an ex parte
appendix filed by the Federal Public Defender, which also consists
solely of classified documents; a classified appendix which
contains the remaining classified information pertinent to this
appeal, but which is not solely comprised of classified documents;
and an unclassified appendix, which is presently under seal because
it comprises materials kept under seal by the district court. See
Local Rule 10(d) (noting that material placed under seal by the
district court remains under seal unless the protective order is
modified or amended by this court); cf. Stone, 855 F.2d at 182(noting that district court has “superior vantage point” from which
to make decisions regarding sealing of materials before it).
For the reasons discussed above, we conclude that the ex
parte appendices must be kept under seal, in their entirety,
because they consist entirely of classified information. We doubt,
however, that either the unclassified information in the classified
7
We will do the same with the pleadings related to the
Government’s petition for a writ of mandamus, a redacted version of
which is now publicly available.
11
appendix, or the documents in the unclassified appendix, need to
remain sealed in their entirety. As noted above, while the
classified appendix contains a number of classified documents, not
all of the documents therein are classified, and it appears that at
least some of the documents that contain classified information
could be made public (assuming a common law or First Amendment
right of access attaches) after classified material is redacted.
The unclassified appendix contains a wide variety of materials,
such as pleadings, hearing and deposition transcripts, and some
discovery materials. Some of these documents fall within the
common law presumption of access, while others are subject to the
greater right of access provided by the First Amendment. Still
others may not qualify as “judicial records” at all. See Amodeo,
44 F.3d at 145-46 (discussing when a document filed with the court
is a “judicial record”). We therefore must examine the
unclassified appendix document by document to determine, for each
document, the source of the right of access (if any such right
exists). See Stone, 855 F.2d at 181. As to those documents
subject to a right of access, we must then conduct the appropriate
balancing to determine whether the remainder of the document should
remain sealed, in whole or in part.
The burden of establishing that a particular document
should be sealed rests on the party promoting the denial of access.
See Boone v. City of Suffolk, 79 F. Supp. 2d 603, 606 (E.D. Va.
12
1999). Accordingly, we think it is appropriate to require the
Government to justify the continued sealing of the unclassified
materials in the classified and unclassified appendices. We
therefore direct the Government to do the following within ten days
of the entry of this order:
• As to the classified appendix, identify, with as much
specificity as possible, what material is classified;
• As to each document in the classified and unclassified
appendices, present its views concerning whether the
document is subject to a common law or First Amendment
right of access;
• As to all material identified as (a) unclassified and (b)
subject to a right of access, offer argument concerning
continued sealing. This argument shall account for the
fact that sealing an entire document is inappropriate
when selective redaction will adequately protect the
interests involved. Any proposed redaction shall be
accompanied by a statement of the reason for the proposed
redaction.
Upon receipt of the Government’s submission, this court will
proceed to review the unclassified materials in both appendices and
determine which of the documents therein should remain sealed.
5. Miscellaneous Pleadings
Presently pending before this court is the Federal Public
Defender’s motion to disclose or strike the ex parte appendix. The
primary documents filed in connection with this motion are the
motion itself, the Government’s opposition to the motion, and the
Public Defender’s reply to the opposition. Redacted versions of
the first two pleadings have been placed in the public file, and a
redacted version of the Public Defender’s reply to the opposition
13
will be placed in the public file in due course. As with other
redacted documents, we will review the redactions to ensure that
they are no greater than necessary.
Intervenors also protest the sealing of (1) the
Government’s certificate of confidentiality and motion to seal oral
argument, and (2) the motion to seal the certificate of
confidentiality and motion to seal oral argument. The Government
sought to seal these documents on the basis that placing them in
the public file would reveal the substance of the district court
order presently being appealed. In view of the fact that the
nature of the district court order is apparent from the text of the
Government’s redacted opening brief, which is available to the
press and general public, this justification can no longer stand.
We therefore order that the certificate of confidentiality and
motion to seal argument, and the motion to seal the certificate of
confidentiality and motion to seal oral argument, be unsealed and
placed in the public file.
6. Oral Argument
It is with respect to oral argument that the Government
presses most strongly its claim that CIPA controls. The Government
maintains that its appeal of the district court order is taken
pursuant to § 7 of CIPA; from this premise, it concludes that the
appeal itself is a “CIPA proceeding” which must be held in camera.
Cf. Poindexter, 732 F. Supp. at 168 & n.10 (stating that First
14
Amendment does not guarantee access to a “CIPA-type” hearing at
which “highly sensitive classified materials” would be discussed).
However, it is not at all clear that the appeal arises from CIPA--
the Government asserts CIPA as only one of three bases for
appellate jurisdiction. More important, however, is the
significant difference in language between sections 6 and 7 of
CIPA. Section 6 explicitly requires the district court to hold an
in camera hearing if the Attorney General certifies that classified
information would be revealed by a public hearing, but § 7 contains
no such requirement. Cf. United States v. Brandon, 247 F.3d 186,
190 (4th Cir. 2001) (noting “fundamental principle of statutory
construction that courts are obligated to give effect to Congress’s
decision to use different language in proximate subsections of the
same statute” (internal quotation marks omitted)). We therefore
conclude that even if this appeal is authorized by CIPA § 7, that
fact alone does not mandate that the hearing be conducted in a
sealed courtroom.
We are left with the questions of whether the First
Amendment guarantees access to the hearing and, if so, whether the
sealing of argument is justified by a compelling interest. The
first question is easily answered: There can be no question that
the First Amendment guarantees a right of access by the public to
oral arguments in the appellate proceedings of this court. Such
hearings have historically been open to the public, and the very
15
considerations that counsel in favor of openness of criminal trial
support a similar degree of openness in appellate proceedings. Cf.
In re Knight Publ’g, 743 F.3d at 234 (noting “strong presumption in
favor of openness” in criminal proceedings).
The second question is more difficult. As discussed
above, the Government’s interest in the security of classified
information is a compelling one, and, as we have noted previously,
Intervenors do not seek access to any classified information.
However, we believe that argument on several of the issues will not
require the discussion of classified information. We therefore
order that the oral argument in this appeal will be bifurcated.
The first portion of oral argument will take place in a courtroom
open to the press and general public. The following issues, and
only the following issues, will be discussed during that portion of
the argument:
• Whether this court has jurisdiction over the appeal;
• Whether separation of powers concerns mandate reversal of
the district court’s order;
• Whether compulsory process reaches an enemy combatant
held overseas.
While we believe that these issues can be effectively argued
without discussion of classified information, it is possible that
argument on these issues could lead to brief mention of classified
matters. We assume counsel will be mindful of this possibility and
will take care to avoid such references in open court. Should
16
counsel believe that reference to classified information is
necessary, such a discussion will be reserved to the second part of
oral argument, which will be conducted in a sealed courtroom.
Argument on all issues involving the discussion of classified
information will be reserved to this portion of the hearing.
Unquestionably, our decision to partially seal argument
infringes, albeit for good reasons, upon the rights of the press
and the public. We believe, however, that this harm can be
substantially ameliorated by the release of a redacted transcript
of the sealed hearing as soon as is practicable after the
conclusion of argument. This will be accomplished through the
following procedure. The sealed portion of the hearing will not be
recorded but rather will be transcribed by a court reporter. We
hereby direct the court reporter to produce a written transcript of
the sealed proceedings within 24 hours of the conclusion of
argument. This transcript will then be submitted to the
Government, which will proceed immediately with a classification
review and redaction of the transcript. The entire redacted
transcript shall be provided to the court for placement in the
public file no later than five business days after the submission
of the unredacted transcript to the Government. In order to
further limit the harm to the public’s right of access, we direct
17
the Government to provide the court with whatever portion of the
transcript has been reviewed and redacted to that point by noon of
each day between the submission of the unredacted transcript and
the release of the final redacted version.
III.
To summarize, we grant Intervenors’ motion to intervene
for a limited purpose. With respect to Intervenors’ motion for
access to certain portions of the record and oral argument, we
conclude (and Intervenors do not dispute) that all classified
information involved in this appeal will remain under seal. For
that reason, we deny the motion for access insofar as it concerns
the ex parte appendices. The press and general public will be
provided access to unclassified materials in the classified and
unclassified appendices after we have redacted those materials with
the aid of the Government’s submissions, which are due ten days
from the date of this order. As set forth above, the Government
must provide us with reasons for its proposed redactions of
unclassified materials and specifically identify those materials
that are classified. The certificate of confidentiality and motion
to seal argument, and the motion to seal the certificate and motion
18
to seal argument, are hereby unsealed and will be placed in the
public file.
Entered at the direction of Chief Judge Wilkins, with the
concurrences of Judge Widener and Judge Niemeyer.
FOR THE COURT
/s/ Patricia S. Connor
____________________________
Clerk
19