National Security and Access, a Structural Perspective

Published date01 January 2021
Date01 January 2021
National Security and Access, a Structural
Matthew L. Schafer*
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.
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.
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.”
It later said that a “trial is a public event” and “[w]hat tran-
spires in the court room is public property.”
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.”
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.
* 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 PRESIDENTS 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).
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
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.”
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.
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.
Courts are without power, it argues, “‘to compel a
breach in the security which [the executive] branch is charged to protect.’”
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
´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
Even when military commission transcripts and records are released,
they are delayed for weeks and are replete with redactions even to public testi-
The proceedings and records of Article III courts, while faring better, are
not immune to metastasizing secrecy.
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),; 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),; Carol Rosenberg, Guantánamo prosecutor defends retroactive
censorship of public hearing in 9/11 case, MIAMI HERALD (Feb. 4, 2016, 11:55 AM),
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),; Mike Scarcella, D.C. Circuit
Abruptly Closes Courtroom in Guantánamo Case, BLOG LEGALTIMES (Apr. 5, 2010, 12:51 PM), https://
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.”
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.”
Publicity is, as Jeremy Bentham put it, “the soul of justice.”
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.
Despite this,
15. Hon. Lewis A. Kaplan, The Implications of Trying National Security Cases in Article III Courts,
8 J. NATL SECURITY L. & POLY 337, 346 (2016) (emphasis added).
16. In re Oliver, 333 U.S. 257, 266 (1948).
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)

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