NORTH JERSEY MEDIA GROUP, INC.; New Jersey Law Journal
v.
John ASHCROFT, Attorney General of the United States; Michael Creppy, Hon.
John Ashcroft, Attorney General of the United States and Michael Creppy, Chief Immigration Judge of the United States, Appellants.
No. 02-2524.
United States Court of Appeals, Third Circuit.
Argued: September 17, 2002.
Filed: October 8, 2002.
Robert D. McCallum, Jr., Assistant Attorney General, Christopher J. Christie, United States Attorney, Gregory G. Katsas, (Argued), Deputy Assistant Attorney General, Sharon Swingle, Robert M. Loeb, Attorneys, Appellate Staff, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Appellants.
Steven R. Shapiro, Lucas Guttentag, Lee Gelernt (Argued), American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, Lawrence S. Lustberg, Shavar D. Jeffries, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, Edward Barocas, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, David Cole, Georgetown University Law Center, Washington, DC, Nancy Chang, Shayana D. Kadidal, Center for Constitutional Rights, New York, NY, for Appellees.
David A. Schulz, Clifford, Chance, Rogers & Wells, New York, NY, for Amicus-Appellees.
Before BECKER, Chief Judge, SCIRICA and GREENBERG, Circuit Judges.
OPINION OF THE COURT
BECKER, Chief Judge.
This civil action was brought in the District Court for the District of New Jersey by a consortium of media groups seeking access to "special interest" deportation hearings involving persons whom the Attorney General has determined might have connections to or knowledge of the September 11, 2001 terrorist attacks. This category was created by a directive issued by Michael Creppy, the Chief United States Immigration Judge, outlining additional security measures to be applied in this class of cases, including closing hearings to the public and the press. Named as defendants in the suit were Attorney General John Ashcroft and Chief Judge Creppy. The District Court found for the media plaintiffs and issued an order enjoining the Attorney General from denying access, from which he now appeals.
The District Court's order was accompanied by an opinion which provides the framework for this appeal, at the heart of which lay a number of conclusions. First, the Court held that the case was governed by the test developed in Richmond Newspapers, Inc. v. Virginia,
In its opinion in this case, the District Court rejected the Government's argument that administrative hearings in general, and deportation hearings in particular, are not subject to the Richmond Newspapers two-part "experience and logic" test because they are of a fundamentally different nature. Instead, the Court applied that test, which asks first whether a particular proceeding has a history of openness, and then whether openness plays a positive role in that proceeding. With respect to the experience inquiry, the District Court relied especially on a line of Third Circuit cases which has applied Richmond Newspapers to find access to a number of auxiliary criminal proceedings, as well as to civil cases. The Court also relied on two cases in which we applied Richmond Newspapers to determine whether access should be granted to administrative proceedings, although we concluded in each instance that there was no access. In short, the District Court reasoned that these cases supported application of Richmond Newspapers, and, applying Richmond Newspapers, found that there was a sufficient history of open deportation proceedings to satisfy the Richmond Newspapers experience test.
Turning to the logic prong, the District Court held that policy considerations strongly favored media access. Significantly, however, in evaluating the logic prong, the Court did not consider the policies militating against media access, including those identified in a declaration filed by Dale Watson, Counterterrorism Chief of the Federal Bureau of Investigation, which explained the danger of security breaches entailed in opening the hearings. In brief, the Watson Declaration represents that insight gleaned from open proceedings might alert vigilant terrorists to the United States' investigative tactics and could easily betray what knowledge the government does — or does not — possess. Watson submits that even details that seem innocuous in isolation, such as the names of those detained, might be pieced together by knowledgeable persons within the terrorist network, who could in turn shift activities to a yet-undiscovered terrorist cell. Because immigration judges cannot be expected accurately to assess the harm that might result from disclosing seemingly trivial facts, Watson explains, seeking closure on a case-by-case basis would ineffectively protect the nation's interests.
Although existing caselaw on the logic prong has discussed only the policies favoring openness, we are satisfied that the logic prong must consider the flip side of the coin. Indeed, the Supreme Court seems to have contemplated this, for in formulating the Richmond Newspapers test it asked "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Co. v. Superior Court,
While we believe that the notion that Richmond Newspapers applies is open to debate as a theoretical matter, we must yield to the prior precedent of this Court, and hence will apply it to the facts. We note, however, that we are not bound by dicta in those decisions, including the most far reaching, Whiteland Woods, L.P. v. Township of West Whiteland,
The only Circuit to deal with these issues has resolved them in favor of the media. See Detroit Free Press v. Ashcroft,
The most difficult case for the government is FMC v. South Carolina State Ports Authority, ___ U.S. ___,
We recognize that, at least since the 1960s, formalized deportation proceedings have borne an undeniable procedural resemblance to civil trials, and that, read broadly, Ports Authority's language might therefore suggest that the same First Amendment rights exist in each context. While we find the issue debatable, as we explain more extensively infra, we believe that Ports Authority's approach was inextricably tied to its underlying premise that sovereign immunity shields nonconsenting states from complaints brought by private persons, regardless of where private persons bring those complaints. In contrast, we find that there has never been a fundamental right of access to all government proceedings. Even today, many are closed by statute, including such frequent and important matters as Social Security hearings. Without a fundamental right of access comparable to nonconsenting states' right to freedom from private claims, we decline to loose Ports Authority from its Eleventh Amendment moorings.
We also disagree with the Sixth Circuit as to the import of the Richmond Newspapers logic prong. We note preliminarily that, in the jurisprudence developed thus far, the logic prong does not appear to do much work in the Richmond Newspapers approach, for we have not found a case in which a proceeding passed the experience test through its history of openness yet failed the logic test by not serving community values. Under the reported cases, the second prong of the Richmond Newspapers test has been applied to inquire whether openness plays a positive policy role in a given proceeding. But, as we have explained, that calculus perforce must take account of the flip side — the extent to which openness impairs the public good.
This case arises in the wake of September 11, 2001, a day on which American life changed drastically and dramatically. The era that dawned on September 11th, and the war against terrorism that has pervaded the sinews of our national life since that day, are reflected in thousands of ways in legislative and national policy, the habits of daily living, and our collective psyches. Since the primary national policy must be self-preservation, it seems elementary that, to the extent open deportation hearings might impair national security, that security is implicated in the logic test. When it is factored in, given due consideration to the attorney general's statements of the threat, we do not believe that the Richmond Newspapers logic prong test favors the media either.
As we will now explain in detail, we find that the application of the Richmond Newspapers experience and logic tests does not compel us to declare the Creppy Directive unconstitutional. We will therefore reverse the Order of the District Court.
I. BACKGROUND
A. The Creppy Directive
Shortly after the attacks of September 11, 2001, the President ordered a worldwide investigation into those atrocities and related terrorist threats to the United States. Over the course of this ongoing investigation, the government has become aware of numerous aliens who are subject to removal from the United States for violating immigration laws. The Immigration and Naturalization Service has detained and initiated removal proceedings against many of these individuals.
The Department of Justice, which oversees the INS, has identified some aliens whose situations are particularly sensitive and designated their hearings "special interest" cases. According to Dale L. Watson, the FBI's Executive Assistant Director for Counterterrorism and Counterintelligence, the designated aliens "might have connections with, or possess information pertaining to, terrorist activities against the United States." (Watson Dec.) For example, special interest cases include aliens who had close associations with the September 11 hijackers or who themselves have associated with al Qaeda or related terrorist groups.
The Department of Justice has reviewed these designations periodically and removed them in many cases that it determined were less sensitive than previously believed. For those cases that retain the "special interest" designation, however, Chief Immigration Judge Creppy issued a memorandum (the "Creppy Directive") implementing heightened security measures.1 The Directive requires immigration judges "to close the hearing[s] to the public, and to avoid discussing the case[s] or otherwise disclosing any information about the case[s] to anyone outside the Immigration Court." It further instructs that "[t]he courtroom must be closed for these cases — no visitors, no family, and no press," and explains that the restriction even "includes confirming or denying whether such a case is on the docket or scheduled for a hearing." In short, the Directive contemplates a complete information blackout along both substantive and procedural dimensions.
In closing special interest deportation hearings, the Government's stated purpose is to avoid disclosing potentially sensitive information to those who may pose an ongoing security threat to the United States and its interests. The Government represents that "if evidence is offered about a particular phone number link between a detainee and a number connected to a terrorist organization or member," the terrorists "will be on notice that the United States is now aware of the link" and "may even be able to determine what sources and methods the United States used to become aware of that link." (Watson Declaration.) Equally important, however, is "information that might appear innocuous in isolation [but that] can be fit into a bigger picture by terrorist groups in order to thwart the Government's efforts to investigate and prevent terrorism." (Id.) For example, information about how and why special interest aliens were detained "would allow the terrorist organizations to discern patterns and methods of investigation"; information about how such aliens entered the country "would allow the terrorist organization to see patterns of entry, what works and what doesn't"; and information "about what evidence the United States has against members of a particular cell collectively" would reveal to the terrorist organization which of its cells have been significantly compromised. (Id.)
The Government offers a litany of harms that might flow from open hearings. Most obviously, terrorist organizations could alter future attack plans, or devise new, easier ways to enter the country through channels they learn are relatively unguarded by the Department of Justice. They might also obstruct or disrupt pending proceedings by destroying evidence, threatening potential witnesses, or targeting the hearings themselves. Finally, if the government cannot guarantee a closed hearing, aliens might be deterred from cooperating with the ongoing investigation. See infra.
B. Present Litigation
From November 2001 to February 2002, reporters for the New Jersey Law Journal and Herald News ("the Newspapers") were repeatedly denied docket information for and access to deportation proceedings in Newark's Immigration Court. On March 6, 2002, the Newspapers filed a federal court challenge to the Creppy Directive, asserting that its mandated policy of closing every "special interest" case precluded the case-by-case treatment the First Amendment requires. They argued not only that individualized inquiries are proper and practical, but also that because the Directive permits special interest detainees themselves to disseminate information concerning their proceedings, its veil of secrecy is ineffective at best.2
The District Court applied the two-part First Amendment analysis set forth in Richmond Newspapers, Inc. v. Virginia,
In a subsequent order, the District Court denied the Government's motion for a stay pending appeal, and it clarified that its injunction has nationwide scope, applies to all proceedings regardless of whether plaintiffs seek to attend, and requires proceedings to be open to all members of the press and public. (Proceeding of June 5, 2002.) On June 17, 2002, this Court granted expedited review of the Government's appeal but denied a stay. A week later, however, the Supreme Court granted a stay of the District Court's injunction pending the final disposition of this appeal. We note jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1292(a)(1), and exercise plenary review over the District Court's legal conclusion that the First Amendment guarantees a right of access to deportation proceedings. See Rose Art Indus., Inc. v. Swanson,
II. APPLICABILITY OF RICHMOND NEWSPAPERS
In finding a First Amendment right of access to deportation hearings, the District Court employed the two-part test set forth in Richmond Newspapers and its progeny. The Government contends that the Richmond Newspapers test, developed as it was for criminal trials, has no proper application outside the judicial realm. It argues in the alternative that even if Richmond Newspapers provides the appropriate analytical framework, deportation proceedings cannot run its "experience and logic" gauntlet.
While we agree with the District Court's conclusion that Richmond Newspapers analysis is proper in the administrative context, we disagree with its application and hold that under that test, there is no First Amendment right to attend deportation proceedings.
A. Applicability to Article III Proceedings
In Richmond Newspapers,
The Supreme Court held that as "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open," id. at 575,
The Court also explained that this tradition of openness was no "quirk of history"; rather, it had long been recognized as an indispensable attribute of the trial process. Id. at 569,
The Richmond Newspapers First Amendment right of access to criminal trials, therefore, stemmed from an "uncontradicted history, supported by reasons as valid today as in centuries past." Id. at 573,
[T]wo helpful principles may be sketched. First, the case for a right of access has special force when drawn from an enduring and vital tradition of public entree to particular proceedings or information. Such a tradition commands respect in part because the Constitution carries the gloss of history. More importantly, a tradition of accessibility implies the favorable judgment of experience. Second, the value of access must be measured in specifics. Analysis is not advanced by rhetorical statements that all information bears upon public issues; what is crucial in individual cases is whether access to a particular government process is important in terms of that very process.
Id. at 589,
Despite Justice O'Connor's admonition that Richmond Newspapers does not have "any implications outside the context of criminal trials," Globe Newspaper Co. v. Superior Court,
First, because a tradition of accessibility implies the favorable judgment of experience, we have considered whether the place and process have historically been open to the press and general public.... Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question.
Id. at 8,
The Court first noted that, like criminal trials, pretrial proceedings had long been "conducted before neutral and detached magistrates [and had] been open to the public." Id. at 10,
Given that a majority of the Supreme Court has applied the Richmond Newspapers framework to pretrial proceedings and voir dire examinations, that approach clearly is not confined to the criminal trial itself, although each of the Supreme Court's applications has arisen in the criminal context. This Court has been less reticent in its extensions. First, in Publicker Industries, Inc. v. Cohen,
B. Applicability of Richmond Newspapers to Administrative Proceedings
The Government contends that while Richmond Newspapers properly applies to civil and criminal proceedings under Article III, the Constitution's text militates against extending First Amendment rights to non-Article III proceedings such as deportation. Its premise is one of expressio unius est exclusio alterius: Article III is silent on the question of public access to judicial trials, but the Sixth Amendment expressly incorporates the common law tradition of public trials, thus supporting the notion that the First Amendment likewise incorporates that tradition for Article III purposes. (Gov't Brief at 21-22.) Articles I and II, conversely, do address the question of access, and they do not provide for Executive or Legislative proceedings to be open to the public.4 To the Government, the absence of an explicit guarantee of access for Article I and II proceedings (as exists in Article III) gives rise to a distinction with a difference because, without an incorporating provision parallel to the Sixth Amendment, the Framers must have intended to deny the public access to political proceedings.
The Government's suggestion is ultimately that we should not apply Richmond Newspapers where the Constitution's structure dictates that no First Amendment right applies, and should instead let the political branches (here, the Executive, acting through the Justice Department) determine the proper degree of access to administrative proceedings. See Capital Cities Media, Inc. v. Chester,
Our own jurisprudence precludes this approach. In Publicker, for example, we found a First Amendment right to attend civil trials, proceedings to which the Sixth Amendment is entirely inapplicable. If an express provision were necessary to incorporate into the Bill of Rights the common law tradition of access to trials, Publicker would have come out the other way, a result the Government does not urge. Moreover, the Richmond Newspapers Court itself apparently did not view the Sixth Amendment as a critical incorporating provision. That case's incorporation language states only that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open." Richmond Newspapers,
At all events, after Publicker, the Sixth Amendment cannot be the sole source of a First Amendment right of access, and our precedents likewise foreclose the Government's attempt to confine the Richmond Newspapers approach to the Article III context. In Capital Cities Media,
Similarly, in First Amendment Coalition v. Judicial Inquiry & Review Board,
III. UNDER RICHMOND NEWSPAPERS, IS THERE A FIRST AMENDMENT RIGHT TO ATTEND DEPORTATION HEARINGS?
Richmond Newspapers requires that when a court assesses a claimed First Amendment right of access, it must "consider[ ] whether the place and process have historically been open to the press and general public ... [and] whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise II,
A. The "Experience" Test
1. Is there an historical right of access to government proceedings generally?
In Richmond Newspapers,
The history of access to political branch proceedings is quite different. The Government correctly notes that the Framers themselves rejected any unqualified right of access to the political branches for, as we explained in Capital Cities Media,
Congressional practice confirms that there is no general right of public access to governmental proceedings or information. The members of the First Congress did not open their own proceedings to the public — the Senate met behind closed doors until 1794, and the House did likewise until after the War of 1812.6 See Watkins, Open Meetings under the Arkansas Freedom of Information Act, 38 Ark. L.Rev. 268, 271 & n.96. While both Houses thereafter opened floor deliberations, committee sessions remained closed and were not routinely opened to the public until the mid-1970s. Id. at 272. Even today, the Senate operates under a resolution limiting public access to "routine Senate records" for 20 years after their creation and to "sensitive records, such as investigative files" for 50 years after their creation, and each Senate committee retains the right to extend that access period for its own records. S. Rep. 474, 96th Cong. 2nd Sess., 126 Cong. Rec. S15209-10 (daily ed., Dec. 1, 1980), U.S.Code Cong. & Admin.News 1996, p. 4659. See generally Capital Cities Media,
This tradition of closing sensitive proceedings extends to many hearings before administrative agencies. For example, although hearings on Social Security disability claims profoundly affect hundreds of thousands of people annually, and have great impact on expenditure of government funds, they are open only to "the parties and to other persons the administrative law judge considers necessary and proper." 20 C.F.R. § 404.944. Likewise, administrative disbarment hearings are often presumptively closed. See, e.g., 12 C.F.R. § 19.199 (Office of Comptroller of Currency); 12 C.F.R. § 263.97 (Federal Reserve Board of Governors). The Government lists more than a dozen other examples of mandatorily or presumptively closed administrative proceedings. For instance, hearings on charges of wrongdoing may often be closed at the administrator's discretion for "good cause," to protect the "public interest," or under similar standards. See, e.g., 5 C.F.R. § 185.132(d) (Office of Personnel Management); 10 C.F.R. § 13.30(d) (Nuclear Regulatory Commission); 13 C.F.R. § 142.21(d) (Small Business Administration); 28 C.F.R. § 68.39(a) (Department of Justice); 31 C.F.R. § 500.713(a) (Office of Foreign Asset Control); 38 C.F.R. § 42.30(d) (Office of Veterans Affairs). Hearings on adverse passport decisions by the Department of State "shall be private." 22 C.F.R. § 51.87. See also 5 C.F.R. § 2638.505(e)(2) (hearings on ethics charges against government employees may be closed "in the best interests of national security, the respondent employee, a witness, the public or other affected persons"); 10 C.F.R. § 1003.62(a) (hearings before Department of Energy Office of Hearings and Appeals may be closed at discretion of administrator).
Faced with this litany of administrative hearings that are closed to the public, the Newspapers cannot claim a general First Amendment right of access to government proceedings without urging a judicially-imposed revolution in the administrative state. They wisely avoid that tactic, at least directly.7 Instead they submit that, despite frequent closures throughout the administrative realm, deportation proceedings in particular boast a history of openness sufficient to meet the Richmond Newspapers requirement. We now assess that claim, and find that we disagree.
2. Is the history of open deportation proceedings sufficient to satisfy the Richmond Newspapers "experience" prong?
For a First Amendment right of access to vest under Richmond Newspapers, we must consider whether "the place and process have historically been open to the press and general public," because such a "tradition of accessibility implies the favorable judgment of experience." Press-Enterprise II,
The strongest historical evidence of open deportation proceedings is that since the 1890s, when Congress first codified deportation procedures, "[t]he governing statutes have always expressly closed exclusion hearings, but have never closed deportation hearings."8 (Newspapers' Br. at 30-31.) In 1893, the Executive promulgated the first set of immigration regulations, which expressly stated that exclusion proceedings shall be conducted "separate from the public." See Treasury Dept., Immigration Laws and Regulations 4 (Washington D.C., Gov't Printing Office 1893). Congress codified those regulations in 1903 and, since that time, it has repeatedly reenacted provisions closing exclusion hearings.9 In contrast, although Congress codified the regulations governing deportation proceedings in 1904 and has reenacted them many times since, it has never authorized the general closure that has long existed in the exclusion context.10
The Newspapers submit that under the rule of construction expressio unius est exclusio alterius, Congress's practice of closing exclusion proceedings while remaining silent on deportation proceedings creates a presumption that it intended deportation proceedings to be open. In support of this interpretation, they point out that the current Justice Department regulations provide explicitly that "[a]ll hearings, other than exclusion hearings, shall be open to the public except that ... [f]or the purpose of protecting ... the public interest, the Immigration Judge may limit attendance or hold a closed hearing." 8 C.F.R. § 3.27. From this they conclude that the regulations state explicitly what the statutes had long said implicitly, namely that deportation hearings are to be open unless an individualized case is made for closure.
But there is also evidence that, in practice, deportation hearings have frequently been closed to the general public. From the early 1900s, the government has often conducted deportation hearings in prisons, hospitals, or private homes, places where there is no general right of public access.11 Even in recent times, the government has continued to hold thousands of deportation hearings each year in federal and state prisons. See H.R.Rep. No. 104-469, pt. I, at 124 (1996). Moreover, hearings involving abused alien children are closed by regulation no matter where they are held, and those involving abused alien spouses are closed presumptively. See 8 C.F.R. § 3.27(c).
We ultimately do not believe that deportation hearings boast a tradition of openness sufficient to satisfy Richmond Newspapers. In Richmond Newspapers itself, the Court noted an "unbroken, uncontradicted history" of public access to criminal trials in Anglo American law running from "before the Norman Conquest" to the present, and it emphasized that it had not found "a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country."
The tradition of open deportation hearings is simply not comparable. While the expressio unius distinction between exclusion and deportation proceedings is a tempting road to travel, we are unwilling effectively to craft a constitutional right from mere Congressional silence, especially when faced with evidence that some deportation proceedings were, and are, explicitly closed to the public or conducted in places unlikely to allow general public access. Although the 1964 Department of Justice regulations did create a presumption of openness, a recent — and rebuttable — regulatory presumption is hardly the stuff of which Constitutional rights are forged.
The Newspapers contend, quite correctly, that at least within the geographic confines of the Third Circuit, a showing of openness at common law is not required. See, e.g., United States v. Criden,
In Criden,
We do not think that historical analysis is relevant in determining whether there is a first amendment right of access to pretrial criminal proceedings. We recognize that, at common law, the public apparently had no right to attend pretrial criminal proceedings. On the other hand, there was no counterpart at common law to the modern suppression hearing.... [W]e proceed to examine the current role of the first amendment and the societal interests in open pretrial criminal proceedings.
The Newspapers' reliance on our decision in Simone,
Finally, despite our potentially misleading language in Whiteland Woods,
Although we are confident that our precedents do not allow us to find a First Amendment right of access to deportation hearings absent strong historical evidence, the Supreme Court's recent ruling in FMC v. South Carolina Ports Authority,
Ports Authority had not been decided when the District Court heard this case, and the Newspapers now assert that it forces us to distinguish the procedures in deportation hearings from those in civil trials before finding that different rights exist in each context. Were this suggestion correct, we would indeed be hard pressed to find meaningful differences between the two types of proceedings. A deportation proceeding is commenced with a "Notice to Appear," see 8 C.F.R. § 239.1, a document strongly resembling a civil complaint. In turn, a respondent may proffer affirmative defenses. See Martinez-Montoya v. INS,
Despite these undeniable similarities, however, we do not believe that the Supreme Court intended in Ports Authority to import the full panoply of constitutional rights to any administrative proceeding that resembles a civil trial. The Court's reasoning was based fundamentally on its enduring presumption "that the Constitution was not intended to `raise up' any proceedings against the States that were `anomalous and unheard of when the Constitution was adopted.'" Ports Authority,
In contrast, there is no fundamental right to attend government proceedings underpinning the Newspapers' alleged right to attend deportation proceedings. See discussion supra. This is not a situation where the Framers contemplated a perfectly transparent government, only to have deportation proceedings, which they did not foresee, jeopardize that intended scheme. This is also not a situation involving allegations that the government assigned to an administrative agency a function that courts historically performed in order to deprive the public of an access right it once possessed. And most importantly, this is not a situation that risks affront to states'"residual and inviolable sovereignty," id. at 1870 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison)), the concern that motivated the Ports Authority Court. We therefore decline to loose the Ports Authority analysis from its Eleventh Amendment moorings. Instead of analogizing procedures, the proper approach is that developed in Richmond Newspapers, and as we have explained, under that test we find an insufficient tradition of openness to support the right.
3. Relaxing the Richmond Newspapers experience requirement would lead to perverse consequences.
As we have explained in detail supra, there is no fundamental right of access to administrative proceedings. Any such access, therefore, must initially be granted as a matter of executive grace.12 The Government contends that by relaxing the need for a "1000-year tradition of public access," (Gov't Br. at 35), we would permanently constitutionalize a right of access whenever an executive agency does not consistently bar all public access to a particular proceeding. We do not adopt this reasoning in its entirety, for as we have discussed supra, we have sometimes found a constitutional right of access to proceedings that did not exist at common law. See, e.g., Simone,
Nevertheless, we agree with the Government that a rigorous experience test is necessary to preserve the "basic tenet of administrative law that agencies should be free to fashion their own rules of procedure." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,
At all events, we would find this outcome incredible in an area of traditional procedural flexibility, and we are unwilling to reach it when a reasonable alternative is present. By insisting on a strong tradition of public access in the Richmond Newspapers test, we preserve administrative flexibility and avoid constitutionalizing ambiguous, and potentially unconsidered, executive decisions.
IV. DOES THE RICHMOND NEWSPAPERS "LOGIC" PRONG, PROPERLY APPLIED, SUPPORT A RIGHT OF ACCESS?
Even if we could find a right of access under the Richmond Newspapers logic prong, absent a strong showing of openness under the experience prong, a proposition we do not embrace, we would find no such right here. The logic test compels us to consider "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise II,
In Press-Enterprise II, the case that formalized the Richmond Newspapers test, the Court identified several reasons that openness plays a significant positive role in preliminary hearings. It recognized that "[b]ecause of its extensive scope, the preliminary hearing is often the final and most important step in the criminal proceeding," and in many cases it "provides the sole occasion for public observation of the criminal justice system." Id. at 12,
In subsequent cases, this Court has noted six values typically served by openness: "[1] promotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; [2] promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; [3] providing a significant community therapeutic value as an outlet for community concern, hostility and emotion; [4] serving as a check on corrupt practices by exposing the judicial process to public scrutiny; [5] enhancement of the performance of all involved; and [6] discouragement of perjury." Simone,
We agree with the District Court and the Sixth Circuit that openness in deportation hearings performs each of these salutary functions, but we are troubled by our sense that the logic inquiry, as currently conducted, does not do much work in the Richmond Newspapers test. We have not found a case in which a proceeding passed the experience test through its history of openness yet failed the logic test by not serving community values. Under the reported cases, whenever a court has found that openness serves community values, it has concluded that openness plays a "significant positive role" in that proceeding. But that cannot be the story's end, for to gauge accurately whether a role is positive, the calculus must perforce take account of the flip side — the extent to which openness impairs the public good. We note in this respect that, were the logic prong only to determine whether openness serves some good, it is difficult to conceive of a government proceeding to which the public would not have a First Amendment right of access. For example, public access to any government affair, even internal CIA deliberations, would "promote informed discussion" among the citizenry. It is unlikely the Supreme Court intended this result.
In this case the Government presented substantial evidence that open deportation hearings would threaten national security. Although the District Court discussed these concerns as part of its strict scrutiny analysis, they are equally applicable to the question whether openness, on balance, serves a positive role in removal hearings.13 We find that upon factoring them into the logic equation, it is doubtful that openness promotes the public good in this context.
The Government's security evidence is contained in the declaration of Dale Watson, the FBI's Executive Assistant Director for Counterterrorism and Counterintelligence. Watson presents a range of potential dangers, the most pressing of which we rescribe here.
First, public hearings would necessarily reveal sources and methods of investigation. That is information which, "when assimilated with other information the United States may or may not have in hand, allows a terrorist organization to build a picture of the investigation." (Watson Dec. at 4.) Even minor pieces of evidence that might appear innocuous to us would provide valuable clues to a person within the terrorist network, clues that may allow them to thwart the government's efforts to investigate and prevent future acts of violence. Id.
Second, "information about how any given individual entered the country (from where, when, and how) may not divulge significant information that would reveal sources and methods of investigation. However, putting entry information into the public realm regarding all `special interest cases' would allow the terrorist organization to see patterns of entry, what works and what doesn't." Id. That information would allow it to tailor future entries to exploit weaknesses in the United States immigration system.
Third, "[i]nformation about what evidence the United States has against members of a particular cell collectively will inform the terrorist organization as to what cells to use and which not to use for further plots and attacks." Id. A related concern is that open hearings would reveal what evidence the government lacks. For example, the United States may disclose in a public hearing certain evidence it possesses about a member of a terrorist organization. If that detainee is actually involved in planning an attack, opening the hearing might allow the organization to know that the United States is not yet aware of the attack based on the evidence it presents at the open hearing. Id.
Fourth, if a terrorist organization discovers that a particular member is detained, or that information about a plot is known, it may accelerate the timing of a planned attack, thus reducing the amount of time the government has to detect and prevent it. If acceleration is impossible, it may still be able to shift the planned activity to a yet-undiscovered cell. Id. at 7.
Fifth, a public hearing involving evidence about terrorist links could allow terrorist organizations to interfere with the pending proceedings by creating false or misleading evidence. Even more likely, a terrorist might destroy existing evidence or make it more difficult to obtain, such as by threatening or tampering with potential witnesses. Should potential informants not feel secure in coming forward, that would greatly impair the ongoing investigation. Id.
Sixth, INS detainees have a substantial privacy interest in having their possible connection to the ongoing investigation kept undisclosed. Id. at 8. "Although some particular detainees may choose to identify themselves, it is important to note that as to all INS detainees whose cases have been placed in the special interest category concerns remain about their connection to terrorism, and specifically to the worst attack ever committed on United States soil. Although they may eventually be found to have no connection to terrorist activity, discussion of the causes of their apprehension in open court would forever connect them to the September 11 attacks." Id. While this stigma concern exists to some extent in many criminal prosecutions, it is noteworthy that deportation hearings are regulatory, not punitive, see Carlson v. Landon,
Finally, Watson represents that "the government cannot proceed to close hearings on a case-by-case basis, as the identification of certain cases for closure, and the introduction of evidence to support that closure, could itself expose critical information about which activities and patterns of behavior merit such closure." (Watson Dec. at 8-9.) Moreover, he explains, given judges' relative lack of expertise regarding national security and their inability to see the mosaic, we should not entrust to them the decision whether an isolated fact is sensitive enough to warrant closure.
The Newspapers are undoubtedly correct that the representations of the Watson Declaration are to some degree speculative, at least insofar as there is no concrete evidence that closed deportation hearings have prevented, or will prevent, terrorist attacks.14 But the Richmond Newspapers logic prong is unavoidably speculative, for it is impossible to weigh objectively, for example, the community benefit of emotional catharsis against the security risk of disclosing the United States' methods of investigation and the extent of its knowledge. We are quite hesitant to conduct a judicial inquiry into the credibility of these security concerns, as national security is an area where courts have traditionally extended great deference to Executive expertise. See, e.g., Zadvydas v. Davis,
We are keenly aware of the dangers presented by deference to the executive branch when constitutional liberties are at stake, especially in times of national crisis, when those liberties are likely in greatest jeopardy. On balance, however, we are unable to conclude that openness plays a positive role in special interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension.
V. CONCLUSION
Whatever the outer bounds of Richmond Newspapers might be, they do not envelop us here. Deportation proceedings' history of openness is quite limited, and their presumption of openness quite weak. They plainly do not present the type of "unbroken, uncontradicted history" that Richmond Newspapers and its progeny require to establish a First Amendment right of access. We do not decide that there is no right to attend administrative proceedings, or even that there is no right to attend any immigration proceeding. Our judgment is confined to the extremely narrow class of deportation cases that are determined by the Attorney General to present significant national security concerns. In recognition his experience (and our lack of experience) in this field, we will defer to his judgment. We note that although there may be no judicial remedy for these closures, there is, as always, the powerful check of political accountability on Executive discretion.
The importance of this case has not escaped us. As we approached it, we were acutely aware that the countervailing positions of the parties go to the heart of our institutions, our national values, and the republic itself. Commenting upon the great national dilemma in which this case ineluctably embroils us — the eternal struggle between liberty and security — a number of newspapers have editorialized favorably upon Judge Keith's eloquent language in the Detroit Free Press case:
"Democracies die behind closed doors,"... "When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation."
Others have been less impressed. Michael Kelly has written in the Washington Post:
"Democracies die behind closed doors". So they do, sometimes. But far more democracies have succumbed to open assaults of one sort or another — invasions from without, military coups and totalitarian revolutions from within — than from the usurpation-by-in-camera-incrementalism that Judge Keith fears.
Democracy in America does at this moment face a serious threat. But it is not the threat the judge has in mind, at least not directly. It is true that last September's unprecedented mass-slaughter of American citizens on American soil inevitably forced the government to take security measures that infringed on some rights and privileges. But these do not in themselves represent any real threat to democracy. A real threat could arise, however, should the government fail in its mission to prevent another September 11. If that happens, the public will demand, and will get, immense restrictions on liberties.
Although Mr. Kelly ultimately sided with openness on a case-by-case basis, we find his quoted statements powerful. They certainly seem appropriate to the decision to close the deportation hearings of those who may have been affiliated with the persons responsible for the events of September 11th, all of the known perpetrators of which were aliens. And they are consonant with the reality that the persons most directly affected by the Creppy Directive are the media, not the aliens who may be deported. As always, these aliens are given a heavy measure of due process — the right to appeal the decision of the Immigration Judge (following the closed hearing) to the Board of Immigration Appeals (BIA) and the right to petition for review of the BIA decision to the Regional Court of Appeals. See also INS v. St. Cyr,
Because we find that open deportation hearings do not pass the two-part Richmond Newspapers test, we hold that the press and public possess no First Amendment right of access. In the absence of such a right, we need not reach the subsequent questions whether the Creppy Directive's closures would pass a strict scrutiny analysis and whether the District Court's "national in scope" injunction was too broad.
The judgment of the District Court will be reversed.
Notes:
Notes
The Immigration and Nationality Act charges the Attorney General with the "administration and enforcement" of "all [ ] laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a) (1994). The Act authorizes the Attorney General to remove aliens from the United States for various reasons, including violation of the immigration lawsId. at § 1231. It also permits him to prescribe "such regulations ... as he deems necessary for carrying out his authority," id. at § 1103(a)(3), and provides for removal proceedings to be conducted by immigration judges within the Executive Branch "under regulations prescribed by the Attorney General." Id.
Pursuant to this authority, the Attorney General in 1964 promulgated a regulation governing public access to removal and other administrative hearings that has remained substantially unchanged. It mandates the closure of certain hearings, such as those involving abused alien children, and permits the closure of all other hearings to protect "witnesses, parties, or the public interest." 8 C.F.R. § 3.27 (2002) (modern codification). The Creppy Directive was issued pursuant to this regulation.
Although the Creppy Directive did not itself prohibit aliens and their counsel from themselves disclosing information about special interest hearings, a recently promulgated regulation authorizes immigration judges to issue protective orders and seal records as necessary to protect sensitive "law enforcement or national security information."See 67 Fed. Reg. 36799, 36799 (May 28, 2002). As this regulation took effect on the day the District Court rendered its decision, it played no role in that opinion.
Although the Supreme Court has not addressed the right to attend civil trials, each Court of Appeals to examine this question has concluded thatRichmond Newspapers applies and that a First Amendment right exists. See, e.g., Westmoreland v. CBS,
The only constitutionalized access requirement vis-a-vis the Executive is that the President "from time to time give to the Congress Information of the State of the Union." (U.S. Const.Art. II, § 3.) The Constitution also requires Congress to publish a "regular Statement and Account of the Receipts and Expenditures of all public Money," (U.S. Const. art. I, § 9, cl. 7), and instructs each House of Congress to publish a journal of proceedings from which it may withhold "such Parts as it may in [its] Judgment require Secrecy." (U.S. Const. art. I, § 5, cl. 3)
The Government submits thatFirst Amendment Coalition actually stands for the opposite proposition: that we should not apply Richmond Newspapers to any administrative proceeding. It asserts that when we said "[t]hese administrative proceedings ... do not have a long history of openness," our emphasis was on "proceedings." Such an emphasis would distinguish administrative proceedings from civil and criminal trials, and would imply that no administrative proceeding could make the historical showing necessary under Richmond Newspapers. But this interpretation is both incorrect and misplaced. It is incorrect because the prior sentence referred to the "fundamentally different procedures of judicial disciplinary boards," id., so that when we said that "[t]hese administrative proceedings" lacked history, we clearly referred only to proceedings before judicial disciplinary boards and not to administrative proceedings generally. It is misplaced because even if the Government were correct that administrative proceedings generally lack history, that argument properly addresses the "experience" prong of the Richmond Newspapers test itself. Our immediate concern is the antecedent issue of whether to apply that test.
Indeed, it is interesting to note that our democracy wascreated behind closed doors, as the delegates at the Constitutional Convention in Philadelphia in 1787 excluded the public from their proceedings.
Although the Newspapers do not argue directly for a general right of access to government proceedings, they maintain thatFMC v. South Carolina Ports Authority,
Although both exclusion and deportation hearings are now formally styled "removal" hearings,see Chi Thon Ngo v. INS,
See, e.g., Act of March 3, 1903 § 25 (Ch. 1012, 32 Stat. 1213); Act of February 20, 1907 § 25 (Ch. 1134, 34 Stat. 898); 1952 Immigration and Nationality Act, 66 Stat. 163, §§ 236, 242 (same); Treasury Department, Immigration Laws and Regulations 3 (1893); Treasury Department, Immigration Laws and Regulations 3 (1895); Treasury Department, Immigration Laws and Regulations 3 (1898); Treasury Department, Immigration Laws and Regulations 3 (1900); Treasury Department, Immigration Laws and Regulations 3 (1902); Treasury Department, Immigration Laws and Regulations 3 (1903); Bureau of Immigration, Department of Commerce and Labor, Immigration Laws and Regulations 3, 9 (1904); Bureau of Immigration, Department of Commerce and Labor, Immigration Laws and Regulations 3 (1906); Bureau of Immigration and Naturalization, Department of Commerce and Labor, Immigration Laws and Regulations 34 (1907); Bureau of Immigration, Department of Labor, Immigration Laws; Rules of May 1, 1917, 33 (1919); 8 C.F.R. pts. 12 & 19 (1938); 8 C.F.R. pt. 150 (1941 Supp.); 12 Fed.Reg. 5108 (July 30, 1947); 8 C.F.R. pt. 130 (1949); 32 Fed.Reg. 9628 (1967) codified at 8 C.F.R. pt. 236 (1968).
See, e.g., Act of March 3, 1903 § 25 (Ch. 1012, 32 Stat. 1213); Act of February 20, 1907 § 25 (Ch. 1134, 34 Stat. 898); Act of May 10, 1920 (Ch. 174, 41 Stat. 593); Act of May 26, 1924 (Ch. 190, 43 Stat. 153); 1952 Immigration and Nationality Act, 66 Stat. 163, § 242; Bureau of Immigration, Department of Commerce and Labor, Immigration Laws and Regulations 3, 9 (1904); Bureau of Immigration and Naturalization, Department of Commerce and Labor, Immigration Laws and Regulations 34 (1907); Bureau of Immigration, Department of Labor, Immigration laws; Rules of May 1, 1917, 33 (1919); 8 C.F.R. pt. 19 (1938); 8 C.F.R. pt. 150 (1941 Supp.); 9 Fed.Reg. 11884 (Sept. 19, 1944) (amendment to INS regulations governing deportation hearings, codified at 8 C.F.R. pt. 150 (1944 Supp.)); 10 Fed.Reg. 8096 (Aug. 1, 1945) (codified at 8 C.F.R. pt. 150 (1945 Supp)); 12 Fed.Reg. 5114 (July 30, 1947) (codified at 8 C.F.R. pt. 150 (1947 Supp.)); 8 C.F.R. pt. 150 (1949); 17 Fed.Reg. 11512 (Dec. 19, 1952) (codified at 8 C.F.R. pt. 242 (1952)); 22 Fed.Reg. 9795 (Dec. 6, 1957) (codified at 8 C.F.R. pt. 242 (1958)); 22 Fed.Reg. 9519 (Nov. 28, 1957) (codified at 8 C.F.R. pt. 242 (1958)).
The Newspapers contend that there is no evidence that hearings conducted in hospitals, prisons, and private homes were closed to the public. The Sixth Circuit agreed, concluding that this evidence does not "even hint that the public could not attend a hearing [in these places] .... Certainly, one could imagine family and friends being present."Detroit Free Press,
The Newspapers disagree, arguing that "theconstitutional right of access under the First Amendment does not, and could not, turn on whether the legislature has chosen to supply that right." We believe this reasoning to be precisely backwards, for Richmond Newspapers requires a tradition of access before recognizing a constitutional right to that access. Given that order of events, there must perforce be a period of time during which access to a particular proceeding is not constitutionally compelled, although during that period the executive could, of course, grant access as a matter of grace.
We recognize that, under our approach, there is an evidentiary overlap between theRichmond Newspapers logic prong and the subsequent "compelling government interest" strict scrutiny investigation necessary upon a finding of a First Amendment access right. Nonetheless, the inquiries are not redundant because it is possible for openness to serve a positive role under a balanced logic prong even though the government has a compelling interest in closure. This would simply require that the policy rationales supporting openness be even more compelling than those supporting closure.
The Newspapers contend that speculative evidence is insufficient to withstand strict scrutinySee Press-Enterprise II,
It is worth clarifying that we do not here defer to the Executive on the basis of its plenary power over immigration. We do not question that the "power to expel or exclude aliens" is "a fundamental sovereign attribute... largely immune from judicial control,"Fiallo v. Bell,
In INS v. Chadha,
SCIRICA, Circuit Judge, dissenting.
At issue is not whether some or all deportation hearings of special interest aliens should be closed, but who makes that determination. The answer depends on how we interpret the First Amendment of the Constitution.
The Constitution is silent on the right to public access. But the Supreme Court has framed a qualified right of access that may be overcome by sound reasons. Because no reason is more compelling than national security, closure of special interest alien deportation hearings may well be warranted.
The Supreme Court's test in Richmond Newspapers — when a right of access attaches to a particular type of proceeding and whether it may be overcome-applies here. Therefore, I agree with the majority that this test applies to deportation hearings.1 But I believe the requirements of that test are met. Consequently, I would find a qualified right of access to deportation hearings. Because I believe that Immigration Judges can make these determinations with substantial deference to national security, I would affirm the District Court's judgment.2
I. Experience
The Supreme Court has articulated a functional inquiry to determine whether "the place and process have historically been open to the press and general public." Press-Enterprise Co. v. Superior Court,
Department of Justice regulations, enacted in 1964, provide express approval for presumptively open hearings. See 8 C.F.R. § 242.16(a) (1964) ("All hearings, other than exclusion hearings, shall be open to the public except that ... [f]or the purpose of protecting ... the public interest, the Immigration Judge may limit attendance or hold a closed hearing."). Although deportation hearings have been only presumptively open, Richmond Newspapers itself only recognizes a qualified right of access for criminal proceedings, which may be restricted by a countervailing public interest. Richmond Newspapers, Inc. v. Virginia,
The Supreme Court has noted that we must assess history "because a tradition of accessibility implies the favorable judgment of experience." Press-Enterprise II,
Notably, Press-Enterprise II relies upon nineteenth and twentieth century history to find a tradition of openness for criminal preliminary hearings.
Furthermore, the Supreme Court has recognized that the Founders "could not have anticipated the vast growth of the administrative state." Fed. Mar. Comm'n v. S.C. State Ports Auth.,
The Supreme Court also noted in South Carolina Ports Authority that some administrative adjudications share "numerous common features" with civil judicial proceedings, including an adversarial nature. Id. at 1872-73 (citing Butz v. Economou,
That the historical tradition supports access to deportation hearings does not imply the existence of a qualified right of access for all administrative proceedings.9 For example, Social Security benefits claim proceedings are distinguishable. They "are inquisitorial rather than adversarial," in that the Administrative Law Judge undertakes multiple roles as the investigator, counselor, and adjudicator. Sims v. Apfel,
The differences between courts and agencies are nowhere more pronounced than in Social Security proceedings. Although many agency systems of adjudication are based to a significant extent on the judicial model of decisionmaking, the SSA is perhaps the best example of an agency that is not.
Id. at 110,
Congress has provided for presumptively open deportation proceedings from the moment that it first enacted an immigration statutory framework. This century of unbroken openness, especially within the nascent tradition of the administrative state, "implies the favorable judgment of experience" under the Richmond Newspapers test.
II. Logic
Public access to deportation hearings serves the same positive functions as does openness in criminal and civil trials. But the logic inquiry cannot consist merely of a recitation of the factors supporting open proceedings. "An assertion of the prerogative to gather information must ... be assayed by considering the information sought and the opposing interests invaded." Richmond Newspapers,
The issue in this case is "whether the press and public have a First Amendment right to attend deportation hearings." Majority Op. at 209. The logic analysis set forth by the Supreme Court is directed at a particular structural type of proceeding — in this case, deportation hearings — not a subset based on specific designations such as terrorism. In Globe Newspaper, the Court stated this point most clearly. Appellees in that case sought to limit the Richmond Newspapers analysis to rape trials. The dissent in Globe Newspaper cited evidence of "a long history of exclusion of the public from trials involving sexual assaults, particularly those against minors."
At this stage, we must consider the value of openness in deportation hearings generally, not its benefits and detriments in "special interest" deportation hearings in particular. If a qualified right of access is found to attach to deportation hearings generally, the analysis then turns to whether particular issues raised in individual cases override the general limited right of access.
Were the logic analysis focused only on special interest cases, I would agree that national security would likely trump the arguments in favor of access. Although paramount in certain deportation cases — like terrorism — national security is not generally implicated in the panoply of deportation hearings that occur throughout the United States. There are many grounds for deportation — marriage fraud, moral turpitude convictions, and aggravated felonies, to name a few — that do not ordinarily implicate national security.12 See 8 U.S.C. § 1227(a).
Accordingly, the demands of national security under the logic prong of Richmond Newspapers do not provide sufficient justification for rejecting a qualified right of access to deportation hearings in general. To conclude otherwise would permit concerns relevant only to a discrete class of cases to determine there is no qualified right of access to any of the broad range of deportation proceedings, a departure from Richmond Newspapers. Whether national security interests justify closure of individual deportation hearings is a question properly addressed in the next step's more particularized inquiry.
III. Government Interests
Having found a qualified right of access to deportation hearings, the question remains whether the government has a sufficient justification to "override the qualified First Amendment right of access" by application of the Creppy Directive. Press-Enterprise II,
Where a qualified right of access has been found, courts ordinarily have required a substantial showing to deny access. "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,
The District Court found the Creppy Directive failed to pass muster under this test because, inter alia,13 it was "not persuaded that the more narrow method of in camera disclosure of sensitive evidence... is not an acceptable means of avoiding a compromise of the government's investigation." N. Jersey Media Group, Inc. v. Ashcroft,
The government contends it is entitled to greater deference than is captured in this test because of two independent considerations. First, it contends it enjoys broad deference in the immigration area. And second, it argues the District Court erred in failing to afford it the special deference due the political branches in matters concerning national security.
The District Court undervalued the deference due the government in national security cases.14 Id. at 301-02. Courts have consistently recognized the need for "heightened deference to the judgments of the political branches with respect to matters of national security" when "terrorism or other special circumstances" are at issue. Zadvydas,
On the other hand, deference is not a basis for abdicating our responsibilities under the First Amendment. Rostker,
In this case, the government's asserted interest — national security — is exceedingly compelling. Closure in some — or perhaps all — special interest cases may be necessary and appropriate. In fact, the Department of Justice regulations, enacted in 1964, expressly authorize an Immigration Judge to hold closed hearings to protect the public interest. But the question remains whether the Creppy Directive's blanket closure rule — which removes the decision to close the hearing from the Immigration Judge on a case-by-case basis — is reasonably necessary for the protection of national security.
The government contends that a case-by-case closure of removal proceedings would permit the release of sensitive information, potentially revealing sources, patterns and methods of investigation. But there is no reason that all of the information related to a particular detainee cannot be kept from public view. Even the initial determination to close a proceeding — and to seal the entire record — can be accomplished in camera and under seal. The government need only make the required showing of special interest, under seal to the Immigration Judge, subject to appellate review. In making their determinations, Immigration Judges should grant substantial deference to national security interests. A similar procedural framework has proven workable with criminal prosecutions.15
The government maintains that these protections would be ineffective given the complexities in combating terrorism. It contends that individual, seemingly innocuous pieces of information, including a special interest alien's name, could be harmful to national security when compiled by terrorists into a mosaic. This seems correct. Nevertheless, the government could make the same argument to an Immigration Judge, who could determine, with substantial deference, that the apparently innocuous information provides appropriate grounds for closure.
The Watson Declaration also expresses the fear that open deportation hearings could provide evidence to terrorists that certain border crossings offer a greater chance for illegal entry than others. At oral argument, government counsel offered an intriguing hypothetical where open hearings would reveal evidence that 0-of-30 terrorists had entered the United States successfully through Philadelphia, while the rate was 30-of-30 in New York City. Here too, however, the government could make this argument during a closed preliminary hearing at which the Immigration Judge, with appropriate deference to national security, could assess the government's concerns about publicizing patterns of information.
The Creppy Directive and the pre-existing Department of Justice regulations both accommodate the government's national security responsibilities. But a case-by-case approach would permit an Immigration Judge to independently assess the balance of these fundamental values.16 Because this is a reasonable alternative, the Creppy Directive's blanket closure rule is constitutionally infirm.17 As the Supreme Court reasoned in Globe Newspaper:
We emphasize that our holding is a narrow one: that a rule of mandatory closure... is constitutionally infirm. In individual cases, and under appropriate circumstances, the First Amendment does not necessarily stand as a bar to the exclusion from the courtroom of the press and general public.... But a mandatory rule, requiring no particularized determinations in individual cases, is unconstitutional.
The stakes are high. Cherished traditions of openness have come up against the vital and compelling imperatives of national security. Because I believe national security interests can be fully accommodated on a case-by-case basis, I would affirm that part of the District Court's judgment.
IV. Nationwide Injunction
The final issue is whether the scope of the District Court's nationwide injunction is overbroad. The grant of a permanent injunction is reviewed for abuse of discretion. Nutrasweet Co. v. Vit-Mar Enters., Inc.,
Generally, a plaintiff is only entitled to relief for itself. Ameron, Inc. v. U.S. Army Corps of Eng'rs,
Furthermore, where the government is involved in litigation, a court should not "thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue." United States v. Mendoza,
In this case, the only plaintiffs are North Jersey Media Group and New Jersey Law Journal. An injunction protecting these plaintiffs alone would remedy any violation of plaintiffs' First Amendment rights. Enjoining enforcement of the Creppy Directive against other parties goes beyond providing relief to plaintiffs, and it deprives the Supreme Court of the opportunity to review the decisions of several courts of appeals. For these reasons, I would reverse the District Court's nationwide injunction.
Notes:
Accordingly, I agree with much of parts I and II of the court's learned opinion
At the same time, I would reverse the District Court's injunction as it applies nationwideSee Section IV, infra.
While exceptions exist for deportation hearings involving abused alien children and spouses, criminal trials have similar exceptions (e.g., there is no public right of access to juvenile criminal proceedings)
Our Court of Appeals has not framed a bright-line test for determining when a historical tradition is lengthy enough to satisfyRichmond Newspapers's experience prong. Our decisions suggest, however, that a more than one hundred year history of openness is sufficient to justify the conclusion that the experience prong has been satisfied. See, e.g., Whiteland Woods, L.P. v. Township of West Whiteland,
The Supreme Court has recognized that the "[m]ultiplication of federal administrative agencies and expansion of their functions to include adjudications which have serious impact on private rights [was] one of the dramatic legal developments of the [first half of the twentieth century]."Wong Yang Sung v. McGrath,
Congress crafted the system of deportation hearings during the early years of the modern administrative stateSee 1 Richard J. Pierce, Jr., Administrative Law Treatise § 1.4, at 9 (4th ed.2002) (describing the historical developments of administrative law); Marian L. Smith, An Overview of INS History, in A Historical Guide to the U.S. Government 305, 305 (George Thomas Kurian ed., 1998) (detailing how the United States did not begin to question its policy of "free and open immigration" until the late 1800s). Since then, deportation hearings have remained presumptively open.
I agree with the majority that theSouth Carolina Ports Authority holding may not extend "the full panoply of constitutional rights to any administrative proceeding that resembles a civil trial." Majority Op. at 215. The Supreme Court left this question for another day. But its comparison of administrative proceedings to civil trials remains instructive.
On this level, a deportation hearing "walks, talks, and squawks like a civil lawsuit."South Carolina Ports Authority,
As the Supreme Court has noted, there is a distinction between liberty and property interests in administrative hearingsWong Yang Sung,
Deportation hearings are adversarial proceedings that share many of the features common to civil judicial proceedings that the Supreme Court enunciated inSouth Carolina Ports Authority:
Federal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcript of testimony and exhibits together with the pleadings constitutes the exclusive record for decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record.
South Carolina Ports Authority,
The Supreme Court has held that deportation hearings require a heightened standard of proof, suggesting their unique position within the context of administrative proceedings. Woodby v. INS,
Courts have consistently appliedRichmond Newspapers in this way. See, e.g., Press-Enterprise II,
National security presents similar challenges in some criminal prosecutionsSee 50 U.S.C. § 1801 et seq. (authorizing the Foreign Intelligence Surveillance Court to issue search warrants in closed proceedings to protect national security). But national security interests have not been sufficient to reject a qualified right of access to criminal trials in general. Instead, if access can be limited, it is because "national security concerns about confidentiality may sometimes warrant closures" as a "countervailing interest[ ] ... sufficiently compelling to reverse this presumption of openness." Richmond Newspapers,
The District Court also found the Creppy Directive inadequate to the extent it is not fully effective at blocking public access to sensitive information, since the information might become public by any of several other meansN. Jersey Media Group,
Courts also must acknowledge the "immigration-related expertise of the Executive Branch," and afford its judgments an appropriate level of deferenceZadvydas v. Davis,
The Classified Information Procedures Act provides for pretrial conferences and motion hearings to determine limits on the use and disclosure of classified and national security related information in criminal prosecutions. 18 U.S.C.App. 3 §§ 2-4, 6, 8. These proceedings may be held in camera and, in certain circumstances, ex parteId. §§ 2-4, 6; United States v. Klimavicius-Viloria,
As noted, the Department of Justice regulations permit an Immigration Judge to close deportation hearings in their entirety in order to protect the public interest. This closure is broader in scope than what is likely to occur in criminal prosecutions because immigration proceedings call for greater deference to the government on matters of national security
As noted, the Supreme Court held inPress-Enterprise II that a restriction on a qualified right of access fails if there are "reasonable alternatives to closure."