National Security and Access, a Structural Perspective

• Published date: 01 January 2021
• Date: 01 January 2021

National Security and Access, a Structural

Perspective

Matthew L. Schafer*

INTRODUCTION

All the President’s Men and Snowden romanticize the tradecraft of national se-

curity reporters: shadowy parking garages and confidential sources; recently,

encrypted communications and digital rendezvous. Another important tool, rarely

seen and shrouded by much less intrigue, is public access to court proceedings.

1

Public access has uncovered spy swaps, exposed civil rights abuses in the war on

terror, and unveiled attempts to sow discord around the world. Yet much remains

trapped in courthouse vaults and behind courthouse doors. This article explains

why, focusing on successful arguments made by the government in the past and

on the current test employed by courts to decide whether to close proceedings or

seal documents. It also suggests how courts might respond to these arguments

and tweak the existing test for closure, especially, in litigation that implicates

national security concerns.

Public access to court proceedings is a constitutional dictate. The United States

has an “unbroken, uncontradicted history” of public access to court proceedings.

2

In 1907, the U.S. Supreme Court said that “the theory of our system is that the

conclusions to be reached in a case will be induced only by evidence and argu-

ment in open court.”

3

It later said that a “trial is a public event” and “[w]hat tran-

spires in the court room is public property.”

4

And, in 1980, in Richmond

Newspapers, Inc. v. Virginia, it held that the press and public have a First

Amendment right of access to criminal trials: “People in an open society do not

demand infallibility from their institutions, but it is difficult for them to accept

what they are prohibited from observing.”

5

Access arrived late in the Court’s First Amendment jurisprudence. By 1980,

Justice Holmes’ marketplace of ideas theory—the now-quaint belief that truth

will win out over falsity if given the chance—was already sixty years old.

6

* Adjunct Professor, Media Law, Fordham University School of Law. I appreciate the input of David

A. Schulz, Lee Levine, Heidi Kitrosser, Jonathan Manes, Hannah Bloch-Wehba and others who

provided useful comments on a version of this article presented at Yale Law School’s Freedom of

Expression Scholars Conference. © 2021, Matthew L. Schafer.

1. Of course, All the President’s Men does depict Bob Woodward in superior court sitting in on an

initial appearance of the men arrested at the Watergate. See ALL THE PRESIDENT’S MEN (Wildwood

Enterprises 1976).

2. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion).

3. Patterson v. Colorado, 205 U.S. 454, 462 (1907).

4. Craig v. Harney, 331 U.S. 367, 374 (1947); see also, e.g., Estes v. Texas, 381 U.S. 532, 541-42

(1965) (“[R]eporters of all media, including television, are always present if they wish. . . .”).

5. Richmond Newspapers, Inc., 448 U.S. at 572 (plurality opinion).

6. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

689

Nearly twenty-years-old was New York Times v. Sullivan’s recognition that the

“central meaning of the First Amendment” is ensuring free trade in political

speech.

7

But the Court has never decisively linked the right of access to these or

any other First Amendment theory. At worst, its case law can be read to eschew

theory in favor of mechanical tests for determining when a right of public access

applies and when it is overcome. At best, it can be read as suggesting that access

exists to “ensure that the individual citizen can effectively participate in and con-

tribute to our republican system of self-government.”

8

While the latter approach

is the more faithful reading, the failure of the Court to address the right of access

for nearly three decades has left lower courts without guidance on this point.

9

And it is an important point: why the right of access matters affects how courts

enforce it.

Nearly twenty years after 9/11, the executive branch has weaponized this am-

biguity in favor of secrecy.

10

Courts are without power, it argues, “‘to compel a

breach in the security which [the executive] branch is charged to protect.’”

11

The

result is a war on terror that is covert on the battlefield and, many times, in the

courtroom. This has led to frank assessments by Carol Rosenberg, the dean

of Guanta

´namo Bay reporters: “Something Classified Was Scheduled at

Guanta

´namo. A Judge Stopped It. What it was remains a mystery, and a federal

court provided no information in halting it. Welcome to the military commission

system.”

12

Even when military commission transcripts and records are released,

they are delayed for weeks and are replete with redactions even to public testi-

mony.

13

The proceedings and records of Article III courts, while faring better, are

not immune to metastasizing secrecy.

14

The spread of secrecy in our courts—even in proceedings implicating national

security concerns—runs counter to our tradition of public justice and make a

7. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273-76 (1964).

8. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 604 (1982).

9. See Mary-Rose Papandrea, Under Attack: The Public’s Right to Know and the War on Terror, 25

B.C. THIRD WORLD L.J. 35, 36 (2005) (noting that there has been “long-standing doctrinal confusion”

relating to the right of access).

10. Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary

Secrecy, 58 ADMIN. L. REV. 131, 134-36 (2006).

11. Opening Brief for the United States at 19, In re: Certification of Questions of Law to the Foreign

Intelligence Surveillance Ct. of Rev., No. FISCR 18-01 (FISA Ct. Rev. Mar. 16, 2018) [hereinafter

Certification of Questions of Law].

12. Carol Rosenberg, Something Classified Was Scheduled at Guantánamo. A Judge Stopped It.,

N.Y. TIMES (Sept. 26, 2019), https://perma.cc/4ESQ-X2ZA; see also, e.g., Cameron Stracher, Eyes Tied

Shut: Litigating for Access Under CIPA in the Government’s “War on Terror,” 48 N.Y.L. SCH. L. REV.

173, 173 (2003-2004).

13. Carol Rosenberg, The Growing Culture of Secrecy at Guantánamo Bay, N.Y. TIMES (Apr. 4,

2020), https://perma.cc/5DKS-32BU; Carol Rosenberg, Guantánamo prosecutor defends retroactive

censorship of public hearing in 9/11 case, MIAMI HERALD (Feb. 4, 2016, 11:55 AM), https://perma.cc/

2MND-KND7.

14. See, e.g., Sean Gallagher, FBI misused surveillance data, spied on its own, FISA ruling finds, ARS

TECHNICA (Oct. 9, 2019, 10:21 AM), https://perma.cc/YVN7-DMX6; Mike Scarcella, D.C. Circuit

Abruptly Closes Courtroom in Guantánamo Case, BLOG LEGALTIMES (Apr. 5, 2010, 12:51 PM), https://

perma.cc/3LRL-FTSU.

690 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 11:689

reporter’s job of informing the public about what its government is up to much

more difficult if not impossible in some cases. As Judge Kaplan said in this

Journal in advocating for Article III courts’ ability to try terrorism cases, “One of

the core values of this nation, whatever our faults, is our belief that no one may

be punished unless there is a fair, open, and independent judgment of guilt.”

15

It

was not too long ago, after all, that the Supreme Court observed, “[W]e have

been unable to find, a single instance of a criminal trial conducted in camera in

any federal, state, or municipal court during the history of this country.”

16

Publicity is, as Jeremy Bentham put it, “the soul of justice.”

17

While this tradition of access is widely recognized, the Supreme Court has

never definitively explained why we have this tradition, nor why it should be

enforced today. This article provides helpful principles to begin answering that

question. Specifically, it suggests employing a structural approach to access that

is guided by the interests that access plays throughout the Constitution. Stated

simply, access should be understood as a tool for protecting other interests

deemed important under the Constitution and the Bill of Rights.

Using this approach, courts should engage in an interest-based inquiry to deter-

mine whether a right of access applies to a particular proceeding by reference to

the functions that access plays throughout the Constitution. If access applies,

courts should then ask whether there is a compelling interest that is substantially

likely to be harmed absent narrowly tailored closure. If such a showing is made,

courts must then balance the likely harm to the compelling interest resulting from

disclosure against the harm to interests protected by access. Only if the harm to

the compelling interest outweighs the harm to the interests of access should clo-

sure be allowed. These are not small, trivial concerns. Where the right of access

is vindicated, our constitutional system itself is vindicated.

A few qualifications: Because five members of the Court have never recog-

nized that the press has a superior right of access to the public, this article focuses

on the right of access generally – as opposed to some special right of access of

the press. But it should not be forgotten that the right of access is a means by

which the public is informed, it is not the ends. It is the dogged national security

reporters who play a lead role in taking that the means of access and turning it

into something the public can act on. It is through this work that the public learns

of both the right and the wrong done in its name. And it is through this reporting

that the public may reward the right, and punish wrong, in the never-ending pro-

cess of self-governance. Nor does this article focus on how far the right of access

may stretch. Its focus is on the right of access to judicial or quasi-judicial pro-

ceedings, and not to other government proceedings or records.

18

Despite this,

15. Hon. Lewis A. Kaplan, The Implications of Trying National Security Cases in Article III Courts,

8 J. NAT’L SECURITY L. & POL’Y 337, 346 (2016) (emphasis added).

16. In re Oliver, 333 U.S. 257, 266 (1948).

17. JEREMY BENTHAM, A TREATISE ON JUDICIAL EVIDENCE 67 (1825).

18. A structural theory of the right of access implicates access not only to judicial proceedings but to

the government in general. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 584 (1980)

2021] NATIONAL SECURITY AND ACCESS 691