* Assistant Professor of Law, Boston College Law School. J.D. University of Chicago Law School.
1 David Mitchell Ivester, The Constitutional Right to Know, 4 Hastings Const. L.Q. 109, 109 (1977).
2 See Heidi Kitrosser, Secrecy in the Immigration Courts and Beyond: Considering the Right to Know in the Administrative State, 39 Harv. C.R.-C.L. L. Rev. 95, 102–03 (2004) (drawing a distinction between “negative structuralism,” which prevents the government from interfering with the dissemination and consumption of speech, with “affirmative structuralism,” which requires the government to provide access to its proceedings or information in its possession).
3 Harold L. Cross, The People’s Right to Know 197 (1954).
4 See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).
5 See id. (holding that the First Amendment guarantees the public’s right to attend criminal trials).
6 See Eugene Cerruti, “Dancing in the Courthouse”: The First Amendment Right of Access Opens a New Round, 29 U. Rich. L. Rev. 237, 263–69 (1995) (discussing the holdings of Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), Press-Enter. Co. v. Superior Court I, 464 U.S. 501 (1984), and Press-Enter. Co. v. Superior Court II, 478 U.S. 1 (1986), as well as lower court right of access cases).
7 Richmond Newspapers, 448 U.S. at 582 (Stevens, J., concurring).
8 Cerruti, supra note 6, at 238.
9 297 U.S. 233, 240, 251 (1936).
10 Id. at 243, 250.
11 See Martin v. Struthers, 319 U.S. 141, 142, 149 (1943).
12 See Lamont v. Postmaster Gen., 381 U.S. 301, 302, 307 (1965). In Zemel v. Rusk, decided the same Term, the Court rejected the argument that the government’s refusal to permit travel to Cuba unconstitutionally interfered with the right to obtain information. See 381 U.S. 1, 16 (1965). The Court characterized the travel restriction as “an inhibition of action,” not speech, and that in any event, “[t]he right to speak and publish does not carry with it the unrestrained right to gather information.” Id. at 16–17.
13 417 U.S. 817 (1974).
14 417 U.S. 843 (1974).
15 438 U.S. 1, 15 (1978) (plurality opinion) (“Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”).
16 See Pell, 417 U.S. at 819; Saxbe, 417 U.S. at 844. Pell concerned a regulation of the California Department of Corrections, which provided that “[p]ress and other media interviews with specific individual inmates will not be permitted.” 417 U.S. at 819. At issue in Saxbe was a federal regulation that provided that:
[p]ress representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, conversation may be permitted with inmates whose identity is not to be made public, if it is limited to the discussion of institutional facilities, programs and activities.
417 U.S. at 844 n.1.
17 See Pell, 417 U.S. at 829–30; Saxbe, 417 U.S. at 845.
18 See Pell, 417 U.S. at 834–35; Saxbe, 417 U.S. at 850.
19 Saxbe, 417 U.S. at 857 (Powell, J., dissenting); see Pell, 417 U.S. at 835 (Powell, J., concurring in part and dissenting in part); id. at 836 (Douglas, J., dissenting).
20 See 438 U.S. at 3, 9, 15.
21 Id. at 16. The two absent justices were Justices Blackmun and Marshall. Id.
22 See id. at 3, 9. “The question presented is whether the news media have a constitutional right of access to a county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television.” Id. at 3.
23 See id. at 9 (noting that, “[t]his Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control. Nor does the rationale of the decisions upon which respondents rely lead to the implication of such a right.”).
24 Id. at 12.
25 Houchins, 438 U.S. at 14.
26 Id. at 14, 15 (quoting Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975)).
27 Id. at 15.
28 Id. at 14.
29 Id. at 16 (Stewart, J., concurring). Justice Stewart’s concurring opinion was no surprise. In 1975, Justice Stewart wrote a law review article famously declaring that:
[t]here is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution is neither a Freedom of Information Act nor an Official Secrets Act.
Stewart, supra note 26, at 636.
30 See Houchins, 438 U.S. at 40 (Stevens, J., dissenting).
31 See id. at 30.
32 See id.; Saxbe, 417 U.S. at 862–63.
33 Houchins, 438 U.S. at 31–32.
34 443 U.S. 368, 370, 394 (1979) (5–4 decision).
35 See Cerruti, supra note 6, at 257 (noting that “[a]lthough the petitioners had relied principally upon the First Amendment to challenge the closure order, this issue all but disappeared from the five separate opinions in the case. The matter was treated by the Justices on both sides almost exclusively as a Sixth Amendment issue.”).
36 Gannett, 443 U.S. at 379–80.
37 Id. at 383.
38 See id. at 384.
39 Id.
40 Id. at 392.
41 See Gannett, 443 U.S. at 392.
42 See id. at 398–99, 402 (Powell, J., concurring); id. at 403–04 (Rehnquist, J., concurring); id. at 411 (Blackmun, J., concurring in part, dissenting in part).
43 See 448 U.S. at 580 (holding that the First Amendment guarantees the public’s right to attend criminal trials) (Burger, J., plurality op.).
44 See id. Justice Powell did not take part in the decision. Id. at 581. Justice Rehnquist was the lone dissenter. See id. at 604.
45 See id. at 579–80.
46 Id.
47 See id. at 564–69, 573.
48 See Richmond Newspapers, 448 U.S. at 569. Bentham stated:
Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.
Id. (quoting 1 Jeremy Bentham, Rationale of Judicial Evidence 524 (1827)).
49 Id. at 570–71.
50 See id. at 571 (quoting Gerhard O.W. Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U. Pa. L. Rev. 1, 6 (1961)).
51 See id.
52 See Richmond Newspapers, 448 U.S. at 572 (quoting Bentham, supra note 48, at 525).
53 Id.
54 Id. at 580–81.
55 See id. at 587, 589–95 (Brennan, J., concurring).
56 See id. at 586–87.
57 Richmond Newspapers, 448 U.S. at 587 (quoting, in part, N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
58 See id. at 588–89 (quoting William J. Brennan, Jr., Address, 32 Rutgers L. Rev. 173, 177 (1979)).
59 See id. at 598.
60 See Press-Enterprise II, 478 U.S. at 13 (preliminary hearings); Press-Enterprise I, 464 U.S. at 510, 513 (voir dire proceedings); Globe Newspaper, 457 U.S. at 610–11 (sexual assault trials).
61 See Press-Enterprise II, 478 U.S. at 8–9 (quoting Globe Newspaper, 457 U.S. at 605–06); Globe Newspaper, 457 U.S. at 605–06 (quoting Richmond Newspapers, 448 U.S. at 589 (Brennan, J., concurring)); Richmond Newspapers, 448 U.S. at 580–81 (Burger, J., plurality op.); id. at 598 (Brennan, J., concurring); id. at 600–01 (Stewart, J., concurring). Some dissenting justices disagreed with this notion.
62 Press-Enterprise II, 478 U.S. at 8.
63 See Press-Enterprise I, 464 U.S. at 510; Globe Newspaper, 457 U.S. at 606–07.
64 See Press-Enterprise I, 464 U.S. at 510; Globe Newspaper, 457 U.S. at 606–07. In his dissent in Globe Newspaper, Chief Justice Burger, however, argued that the right of access should not be treated the same as the right to disseminate information or to discuss ideas publicly, and that instead the court should merely ask whether the restriction is “reasonable” and then balance the competing interests of access and closure. Globe Newspaper, 457 U.S. at 615–16 (Burger, C.J., dissenting). Justice Stevens argued that “the right of access is plainly not coextensive with the right of expression” because closure laws “do not deter protected activity in the way that other laws sometimes interfere with the right of expression.” Id. at 621. Justice Stevens also dissented in Press-Enterprise II, noting that the right of access is protected by the First Amendment but does not rise to the same level as “a right to publish or otherwise communicate information lawfully or unlawfully acquired.” See 478 U.S. at 17–18 (Stevens, J., dissenting).
65 See, e.g., N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 213 (3d Cir. 2002) (highlighting that the problem with the “history” prong is a lack of guidelines as to how much time need elapse before something meets the test; a string of cases show that a “1000-year history is unnecessary,” but a 38-year-old presumption of openness created by a Department of Justice regulation is too recent).
66 Justice Burger’s plurality in Richmond Newspapers merely stated in a footnote that Pell and Saxbe “are distinguishable in the sense that they were concerned with penal institutions which, by definition, are not ‘open’ or public places.” 448 U.S. at 576 n.11. Justice Brennan mentions in his concurring opinion that “the First Amendment has not been viewed by the Court in all settings as providing an equally categorical assurance of the correlative freedom of access to information.” Id. at 585 (Brennan, J., concurring) (citations omitted). Several commentators have criticized the Court’s failure to reconcile its prior case law adequately. See, e.g., Leonard G. Leverson, Constitutional Limits on the Power to Restrict Access to Prisons: An Historical Re-Examination, 18 Harv. C.R.-C.L. L. Rev. 409, 438 (1983) (noting that Richmond Newspapers’ “plurality opinion . . . strained noticeably as it attempted to reconcile the Court’s reversal of the trial closure with the Court’s previous holdings in Pell and Saxbe”); Lillian R. BeVier, Like Mackerel in the Moonlight: Some Reflections on Richmond Newspapers, 10 Hofstra L. Rev. 311, 320–24 (1982) (criticizing Justice Burger for failing to fit new doctrine in with precedent); Archibald Cox, Foreword: Freedom of Expression in the Burger Court, 94 Harv. L. Rev. 1, 26 (1980) (stating that “surely, some effort to explain the relation between the decision in Richmond Newspapers and those earlier cases was required.”).
67 See Cerruti, supra note 6, at 263.
68 Id.
69 See id. at 263, 266–69.
70 See id. at 269.
71 See Freedom of Information Act, 5 U.S.C. § 552 (2000), amended by Pub. L. No. 107–306, 110 Stat. 3048 (2003) (original version at Pub. L No. 89–554 (1966)). The public has a common law right of access to government records and documents, including judicial documents. See Nixon v. Warner Communications, Inc. 435 U.S. 589, 597 (1978). It is unclear, however, whether FOIA supplanted the common law right of access to federal agency documents. Cf. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936–37 (D.C. Cir. 2003) (holding that FOIA preempted the common law right of access to agency information).
72 Ch. 14, § 7, 1 Stat. 68 (1789) (current version at 5 U.S.C. § 301(2000)).
73 See id. When first enacted, the Act provided: “The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.” Id.
74 See Administrative Procedure Act, Pub. L. No. 79–404, § 3, 60 Stat. 237, 238 (1946) (current version at 5 U.S.C. § 552 (2000)).
75 See id.
76 See EPA v. Mink, 410 U.S. 73, 79 (1973).
77 Id. The APA also permitted “matters of record” to be withheld “for good cause found.” § 3(c).
78 1 James T. O’Reilly, Federal Information Disclosure § 2:2 (3d ed. 2000).
79 Act of Aug. 12, 1958, Pub. L. No. 85–619, 72 Stat. 547 (amending Rev. Stat. § 161 (1875)) (codified at 5 U.S.C. § 301 (1970)).
80 See O’Reilly, supra note 78, § 2:2.
81 See Mink, 410 U.S. at 79 (explaining that Section 3 “was generally recognized as falling far short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute”).
82 See 5 U.S.C. § 552 (2000).
83 See id. In the original FOIA, any person or entity could make a request for information or documents. Id. In 2002, Congress amended FOIA so as to bar requests from foreign governments, international governmental organizations, or their representatives for intelligence agency records. See Intelligence Authorization Act for Fiscal Year 2003 (2002), Pub. L. No. 107-306, § 312, 116 Stat. 2390–91 (codified at 5 U.S.C. § 552(a)(3)(A), (E)) (2000 & Supp. 2003)).
84 See Pub. L. No. 104–231, § 2(a)(1), 110 Stat. 304 (1996) (explaining that the purpose of FOIA is to provide a right of inspection “for any public or private purpose”).
85 See 5 U.S.C. § 552(a)(4)(B).
86 See id. § 552(b)(1)–(9). The exemptions state that FOIA does not apply to matters that fall under the categories of: (1) properly classified information pertaining to national defense or foreign policy, (2) internal agency personnel information, (3) information exempted by other statutes, (4) trade secrets and other privileged or confidential business information, (5) agency memoranda, (6) personnel, medical, and other information the disclosure of which would invade personal privacy, (7) certain categories of law enforcement investigation records or information, (8) reports from regulated financial institutions, and (9) geological and geophysical information. Id.
87 See id. § 552(b)(1). Exemption 3 provides that FOIA does not apply to information that is exempted from disclosure under a separate statute. Id. § 552(b)(3). These separate statutory exemptions often raise national security issues. In addition, FOIA specifically permits the Federal Bureau of Investigation to exercise its discretion in determining whether to disclose documents that “pertain[] to foreign intelligence or counterintelligence, or international terrorism,” provided these documents constitute classified information as provided in subsection (b)(1). See id. § 552(c)(3).
88 Act of June 5, 1967, Pub. L. No. 90–23, § 1, 81 Stat. 54, 55 (amended 1967); see S. Rep. 89–813, at 8 (1965). “Exemption No. 1 is for matters specifically required by Executive order to be kept secret in the interest of national defense or foreign policy. The change of standard from ‘in the public interest’ is made both to delimit more narrowly the exception and to give it a more precise definition.” Id.
89 EPA v. Mink, 410 U.S. 73, 84 (1973).
90 Id.
91 120 Cong. Rec. 17,014, 17,019 (1974) (remarks of Sen. Kennedy).
92 See 5 U.S.C. § 552(a)(4)(B), (b) (2000).
93 See id.
94 H.R. Conf. Rep. No. 93–1380, at 11–12 (1974).
95 See The Honorable Patricia M. Wald, Two Unsolved Constitutional Problems, 49 U. Pitt. L. Rev. 753, 760 (1988) (noting that judicial review of classified information under FOIA “often seems to be done in a perfunctory way”).
96 See id. at 760–61.
97 See, e.g., Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (denying FOIA request for information pertaining to post-September 11 detainees); N. Jersey Media, 308 F. 3d at 198 (upholding broad closure of removal proceedings for detainees); ACLU v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) (denying FOIA request for statistical information regarding the DOJ’s use of Patriot Act surveillance authority); ACLU v. County of Hudson, 799 A.2d 629 (N.J. Super. Ct. App. Div. 2002) (denying access to information concerning detainees held in New Jersey facilities). But see Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (holding broad closure of removal proceedings violated the First Amendment). A federal district court recently ordered various government agencies to respond to a FOIA request for information about detainees in United States custody. ACLU v. Dep’t of Defense, 339 F. Supp. 2d 501, 2004 WL 2050921 (S.D.N.Y. Sept. 15, 2004). The agencies had failed to give any meaningful response to the request, which had been made almost a year earlier. The district court rebuked the government, noting that “the glacial pace at which defendant agencies have been responding to plaintiff’s requests shows an indifference to the commands of FOIA, and fails to afford accountability of government that the act requires.” Id. at *3.
98 John Mintz, U.S. Charges 2 as Bin Laden Aides, Wash. Post, Feb. 25, 2004, at A1.
99 See Scott Higham et al., Guantanamo, Wash. Post, May 2, 2004, at A1.
100 See Associated Press, U.S. Releases 26 Guantanamo Detainees, Wash. Post, Mar. 16, 2004, at A2 (reporting release of twenty-six detainees); Peter Baker, U.S. Sends to Russia 7 Held at Guantanamo, Wash. Post, Mar. 2, 2004, at A14 (discussing release of seven Russians); Higham, et al., supra note 99 (noting that detainee releases resulted from political pressure and that, despite releases, 600 detainees remain at Guantanamo); John Mintz, U.S. Faces Quandary in Freeing Detainees, Wash. Post, Mar. 22, 2004, at A1 (mentioning international law experts’ suggestions that U.S. allies have advantage in securing release of their detainees); Pierre-Antoine Souchard, 4 Frenchmen Freed from Guantanamo, Wash. Post, July 28, 2004, at A11 (discussing release of four French prisoners and noting the slow release of prisoners after much international criticism); Don Van Natta, Jr. & Tim Golden, Officials Detail a Detainee Deal by 3 Countries, N.Y. Times, July 4, 2004, at A1 (noting U.S. release of five Saudi Arabian detainees in exchange for the release of British prisoners); Washington in Brief, Wash. Post, Apr. 3, 2004, at A11 (reporting that the United States had released an additional 15 detainees from different countries). In May 2004, the United States announced that it planned to conduct periodic reviews of the detention of enemy combatants held in South Carolina and Guantanamo Bay. See John Mintz, U.S. to Review Detainees’ Cases, Wash. Post, May 19, 2004, at A18. These reviews would be conducted by a three-judge military panel. Id.
101 Neil A. Lewis, Broad Use of Harsh Tactics Is Described at Cuba Base, N.Y. Times, Oct. 17, 2004, at A1.
102 See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2644 (2004); Rasul v. Bush, 124 S. Ct. 2686, 2692 (2004).
103 Josh White, U.S. to Tell Detainees of Rights: Pentagon Outlines New Procedures, Wash. Post, July 10, 2004, at A7.
104 Memorandum from the Deputy Secretary of Defense, to the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal 1–3 (July 7, 2004), available at http://
www.defenselink.mil/news/Jul2004/d20040707review.pdf.
105 Id. at 1.
106 See Memorandum from the Deputy Secretary of Defense, supra note 104, at 2, 3.
107 Neil A. Lewis, Scrutiny of Review Tribunals as War Crimes Trials Open, N.Y. Times, Aug. 24, 2004, at A12.
108 See Ian James, Tribunal Weighs Guantanamo Detainee Cases, A.P. Newswires, Aug. 4, 2004.
109 See James, supra note 108; Lewis, supra note 107.
110 Neil A. Lewis, U.S. Terrorism Tribunals Set to Begin Work, N.Y. Times, Aug. 22, 2004, at 22. Lawyers for the detainees have made preliminary motions challenging the tribunals that are expected to delay the start of the trials themselves until December. See Neil A. Lewis, Guantanamo Tribunal Process in Turmoil, N.Y. Times, Sept. 26, 2004, at 29. A military official recently revealed to the New York Times that the first four detainees facing trial were chosen specifically because they had not been subjected to abusive treatment and would therefore be less likely to make any allegations embarrassing for the government. See Lewis, supra note 101.
111 See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, 57,834 (Nov. 16, 2001).
112 Press Release, White House, President Issues Military Order (Nov. 13, 2001), at http://whitehouse.gov/news/releases/2001/11/print/20011113–27.html.
113 See Dep’t of Defense Military Commission Order No. 1, § 6(B)(3) (Mar. 21, 2002), available at http://www.dtic.mil/whs/directives/corres/mco/mco1.pdf.
114 See id. The regulations permit the presiding officer to close the hearings for any number of reasons, including the following grounds: “protection of information classified or classifiable . . . information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests.” Id. Whether the public and press will be able to challenge the closure of a military tribunal in United States courts is an open question. For a discussion of this issue, see The Reporters Committee for Freedom of the Press, Military Tribunals, in Homefront Confidential (4th ed. 2003), available at http://www.rcfp.org/homefrontconfidential/tribunals.html.
115 See Charlie Savage, Guantanamo Coverage to Be Restricted, Boston Globe, Aug. 27, 2004, at A9; Press Kit, Media Ground Rules for Coverage of Military Commissions (May 2004), available at http://www.defenselink.mil/news/Aug2004/d20040818PK.pdf.
116 See Press Kit, supra note 115. Using non-governmental sources, the Washington Post has compiled a list of the names of 367 detainees. See Names of the Detained in Guantanamo Bay, Cuba, at http://www.washingtonpost.com/wp-srv/nation/guantanamo_names.html (last visited Sept. 21, 2004).
117 Detention, Treatment, and Trial, supra note 111, at 57,834.
118 See, e.g., David Cole, Their Liberties, Our Security: Democracy and Double Standards, 31 Int’l J. Legal Info. 290, 299 (2003) (arguing that excluding citizens from military tribunals was likely “a politically opportunistic decision”); George P. Fletcher, On Justice and War: Contradictions in the Proposed Military Tribunals, 25 Harv. J.L. & Pub. Pol’y 635, 646 (2002) (commenting that “[n]ot only does the lumping together of all foreigners vastly exceed standards of relevance, but it also invokes a method of classification—citizen versus foreigner— that has no reasonable bearing on the supposed objective of protecting the United States against international terrorism.”); Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L.J. 1259, 1298–1303 (2002) (arguing that the citizen/noncitizen distinction violates the Equal Protection Clause and is a distinction that “cannot be understood in immigration or international bargaining terms”).
119 See ‘I Made a Mistake by Joining the Taliban’: Apologetic Lindh Gets 20 Years, Wash. Post, Oct. 5, 2002, at A1.
120 Dan Eggen & Susan Schmidt, ‘Dirty Bomb’ Plot Uncovered, U.S. Says: Suspected Al Qaeda Operative Held as ‘Enemy Combatant’, Wash. Post, June 11, 2002, at A1 (reporting that Padilla was named an enemy combatant after prosecutors determined that a criminal prosecution would be “difficult”); John Mintz, Justice Says It Won’t Charge U.S. Citizen Moved From Cuba: Man in Custody as Government Deliberates What to Do, Wash. Post, Apr. 9 2002, at A10 (reporting that the government did not intend to charge Hamdi because it lacked sufficient evidence for a criminal prosecution).
121 See Transcript of News Conference on Jose Padilla (June 1, 2004), at http://www.
cnn.com/2004/LAW/06/01/comey.padilla.transcript/index.html. Indeed, Hamdi, who had been initially detained in Guantanamo, was not identified until military officials discovered he was a U.S. citizen. Jess Bravin & Greg Jaffe, American Prisoner in Cuba to Be Moved, Wall St. J., Apr. 5, 2002, at B2.
122 Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2636–37 (2004); Padilla v. Rumsfeld, 352 F.3d 695, 700–01 (2d Cir. 2003), rev’d, 124 S. Ct. 2711 (2004).
123 See Transcript of News Conference on Jose Padilla, supra note 121. Comey explained, “We have decided to release this information to help people understand why we are doing what we’re doing in the war on terror and to help people understand the nature of the threat we face . . . .” Id. “I’m [releasing this information] as soon as it was done so that in the court of public opinion people could better understand why we’ve done some of the things we’ve done.” Id.
124 See id.
125 See Michael Powell, Padilla Case Puts Lawyers in Limbo, Too, Wash. Post, June 5, 2004, at A3.
126 Id.
127 See Sonja Barisic, Lawyers Work to Free Former Combatant, (Aug. 11, 2004), at http://
www.boston.com (Boston Globe online). Even after the Justice Department admitted that Hamdi was no longer a national security threat to the United States, the government continued to hold him incommunicado in solitary confinement. See Eric Lichtblau, U.S. Set Back on Treatment of Combatant, N.Y. Times, Aug. 28, 2004, at A13. In September 2004, the government and Hamdi’s lawyers reached an agreement for his release. Eric Lichtblau, U.S., Bowing to Court Ruling, Will Free ‘Enemy Combatant,’ N.Y. Times, Sept. 23, 2004, at A1.
128 Jerry Markon, Hamdi Returned to Saudi Arabia: U.S. Citizen’s Detention as Enemy Combatant Sparked Fierce Debate, Wash. Post, Oct. 12, 2004, at A2. A Pentagon statement explained merely that it could not give any details “because of operational and security considerations.” Id.
129 See ‘I Made a Mistake by Joining the Taliban’, supra note 119.
130 Jane Mayer, Lost in the Jihad, New Yorker, Mar. 10, 2003, at 50, 57.
131Attorney General Transcript, News Conference—Indictment of John Walker Lindh (Feb. 5, 2002), at http://www.usdoj.gov/ag/speeches/2002/020502transcriptindictmentof
johnwalkerlindh.htm.
132 Mayer, supra note 130, at 50.
133Id.
134 See Memorandum from Michael J. Creppy, Chief Immigration Judge of the United States, to Immigration Judges and Court Administrators 1 (Sept. 21, 2001), available at http://news.findlaw.com/hdocs/docs/aclu/creppy092101memo.pdf. Under the Immigration and Nationality Act, the Attorney General has authority over the “administration and enforcement” of all “laws relating to the immigration and naturalization of aliens.” Immigration Act § 103, 8 U.S.C. § 1103(a) (2000). Removal proceedings, conducted by immigration judges in the executive branch, must follow regulations the Attorney General prescribes. See id. (giving Attorney General power to establish regulations which he deems necessary). Since 1964, an Attorney General regulation governing access to removal and other administrative proceedings permits the closure of hearings to protect “witnesses, parties, or the public interest.” 8 C.F.R. § 1003.27 (2004) (modern codification).
135 See N. Jersey Media, 308 F.3d at 202 (quoting declaration of Dale L. Watson).
136 Id. at 203.
137 Id. Regulations also permit government attorneys to submit information under seal to the immigration judge, who is required to give “appropriate deference” to the government’s contention that disclosure of the documents would harm national security. 8 C.F.R. § 1003.46 (2004).
138 N. Jersey Media, 308 F.3d at 203–04.
139 Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003).
140 See N. Jersey Media, 308 F.3d at 221; Detroit Free Press v. Ashcroft, 303 F.3d 681, 710–11 (6th Cir. 2002).
141 See N. Jersey Media, 308 F.3d at 204–05; Detroit Free Press, 303 F.3d at 700.
142 Detroit Free Press, 303 F.3d at 705.
143 See N. Jersey Media, 308 F.3d at 203; Detroit Free Press, 303 F.3d at 705–06, 709. The government also argued that (1) terrorist organizations might intimidate or harm investigative sources and potential witnesses associated with the detainee; (2) the detainees would no longer be a fruitful source of information because terrorist groups would stop dealing with detainees known to be in government custody; (3) verifying that an individual is detained would reveal the organization and direction of anti-terrorism efforts and alert terrorist organizations to the need to find a substitute actor to accomplish their goals; (4) terrorist organizations might interfere with the proceedings by creating false or misleading evidence; and (5) detainees who do not actually have any connection to terrorism would be stigmatized. See Detroit Free Press, 303 F.3d at 705–06.
144 See N. Jersey Media, 308 F.3d at 208–09 (holding that Richmond Newspapers “is a test broadly applicable to issues of access to government proceedings, including removal”); Detroit Free Press, 303 F.3d at 694, 700 (rejecting the government’s argument that a more deferential standard for non-adjudicative proceedings applied).
145 Detroit Free Press, 303 F.3d at 685, 686 (quoting Kleindienst v. Mandel, 408 U.S. 753, 770 (1972)); see id. at 692–93.
146 See N. Jersey Media, 308 F.3d at 207, 208–09; Detroit Free Press, 303 F.3d at 698–99. The Detroit Free Press opinion notes that immigration hearings commence with a “complaint-like pleading”; “the government bears the burden of establishing its allegations by ‘clear and convincing evidence’”; the respondent has the right of counsel of his own choosing and the right to be present at the hearing; the respondent may assert affirmative defenses or seek discretionary relief; the “immigration judge cannot have participated in the same case in an investigative or prosecutorial role”; and a removal order “must be based on reasonable, substantial, and probative evidence.” Detroit Free Press, 303 F.3d at 698–99. As one court noted, “Deportation hearings ‘walk, talk, and squawk’ very much like a judicial proceeding.” Id. at 702.
147 Detroit Free Press, 303 F.3d at 700, 705.
148 N. Jersey Media, 308 F.3d at 221.
149 Detroit Free Press, 303 F.3d at 701.
150 Id.
151 Id. at 703.
152 See N. Jersey Media, 308 F.3d at 209. The court noted that “there is also evidence that, in practice, deportation hearings have frequently been closed to the general public.” Id. at 212.
153 See Kathleen K. Olson, Courtroom Access After 9/11: A Pathological Perspective, 7 Comm. L. & Pol’y 461, 487–88 (2002) (explaining that given the general confusion surrounding the application of the history-and-logic test, particularly to administrative proceedings, “[p]redicting how the Richmond Newspapers test would apply in [INS proceedings and military tribunals] would be a difficult task even in the best of times”). The Court of Appeals for the Third Circuit itself recognized the lack of guidance on how to determine whether a proceeding satisfies the history prong. See N. Jersey Media, 308 F.3d at 213 (noting that it appears a 1000-year history is unnecessary, but the 38-year history of open removal hearings was too short). Others have noted that the Third Circuit’s application was inconsistent with its own precedent, where it had concluded the “history” prong satisfied on a lesser showing. See Lauren Gilbert, When Democracy Dies Behind Closed Doors: The First Amendment and “Special Interest” Hearings, 55 Rutgers L. Rev. 741, 769–70 (2003) (citing Third Circuit cases that the Third Circuit ignored).
154 See Detroit Free Press, 303 F.3d at 703.
155 Id. at 704.
156 Id.
157 Id.
158 N. Jersey Media, 308 F.3d at 217.
159 Id. at 202.
160 See id. at 219–21.
161 Id. at 219.
162 See Detroit Free Press, 303 F.3d at 705.
163 Id. at 706 (citing several other circuit court cases recognizing the general validity of the “mosaic” theory of intelligence gathering).
164 Id. at 705, 708 (quoting United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 815 (2000)).
165 See id. at 708.
166 Id.
167 Detroit Free Press, 303 F.3d at 708.
168 See id. at 709.
169 Id.
170 Id. at 709–10.
171 See N. Jersey Media, 308 F.3d at 198.
172 See Devlin Barrett, Abuse of Detainees Spurs Homeland Changes, Monterey Herald, ¶¶ 3, 9, 7 (Apr. 14, 2004) (describing new rules), available at http://www.montereyher
ald.com; John Mintz, New Rules Shorten Holding Time for Detained Immigrants, Wash. Post, Apr. 14, 2004, at A17 (discussing Department of Homeland Security’s announcement of new rules). In mid-April 2004, the Department of Homeland Security announced new guidelines for the treatment of individuals detained for alleged immigration violations. Id. For example, the new procedures require high-ranking officials in the Department of Homeland Security to review all cases in which the government seeks to make a national security exception to the rule that an individual detained for an alleged immigration violation must be released on bond within 48 hours. Mintz, New Rules, supra. In addition, the regulations prohibit the Department from seeking the broad-scale closure of immigration proceedings for entire groups of detainees. Barrett, supra. Instead, each closure request must be made on an individual basis. See Mintz, New Rules, supra.
173 Ctr. for Nat’l Sec. Studies, 331 F.3d at 922.
174 Id. at 921–22.
175 Id. at 922. The government has also released selective information about individual detainees, typically ones who are alleged to have ties to terrorism. Id.
176 Id.
177 See Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002), aff’d in part, rev’d in part, 331 F.3d 918 (D.C. Cir. 2003).
178 See generally Brief for Appellant, Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d 94 (D.D.C. 2002) (No. 02-5254).
179 Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d at 103.
180 Id. at 98.
181 5 U.S.C. § 552(b)(7)(A), (C), (F) (2000). The government also claimed that information concerning individuals detained as “material witnesses” was exempt from disclosure under Federal Rules of Criminal Procedure 6(e)(2) and 6(e)(6), which bar the disclosure of matters occurring before a grand jury. The district court rejected this argument because the government had failed to establish that any of the detainees actually had appeared or were scheduled to appear before a grand jury. 215 F. Supp. 2d at 106–07. The D.C. Circuit did not reach this argument because it concluded that all the requested information was exempt from disclosure under Exemption 7(A). Judge Tatel, in dissent, agreed with the District Court that the government had failed to demonstrate that all the material witness detainees were likely to testify before a grand jury. Ctr. for Nat’l Sec. Studies, 331 F.3d at 949 (Tatel, J., dissenting). Judge Tatel noted that, in fact, “the record indicates that at least seven material witnesses have been released without testifying before a grand jury, so in their cases, it seems more accurate to say that their testimony is quite unlikely to occur before a grand jury.” Id. (Tatel, J., dissenting) (emphasis in original).
182 Ctr. for Nat’l Sec. Studies, 331 F.3d at 937.
183 Id. at 928.
184 See id. at 926–27 (“It is equally well-established that the judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive purview.”); id. at 927 (“[B]oth the Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security.”).
185 For example, the government argued that releasing the information could lead to a “possible loss of life, perhaps on a massive scale.” Brief for Appellant at 52, Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d 94 (D.D.C. 2002) (No. 02-5254).
186 Ctr. for Nat’l Sec. Studies, 331 F.3d at 928.
187 See id. at 927.
188 Id. at 928.
189 Id. at 930.
190 Id.
191 Ctr. for Nat’l Sec. Studies, 331 F.3d at 930.
192 Id.
193 Id.
194 See id. at 931.
195 Id.
196 See Ctr. for Nat’l Sec. Studies, 331 F.3d at 941 (Tatel, J., dissenting).
197 See id. at 932–33.
198 Id. at 933.
199 See id. at 918.
200 See Ctr. for Nat’l Sec. Studies, 331 F.3d at 927–28; N. Jersey Media, 308 F.3d at 217-19.
201 See Ctr. for Nat’l Sec. Studies, 331 F.3d at 935 (noting that Houchins, not Richmond Newspapers, applies outside the judicial context); In re Boston Herald, Inc., 321 F.3d 174, 180–81 (1st Cir. 2003) (suggesting same); Calder v. IRS, 890 F.2d 781, 783–84 (5th Cir. 1989) (Houchins, not Richmond Newspapers, governs the right of access to agency records); Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1173 (3d Cir. 1986) (“While [Richmond Newspapers and its progeny] clearly represent a significant development, they do not expressly or impliedly overrule Houchins.”). But see Cincinnati Enquirer v. Cincinnati Bd. of Educ., 249 F. Supp. 2d 911, 915 (S.D. Ohio 2003) (rejecting argument that Richmond Newspapers test applies only to judicial or quasi-judicial proceedings).
202 See supra Part I.A.1.
203 See 448 U.S. at 565. Some commentators have noted how incongruous it is to rely on history when the framers’ only well-documented focus when drafting the First Amendment was prohibiting prior restraints. See Kitrosser, supra note 2, at 113–14 (citing commentators).
204 Olson, supra note 153, at 485 (citing cases).
205 See id. at 485–87.
206 See 457 U.S. at 606.
207 See id.
208 See 478 U.S. at 25 (Stevens, J., dissenting).
209 See id. at 25–26.
210 See Olson, supra note 153, at 488; see also BeVier, supra note 66, at 338–39 (arguing that the logic prong “does not provide meaningful guidance”); Kitrosser, supra note 2, at 115 (noting that “a logic prong so unclear in its theoretical grounding and practical implications as that relied upon by the Supreme Court cannot meaningfully contribute to the assessment of access claims”).
211 See Globe Newspaper, 457 U.S. at 604–06.
212 See N. Jersey Media, 308 F.3d at 219 n.14.
213 See supra Part I.B.
214 See Ctr. for Nat’l Sec. Studies, 331 F.3d at 927–28.
215 See N. Jersey Media, 308 F.3d at 217 (listing values typically served by openness, but stating that just because openness serves community values does not mean that it passes the logic test by playing a “significant positive role” in a proceeding).
216 See id. at 219.
217 See id. at 221.
218 Ctr. for Nat’l Sec. Studies, 331 F.3d at 922.
219 See Office of the Inspector General, U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 35, 137–38, 143–44 (2003), available at http://www.usdoj.gov/oig/special/0306/full.pdf. The Inspector General’s Report was released on June 2, 2003. See Press Release, Office of the Inspector General, Department of Justice Inspector General Issues Report on Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Terrorist Attacks (June 2, 2003), http://www.usdoj.gov/oig/special/0306/press.htm. The D.C. Circuit’s opinion was released June 17, 2003. See Ctr. for Nat’l Sec. Studies, 331 F.3d at 922.
220 U.S. Dep’t of Justice, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York 2, 29 (Dec. 2003), available at http://www.usdoj.gov/oig/special/0312/final.pdf (reporting that additional investigation substantiated detainees’ claims of abuse).
221 Id. at 142–47 (summarizing detainees’ claims that they were slammed against walls, dragged by their handcuffed arms, threatened, kicked, unnecessarily strip-searched, and had their arms, hands, fingers, and wrists twisted); id. at 153–55 (reporting that cell lights were kept on 24 hours a day for several months); see also Office of the Inspector General, The September 11 Detainees, supra note 219, at 28.
222 Office of the Inspector General, The September 11 Detainees, supra note 219, at 158.
223 Id. at 159.
224 Id. at 161.
225 Ctr. for Nat’l Sec. Studies, 331 F.3d at 931.
226 Office of the Inspector General, The September 11 Detainees, supra note 219, at 16, 17.
227 Adam Liptak, Palmer Raids Redux: The Pursuit of Immigrants in America After Sept. 11, N.Y. Times, June 8, 2003, at 14.
228 David Cole, The Priority of Morality: The Emergency Constitution’s Blind Spot, 113 Yale L.J. 1753, 1753–54 (2004).
229 See Detroit Free Press, 303 F.3d at 711.
230 Id.
231 Id. at 683, 686, 693.
232 See N. Jersey Media, 308 F.3d at 220.
233 Stewart, supra note 26, at 631, 636 (1975) (citing in part Pell v. Procunier and Saxbe v. Washington Post Co.).
234 438 U.S. at 12, 15 (quoting in part Stewart, supra note 26, at 636); see also Capital Cities Media, 797 F.2d at 1171 (noting that “decisions as to how much governmental information must be disclosed in order to make democracy work historically have been regarded as political decisions to be made by the people and their elected representatives. Conversely, the judiciary has never asserted the institutional competence to make such decisions.”).
235 See Note, Keeping Secrets: Congress, the Courts, and National Security Information, 103 Harv. L. Rev. 906, 910–11 (1990).
236 See id. at 911–12.
237 Id. at 912 n.29.
238Id. at 913.
239 See Eugene Rachlis, They Came to Kill: The Story of Eight Nazi Saboteurs in America 176–237 (1961) (describing in detail the saboteurs’ trial).
240 See id. at 20–21, 160–65.
241 See id. at 157–59.
242 See id. at 169–70; see also Lloyd Cutler, What I Saw at a Military Tribunal, Time, Nov. 19, 2001, at http://www.time.com (web exclusive) (noting that “Hoover . . . wanted to maximize the public relations value of the arrests”). The government released only “the names, photographs and brief biographies of the eight men, a description of their weapons, a list of their objectives, where and how they landed, and very little else.” Rachlis, supra note 239, at 169.
243 See Rachlis, supra note 239, at 170.
244 See id.
245 See id. at 174.
246 Louis Fisher, Nazi Saboteurs on Trial 54 (2003).
247 See Fisher, supra note 246, at 53; Rachlis, supra note 239, at 182–83.
248 See Fisher, supra note 246, at 53, 55; Rachlis, supra note 239, at 177–78.
249 Rachlis, supra note 239, at 177–78.
250 Id. at 178, 185.
251 Id.; see also Felix Cotten, Death Penalty Asked for 8 Captured Spies, Wash. Post, June 29, 1942, at 2 (reporting that members of Congress demanded “swift justice” and that various Congressmen have complained that this country is “too soft” and that these men “ought to be shot, since they are clearly spies”); Editorial, N.Y. Times, Aug. 2, 1942, at E2 (reporting that polls show the public would prefer the immediate execution of these men, by a 10 to 1 margin); Raymond Moley, Death for the Saboteurs, Newsweek, July 6, 1942, at 64 (calling for the saboteurs’ death and asking that punishment not be delayed).
252 Rachlis, supra note 239, at 249; see also Editorial, The Nation, Aug. 8, 1942, at 103 (stating that “[a] touch of the ludicrous is a small price to pay for maintaining the traditions of American judicial procedure. . . . The niceties of jurisprudence, however, can be carried too far . . . .”).
253 See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 78 (1980) (arguing that “if it is not the ‘many’ who are being treated unreasonably but rather only some minority, the situation will not be so comfortably amenable to political correction.”).