Can Richmond Newspapers Stretch Even Further?
CAN THE EFFECT OF RICHMOND NEWSPAPERS STRETCH EVEN
FURTHER? AN ANALYSIS OF THE RIGHT OF THE
PRESS TO COVER IMMIGRATION HEARINGS
Dale L. Edwards, Ph.D. Student
School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
Chapel Hill, NC 27599
Phone: (919) 843-5854 (W)
(919) 619-1003 (H)
[log in to unmask]
Submitted for consideration for
presentation in the
Association for Education in Journalism
and Mass Communication
Annual Conference, July 30-August 2, 2003
Can the Effect of Richmond Newspapers Stretch Even Further?
An Analysis of the Right of the Press to Cover Immigration Hearings
On December 19, 2001, a Michigan immigration judge held a bond hearing to
determine whether Rabih Haddad should be deported. Haddad had stayed
beyond the time limit specified by his tourist visa and thus was subject to
deportation. Additionally, the United States Justice Department suspected
Haddad's Islamic charity had supplied funds for terrorist organizations.
Due to Haddad's suspected connection with the Al Qaeda terrorist network,
the case created press interest. Members of Haddad's family and the public,
as well as press representatives, attempted to attend the hearing. However,
security officials refused them entry, announcing that the quasi-judicial
administrative hearing had been designated a special interest case and,
therefore, was closed to the press and public. The closing of the Haddad
hearing provided an early demonstration of Chief Immigration Judge Michael
Creppy's directive (hereinafter "the Creppy memo") ordering the blanket
closure of all hearings for "special interest" cases.
Several media organizations, Haddad family members, and other members of
the public sued United States Attorney General John Ashcroft in Detroit
Free Press v. Ashcroft, arguing that both governmental regulations
and the U.S. Constitution required the hearing to be open to both the
public and the press. The plaintiffs also requested that the Creppy memo
be declared unconstitutional, that all future deportation hearing closures
be enjoined, and that transcripts of previous hearings be released. The
Department of Justice argued that both national security concerns and the
government's plenary powers over immigration procedures provided
constitutional justification for the hearing's closure. U. S. District
Court Judge Nancy G. Edmunds decided in favor of the plaintiffs, citing the
First Amendment right of access established in Richmond Newspapers, Inc. v.
Virginia and clarified in subsequent cases.
The government's appeal of the Michigan decision to the Sixth Circuit
Court of Appeals yielded a similar ruling. The appeals court acknowledged
the government's clear authority to guard the nation's borders through
immigration laws. However, the court said the public constituted the "only
safeguard against this extraordinary power" through the press. The court
refused to issue a stay of the lower court order to release the transcripts
pending appeal, and the government later voluntarily released the
A similar case in New Jersey yielded a similar result. U. S. District
Court Judge John W. Bissell granted an injunction preventing the closing of
an Immigration and Naturalization Service deportation hearing, relying
extensively on Richmond Newspapers and its progeny. The U. S. Justice
Department appealed North Jersey Media Group v. Ashcroft to the Third
Circuit Court of Appeals, and secured a stay of implementation of the
district court decision from the U.S. Supreme Court. On October 8,
2002, the Third Circuit announced its decision, reversing the district
court and ruling in favor of the government. Significantly, the circuit
court applied the two-part Richmond Newspapers test as the controlling
precedent but ruled that the district court erred when it found the North
Jersey Group's arguments satisfied both the experience and logic tests.
While courts have generally found no inherent First Amendment right of
access for the public and press to "information within the government's
control," the Richmond Newspapers decision clearly established an
exception by finding a First Amendment right to attend criminal trials.
This doctrine was extended to other proceedings through subsequent cases.
The conflicting decisions from the Third and Sixth Circuits clearly
demonstrate the lack of agreement on the extent of the reach of the
Richmond Newspapers decision. The losers in both the Detroit Free Press and
North Jersey Media Group cases are expected to appeal to the U. S. Supreme
Court, and the outcome of the appeals will be closely watched due to its
potential long-range impact. While that appeal is widely expected, as of
March 31, 2003, the Supreme Court had not yet agreed to hear the case.
Some contend that a Court decision restricting access to deportation
hearings might create a precedent that could be used to close criminal
trials. Such a decision would constitute the first major departure from
the Richmond Newspapers doctrine. The Justice Department argues equally
forcefully that open proceedings will unconstitutionally limit the
government's plenary control of immigration, as well as compromise national
security and the fight against terrorism.
The importance of the outcome of this argument is potentially vast. If the
access established under Richmond Newspapers is applicable, the Bush
Administration's order for a blanket closure of immigration hearings would
probably be found unconstitutional. Such a finding could prompt a major
change in administration plans for the trial of detained non-citizens. If
decided broadly enough, it would cement the concept of public access to
trials and extend that access to other proceedings. If the Supreme Court
were to uphold the government's right to close the hearings, the ruling
could offer an opportunity to withdraw some of the limited rights of access
recognized by lower courts under Richmond Newspapers. Some media groups
are so concerned they are already taking steps to prevent any potential
loss of rights. The purpose of this paper is to analyze the
applicability of the right of access established in Richmond Newspapers and
its progeny to the issues raised by the Detroit Free Press and North Jersey
Media Group cases in an effort to determine which U. S. Circuit Court of
Appeals was more in line with the Supreme Court's decisions.
REVIEW OF LITERATURE
While a significant body of literature examines public access rights under
Richmond Newspapers and its progeny, little has been written on the
application of this right to quasi-judicial administrative proceedings such
as deportation hearings conducted by the Immigration and Naturalization
Service. A special section in News Media & the Law examined "trends toward
court secrecy, and what can be done to challenge it [sic]." In one of
six sections, the report discussed immigration proceedings, including brief
descriptions of immigration laws, the use of secret evidence, a description
of the Terrorist Removal Court, and access to immigration proceedings.
Because it was written prior to both the issuance of new rules governing
deportation proceedings in May 2002 and the decisions in the Detroit Free
Press and North Jersey Media Group, it does not include many recent
developments in the continuing dispute over access. However, Ashley
Gauthier continues to write consistently on the issue, though the reports
are in the form of legal journalism and do not attempt in-depth analysis.
While not discussing public and press access, a small body of literature
examined the secrecy of the record of immigration proceedings, particularly
access to evidence used to support deportation. Kelly Brooke Snyder,
David Cole, and D. Mark Jackson examined the problems and
implications of the use of secret evidence in deportation proceedings. In
such proceedings, the government uses classified evidence to support
deportation without allowing the alien to view it. The evidence is examined
by the judge in chambers, and a summary is prepared by the prosecution that
is intended to allow the defendant to prepare a defense. The action is
justified on national security grounds. Snyder examined the use of secret
evidence in cases decided prior to the September 11th attacks and found
immigration judges assigned lower significance to governmental national
security arguments in those earlier cases. She said the September 11th
attacks would probably result in immigration judges giving greater credence
to government national security arguments and a return to World War II era
attitudes that personal liberties should be subordinated to national
security concerns. She argued that the Executive Branch should have
broad authority to control the admission of secret evidence into
immigration hearings, subject to subsequent judicial review.
Cole described his experiences as a lawyer involved in defending aliens in
deportation proceedings. He agreed with Jackson that the use of secret
evidence was always unconstitutional. Cole said the use of secret evidence
strikes at the heart of the United States' adversarial justice system.
Jackson argued that the use of secret evidence is unconstitutional in three
ways. First, the use of secret evidence derives from an improper and
inaccurate analysis of congressional powers to regulate immigration.
Second, the use of secret evidence violates the Due Process Clause of the
Fifth Amendment. Third, the use of secret evidence violates the
Confrontation Clause of the Sixth Amendment.
Most of the literature that discusses administrative proceedings deals with
military tribunals which, like deportation hearings, are quasi-judicial
proceedings under the control of the Executive Branch. On November 13,
2001, the Bush Administration announced its intention to use the tribunals
to try non-U.S. citizens for violations of the "laws of war" in the war on
terrorism. However, little of this literature considers public access
to the tribunals.
Perhaps the most closely related work in this area was prepared by the
Association of the Bar of the City of New York, though it primarily limited
its discussion to press coverage of military tribunals and examined the
issue of open immigration hearings only peripherally. The Association
document first traced the history of tribunals and examined the level of
press coverage permitted in each. The Association document also
described in detail the rights of the press to attend civilian court
proceedings under Richmond Newspapers, as well as detailing similar case
law under the military justice system. The Association argued that both
U.S. Supreme Court and Court of Military Justice precedents require
military tribunals to be open to the press and public.
Tom Perrotta described a panel discussion sponsored by the Association of
the Bar of New York City on press coverage of military tribunals. The
group included a former U.S. Attorney, a federal district court judge, a
legal educator, and a New York Times columnist. It concluded that while it
was unlikely that strong legal precedent could be found to argue for press
access to the tribunals, if the government wanted to demonstrate that the
proceedings were fair, it would be wise to make them as open as possible.
While these articles discussed the use of classified evidence at
immigration hearings extensively, they did not deal specifically with the
issue of press access either to the hearings themselves or to transcripts
and evidence. Indeed, the literature review found no articles providing
systematic analysis of the legal basis for a First Amendment right of press
coverage of immigration/deportation hearings such as provided in judicial
trials under Richmond Newspapers.
This paper proposes to answer the following research questions:
1. Does the First Amendment provide a right to attend and cover
quasi-judicial immigration proceedings held under the authority of the
Executive Branch that is substantially similar to the right to attend
judicial proceedings established in Richmond Newspapers and its progeny?
2. Are the national security objections proposed by the Department of
Justice as justification for secret proceedings strong enough to overcome
this right of access, if it exists?
This paper will first provide a description and analysis of press access
rights as established by Richmond Newspapers and its progeny. It will then
analyze and compare the district court rulings in Detroit Free Press and
North Jersey Media Group, particularly as the tests in the Richmond
Newspapers family of cases were applied. It will then similarly analyze and
compare the conflicting decisions of the Sixth and Third Circuits. Finally,
it will summarize the findings and reach conclusions in answer to the above
The U.S. Constitution vests in Congress the authority to regulate
immigration through the establishment of "an [sic] uniform rule of
naturalization." Scholars have not questioned the constitutionality of
the immigration proceedings themselves, though such procedures as the use
of secret evidence have drawn considerable criticism. Thus, this paper will
assume that the Immigration and Naturalization Service is acting under
proper legal authority when it convenes deportation hearings. It is also
outside the scope of this paper to examine press coverage of other
administrative proceedings such as the proposed military tribunals, Social
Security hearings, etc. Such an undertaking would require a manuscript of
RICHMOND NEWSPAPERS AND ITS PROGENY
The United States Supreme Court used four cases over a six-year period to
establish a constitutional right of access for the press and public to a
variety of criminal proceedings. Beginning in 1980 with the decision in
Richmond Newspapers, Inc. v. Virginia, and ending with Press-Enterprise v.
Riverside County Superior Court in 1986, the Court established a limited
First Amendment right of access for the press and public to criminal
trials, sexual offense trials involving victims under age 18, voir dire
proceedings, and preliminary hearings. In the four cases, the Court
consistently held that criminal proceedings are presumed to be open unless
a compelling interest can be demonstrated through findings of fact. The
holdings and analysis in each case will be examined in turn.
Richmond Newspapers v. Virginia stemmed from a defense request to close
the fourth trial of a defendant for the 1975 murder of a hotel manager.
Prior to the fourth trial, the defense attorney moved that the trial be
closed to the public and press. The prosecution raised no objection, and
the Virginia Circuit Court judge ordered the courtroom cleared of all
except "witnesses when they testify." In a closed session, the court
found the defendant not guilty and Richmond Newspapers appealed the
closure order to the Virginia Supreme Court, which found no reversible
error, and denied the appeal.
On appeal, the U.S. Supreme Court reversed the lower court, ruling 7-1
that the First and Fourteenth Amendments to the U.S. Constitution
guaranteed the press and public a right to attend criminal trials. The
Court based its decision on a two step test that came to be known as the
experience and logic tests. First, the "unbroken, uncontradicted history"
of openness of trials mandated continued press and public access absent an
"overriding interest" that would support closure. Second, a court must
examine the circumstances of each case individually and make specific
findings before making a decision. Specifically, the Court said trial
courts must determine whether any alternative to closure would meet the
need to insure fairness.
In a concurring opinion, Justices Brennan and White said the First
Amendment provides an absolute right for the public to attend trials. Thus,
this opinion said, the Virginia law was unconstitutional in any event and
no examination of the presence of a compelling governmental interest in
closure was necessary. The opinion further said that secrecy was
"profoundly inimical to [the] trial process. Open trials assure the public
that procedural rights are respected, and that justice is afforded
equally." In a brief dissent, Justice William Rehnquist said the issue
before the Court was not whether a right of access was to be found in the
U.S. Constitution, but rather whether "any provision of the Constitution
may fairly be read to prohibit what the trial judge in the Virginia state
court system did in this case." He argued that no such constitutional
Richmond Newspapers was a landmark ruling that has provided controlling
precedent for the 22 years since its decision. However, the question of how
far its effects might extend has led to additional litigation. In 1982, the
U.S. Supreme Court used a Massachusetts case, Globe Newspaper v. Superior
Court to strengthen public access rights articulated in Richmond
Newspapers. The Court ruled 6-3 that a Massachusetts law that required that
the public and press be excluded from the courtroom during the testimony of
minors who were victims of sexual abuse was unconstitutional.
In his majority opinion, Justice Brennan clearly articulated the experience
and logic tests first established under Richmond Newspapers:
First, the criminal trial historically has been open to the press and
general public. … a tradition of openness implies the favorable judgment of
Second, the right of access to criminal trials plays a particularly
significant role in the functioning of the judicial process and the
government as a whole. … Public access to the criminal trial fosters an
appearance of fairness, thereby heightening public respect for the judicial
The Court said the justification for closure must be a "weighty" one, and
must not only further a compelling government interest, but also be
narrowly tailored to serve that interest. The Court conceded the
state's interest in protecting minors from further embarrassment was
compelling. It also said protecting victims from additional trauma and
encouraging them to come forward to testify was important. However, the
majority held these arguments did not justify a mandatory, blanket closure
requirement. A concurring opinion by Justice Sandra Day O'Connor
strongly supported the decision, but emphasized that she interpreted both
Globe Newspaper and Richmond Newspapers to apply only to criminal trials.
In a dissenting opinion, Chief Justice Burger, joined by Justice
Rehnquist, criticized the majority opinion's conclusion that the Richmond
Newspapers decision opened all aspects of all criminal trials in all
circumstances. He said the majority opinion ignored a long history of
exclusion of the public from trials involving sexual assaults, particularly
those against minors. Burger also argued that since transcripts of the
trial, including the identity and testimony of the minor witness, had been
released to the media and the public, Massachusetts was not inhibiting the
flow of information.
Three years after the Richmond Newspapers decision, the Supreme Court
extended access rights to voir dire proceedings to the public and
press. In Press-Enterprise v. Superior Court of California (Press
Enterprise I), the Court ruled 8-0 that a judge's order excluding the
public from most of the voir dire proceeding was unconstitutional. The
Court held that like criminal trials themselves, jury selection proceedings
have "presumptively been a public process with exceptions only for good
cause shown." The Court relied on its Richmond Newspapers reasoning to
determine that trial closures must be rare and "only for cause shown that
outweighs the value of openness." Further, the Court said to justify
closure, the trial judge would be required to hold a hearing and
demonstrate through specific findings of fact that the closure was
"essential to protect higher values and [was] narrowly tailored to serve
In 1986, the U.S. Supreme Court decided the last of its cases considering
the extent of public and press access rights established by Richmond
Newspapers. In Press-Enterprise v. Superior Court of California
(Press-Enterprise II), the Court ruled 7-2 that the public had a First
Amendment right to attend preliminary hearings. The Court said a
preliminary hearing functions much like a full scale trial and merited
public access. Writing for the majority, Chief Justice Warren Burger
said because of "the absence of a jury" in a preliminary hearing, it "makes
the importance of public access to a preliminary hearing even more
THE DETROIT FREE PRESS AND NORTH JERSEY MEDIA CASES
Two 2002 cases dealt with the applicability of Richmond Newspapers right
of access to quasi-judicial proceedings held by the Immigration and
Naturalization Service to determine whether aliens should be deported.
Media groups in Michigan and New Jersey sued Attorney General John
Ashcroft, arguing that a blanket order to close the deportation hearings to
the press and public violates the First Amendment right of access
articulated in Richmond Newspapers and extended by Globe Newspaper Co.,
Press-Enterprise I, and Press-Enterprise II. In both cases, U.S. District
Court judges ruled in favor of the media plaintiffs.
In both the Detroit Free Press and North Jersey Media Group cases the
plaintiffs moved for summary judgment, arguing the blanket closure of the
immigration hearings was unconstitutional. The government opposed the
motions, claiming that it was entitled to deference due to its plenary
power over immigration and that the potential harm to national security
justified closure. Using the two-pronged Richmond Newspapers test, U.S.
District Court Judge Nancy G. Edmunds first found a First Amendment right
for public access to the deportation hearing. She noted that several lower
courts had relied on Richmond Newspapers to extend public access rights to
civil trials and administrative proceedings. She also cited a New York
district court case which found that an immigration judge had abused
his discretion in closing a deportation hearing.
To determine whether the experience test had been satisfied, Edmunds said
INS regulations had mandated open deportation proceedings for nearly 50
years. She also said Congress had repeatedly refused to order closure of
deportation proceedings, though it had expressly directed that INS
exclusion hearings be closed. Turning to the logic prong, Edmunds said
a number of reasons justified access to all proceedings, whether criminal
or civil trials, or administrative proceedings. They included a sense of
fair play, protection of the individual from "unwarranted and arbitrary
conviction," protection from "lax prosecution," public confidence in
administrative proceedings, and ensuring that the "agency is doing its
Edmunds acknowledged that the First Amendment right of access to the
deportation hearing was not absolute and that closures might be permissible
with the presentation of a compelling government interest that would
overcome the presumption of access. She rejected a government argument that
it should be required to prove only a "facially legitimate and bona fide
interest" to justify the closure, saying precedents from both the Supreme
Court and lower courts mandated the application of a strict scrutiny
standard to justify closure. She determined that the Creppy memo was
not sufficiently narrow to satisfy constitutional requirements and that the
government had not proved substantial harm to anyone. Following her
analysis, she granted the plaintiffs' motion for a preliminary injunction.
In the North Jersey Media Group case, the government initially raised, and
then dropped, similar jurisdictional arguments. After withdrawing its
objection on jurisdictional grounds, the government argued that the case
was rendered moot, an argument rejected by the district court due to the
likelihood of the argument resurfacing elsewhere. After ruling on the
jurisdiction question, the district court turned to the merits of the First
Amendment arguments raised by the media group. The court acknowledged the
government's plenary power to regulate immigration, but said the U.S.
Supreme Court had ruled that such power must respect "procedural safeguards
of due process." The district court further said the Creppy memo's
blanket closure provision was not intended to "advance the application of
immigration statutes, but, rather, to serve other law enforcement
objectives." Thus, the court said, the Creppy memo was not beyond
judicial review due to plenary authority, as argued by the government.
After establishing its judicial review authority, the district court next
examined whether Richmond Newspapers was the correct controlling precedent.
It rejected government arguments that cases such as Houchins v. KQED
and Capital Cities Media v. Chester were applicable precedents, saying
those cases referred to information held by the government and not access
to government proceedings. The New Jersey Media Group court also
discounted a government reminder that no court had established a First
Amendment right to attend deportation hearings. The judge ruled that the
lack of such a substantive ruling did not preclude the existence of a right
or provide a basis for departing from the Richmond Newspapers precedent.
The judge also cited numerous cases in which courts had relied on Richmond
Newspapers and its progeny and the Detroit Free Press ruling in finding
First Amendment rights to attend not only criminal proceedings but also
civil proceedings and even administrative proceedings. With that
finding, the court applied the Richmond Newspapers test to determine
whether the immigration hearing closure was constitutional.
The district court said a decision by the U.S. Supreme Court in 1903
established a requirement for due process in a proceeding the purpose of
which was to consider removal of a resident alien. The North Jersey Media
Group court said the "touchstone" of such due process rights "is the right
to an open hearing." The district court also cited federal regulations
that mandated a presumption of openness for deportation hearings as
bolstering the argument for a favorable finding under the Richmond
Newspapers experience test.
Concerning the Richmond Newspapers logic prong, the district court said
that since deportation hearings affect a person's "liberty interest,"
constitutional due process guarantees must be respected. The court also
found that deportation proceedings have "undeniable similarities to
judicial proceedings," in that an alien may be represented by counsel,
answers to a list of charges, has the right to present witnesses and may
cross-examine government witnesses. The court said these similarities
led to a conclusion that the same public interests that justified open
judicial proceedings also justified open deportation proceedings.
Finally, the district court examined the government's claim that even if
the Richmond Newspapers precedent were applied, its compelling interest in
avoiding setbacks in its terrorist investigation and prevention of harm or
stigma to detainees would outweigh the media's First Amendment rights.
The government's arguments were based on the Globe Newspaper ruling that a
proceeding could be closed if the closure order was based on "a compelling
government" interest and was "narrowly tailored to serve that
interest." The district court ruled that the very information the
Creppy memo was designed to keep secret would be provided to the alien and
his/her attorney. Further, the court said the Creppy memo's blanket closure
order was not narrow enough and that in camera review was an acceptable
means for determining when government evidence needed to remain secret.
Relying on the experience and logic tests established in Richmond
Newspapers and its progeny, both district courts ruled in favor of public
and media access to deportation hearings. Both judges found a First
Amendment right of access and rejected the blanket closure orders mandated
by the Creppy memo.
The Sixth Circuit Court Ruling.
Both the Detroit Free Press and the New Jersey Media Group rulings were
immediately appealed, to the Sixth and Third Circuit Courts of Appeals,
respectively. In the Detroit Free Press case, the Sixth Circuit Court of
Appeals unanimously affirmed the lower court ruling in a strongly worded
opinion. The court said that "an informed public is the only defense
against misgovernment," but that the government was trying to "take this
safeguard away by placing its actions beyond public scrutiny."
The circuit court rejected government arguments that the district court
had erred in not granting deferential review to the government's plenary
power over immigration, saying such deferential review was due only to
substantive immigration laws. The court ruled that "non-substantive"
procedural rules such as the Creppy memo were not entitled to such
deferential review. Thus, the court said, to justify closure the government
must prove that the Creppy memo was sufficiently narrow to pass
constitutional muster. The court said the government had not satisfied this
The Sixth Circuit Court applied the Richmond Newspapers test to find a
First Amendment right of public access to deportation proceedings. It
rejected Houchins v. KQED as the controlling precedent, saying the
Supreme Court in that case found the press had no greater right of access
than the general public. The circuit court said in the Detroit Free Press
case, the plaintiff was not asserting a special right of access. The court
also said the repeated application of the two-pronged Richmond Newspapers
test indicated the Supreme Court was moving away from its Houchins position
and recognized a limited constitutional right to at least some government
The circuit court also noted that the Richmond Newspapers test had been
extended beyond criminal judicial proceedings to civil and some
administrative proceedings. It acknowledged, however, that while several
district and circuit courts had granted such extensions, the U.S. Supreme
Court had never addressed the extension of First Amendment rights beyond
criminal judicial proceedings.
In considering the experience prong of the Richmond Newspapers test, the
circuit court rejected a government argument that the history of openness
for deportation proceedings was not sufficient to satisfy the longevity
requirement. The court noted that in Press-Enterprise II, the Supreme
Court had relied on post-Bill of Rights history to satisfy the experience
requirement. The circuit court opinion said that while the context of
history was important, "a brief historical tradition might be sufficient to
establish a First Amendment right of access where the beneficial effects of
access to that process are overwhelming and uncontradicted." In
addition, the circuit court argued that the deportation hearings were
substantially similar to judicial proceedings, thus strengthening the
applicability of the Richmond Newspapers test. Paraphrasing the U.S.
Supreme Court's phrase in a South Carolina case, the circuit court
noted that the deportation proceedings "walk, talk, and squawk very much
like a judicial proceeding."
Turning to the Richmond Newspapers logic prong, the circuit court
identified five reasons that access to deportation hearings served a public
1. Public access acts as a check on the actions of the executive branch.
2. Openness insures that the government does its job properly.
3. The cathartic effect of open deportations cannot be overstated.
4. Openness enhances the perception of integrity and fairness.
5. Public access helps insure public participation in the governmental
The circuit court determined the government had provided no evidence to
refute these findings of public benefit.
Finally, the court ruled that the government had not met its burden of
proving that a compelling government interest could be satisfied in no less
restrictive way than closure. The court disagreed with the district court
ruling that the government had not identified a compelling interest in
closure. The circuit court opinion said the government's interest in
preventing terrorism was compelling. It also recognized the government's
"mosaic theory" and agreed that the revelation of certain pieces of
information could be highly detrimental to government anti-terrorism
efforts. However, the circuit court said the immigration judge had not made
specific findings before closing the Haddad deportation hearing as required
by Press-Enterprise II. Further, the court said, the Creppy memo,
mandating a blanket closure for all "special interest" deportation
proceedings, was not narrowly tailored. The court said in camera review of
sensitive information was an acceptable alternative to closure of the
The Third Circuit Court Ruling
Shortly after the Sixth Circuit Court ruling, the Third Circuit Court of
Appeals issued a conflicting ruling in the North Jersey Media Group
appeal. While the Third Circuit Court applied the Richmond Newspapers
test, it ruled 2-1 that the district court had assigned too great a
significance to the benefits to society of an open proceeding and had not
adequately considered the potential harm of such openness. The majority
argued that the September 11th attacks had focused the country's national
policy on self-preservation. Thus the logic test must carefully consider
the impact of open hearings on national security when applying the Richmond
Further, the majority opinion argued that while deportation hearings had
largely been open since 1965, Congress had never explicitly mandated
openness. It further said that the recent nature of the regulatory
presumption of openness included significant statutory exceptions and
"[did] not present the type of 'unbroken, uncontradicted history' that
Richmond Newspapers and its progeny require[d] to establish a First
Amendment right of access." The circuit court argued that the history
and experience were both "recent" and "rebuttable," and were not "the stuff
of which Constitutional rights are forged." Thus, the court agreed
with the government's argument that the Richmond Newspapers experience test
had not been met.
The circuit court opinion acknowledged the holding in Federal Maritime
Commission v. South Carolina State Ports Authority  that the
deportation hearings bore an "undeniable resemblance to civil trials," and
that, "read broadly," the language might "suggest the same First Amendment
rights exist in each context." However, the court rejected that
interpretation, saying the South Carolina case dealt specifically with the
sovereign immunity of a non-consenting state to be shielded from complaints
brought by a private person and did not address the fundamental issue of
public access to administrative hearings. The court noted that many
administrative hearings remain closed to the public. It also
questioned whether the Supreme Court intended to apply the "full panoply of
Constitutional rights to any administrative proceeding that resemble[d] a
Concerning the national security implications of open deportation
hearings, the majority opinion described the government's "mosaic theory"
in great detail. Significantly, it accepted a government argument that
requiring closure of hearings on a case-by-case basis would expose
"critical information about which activities and patterns of behavior" were
necessary to offer justification for the closure. The court agreed
that the government's contentions were speculative but said that the
potential benefits of open deportation proceedings under the Richmond
Newspapers logic prong were also speculative. The court said it was
disinclined to conduct a hearing into the credibility of security concerns
since courts have historically deferred to the executive branch on such
In a dissenting opinion, Judge Sirica agreed that Richmond Newspapers was
applicable but asserted that the two-part test had been met. He recounted
the history of deportation hearing openness and noted that though Congress
had repeatedly exempted INS exclusion hearings from statutory openness, it
had not done so with deportation hearings. He also rejected the
majority's argument that the history of openness was uneven, noting that
exceptions to openness also existed in criminal trials and the Supreme
Court had found the history of openness in those proceedings to be unbroken
Sirica also rejected the majority's likening deportation hearings to other
administrative proceedings such as Social Security hearings. He noted that
deportation hearings were adversarial while many other administrative
hearings were inquisitive. Further, he noted that inquisitive proceedings
such as social security hearings collected private medical and financial
information that argued in favor of closure. Sirica also argued that
Richmond Newspapers and its progeny required a decision based on the type
of proceeding, not the subject matter involved. Thus, he said, the logic
prong must consider the benefits of openness of deportation hearings
generally, not whether "special interest" cases should be open. Sirica
concluded that the Richmond Newspapers test required that hearings be
presumptively open and that immigration judges should review evidence in
camera to determine on a case-by-case basis whether closure was warranted.
He noted that even closure hearings could be held in secret. He said such a
procedure had proven workable in criminal courts. Thus, he concluded,
the Creppy memo was over-broad and unacceptably infringed on the Constitution.
WHICH COURT BEST ADHERED TO U.S. SUPREME COURT PRECEDENT?
While they agreed on little else, the Sixth and Third Circuit Courts of
Appeals both saw Richmond Newspapers as the proper controlling precedent.
The Sixth Circuit Court interpreted Richmond Newspapers broadly and seemed
to be willing to go beyond existing precedent to extend First Amendment
access rights to administrative proceedings. It took a firm civil
libertarian approach and found access arguments highly compelling. The
court was not persuaded by government national security arguments.
Conversely, the Third Circuit Court interpreted both U.S. Supreme Court and
its own previous decisions very narrowly in reaching its decision. It was
unwilling to extend rights beyond existing precedent, and said it would not
be bound by dicta in its previous rulings that contradicted its conclusions
in the current case. It was also quite willing to defer to executive branch
expertise to determine whether a national security emergency existed. Thus,
whether a First Amendment right of access to deportation proceedings exists
depends on which court more closely adhered to U.S. Supreme Court precedent
and perceived intention in making its decision.
The answer to that question seems to center on two issues: 1)whether the
limited access rights established by Richmond Newspapers and its progeny
for criminal proceedings should be extended to administrative deportation
hearings; and 2) whether a heightened national security concern in light of
the September 11th attacks is a sufficiently compelling interest to
overcome the right of access.
The First Amendment access rights established in Richmond Newspapers, Globe
Newspaper, and Press- Enterprise I applied specifically to criminal trials.
Those rights were extended through Press-Enterprise II to preliminary
hearings. The U.S. Supreme Court has never directly considered a case
extending public access rights further. In a footnote in Richmond
Newspapers, Chief Justice Warren Burger acknowledged that civil trials had
been likewise historically open, indicating the Court might look favorably
on extension of First Amendment rights to civil proceedings. In
Press-Enterprise II, he noted that preliminary hearings were much like
trials, and that "the First Amendment question cannot be resolved solely on
the label we give the event."  In Federal Maritime Commission v. South
Carolina State Ports Authority, the majority said that some adversarial
administrative proceedings were enough like criminal trials as to be nearly
indistinguishable. However, the Court stopped short of determining
that such hearings should be considered the same as criminal trials for all
Other courts have extended access rights to civil cases and some
administrative proceedings. However, it must be stressed that these
actions have been taken by lower courts and not by the U.S. Supreme Court.
The Sixth Circuit Court cited the importance of deportation hearings
respecting due process rights for aliens. Considerable precedent suggests
aliens are entitled to such rights. In Wong Wing v. United States, the
Supreme Court held that an alien who had entered the country and was living
here was entitled to Fifth Amendment due process rights at a deportation
hearing. The Court affirmed that ruling in Shaughnessy v. United
States, ex. rel Mezei, saying even if an alien had arrived illegally, he
could be expelled "only after proceedings conforming to traditional
standards of fairness." If aliens are, indeed, entitled to due process
rights, it is reasonable to assume they would be entitled to an open
hearing. This argument is weakened, however, by the Court's has
determination that such Sixth Amendment rights are personal. Plaintiffs
relying on such due process arguments to justify public and press access
have been unsuccessful. In Richmond Newspapers and its progeny the Court
repeatedly found public benefits of open trials, citing enhanced confidence
in the observance of due process rights as one of those benefits. The
identification of these benefits strengthens the argument for extending to
deportation hearings the same public access rights established for criminal
The history prong of the Richmond Newspapers test was originally based on
an "unbroken, uncontradicted" history of openness in criminal trials.
In Press-Enterprise II the Supreme Court recognized that newer types of
proceedings would have shorter histories. offering a precedent that a
shorter tenure of openness might satisfy this prong. Ironically, another
factor arguing for recognition of sufficient history is immigration law's
youth. The first immigration laws were passed scarcely more than 100 years
ago. The hearings have been open by regulatory mandate since 1965. It seems
illogical to require a history of openness from even colonial times when
the proceedings themselves were not in existence.
A stronger argument, however, is the lack of congressional direction
closing the hearings. The Sixth Circuit Court noted that exclusion hearings
have been closed by law since 1893. However, the court also noted that the
Congress has amended the Immigration and Nationality Act at least 53 times
without mandating closure for deportation proceedings. This fact
seriously weakens the Third Circuit Court's argument that Congress has
never explicitly directed that such hearings be open. Though a direct
action is more compelling than a lack of action, that Congress has
explicitly and consistently ordered that exclusion hearings be closed while
remaining silent on the closure of deportation hearings provides a strong
indication of congressional intent and argues in favor of openness. From
these arguments, it is reasonable to conclude that the experience prong
mandated by Richmond Newspapers has been satisfied.
As the conflicting courts of appeals opinions demonstrate, determining
whether the Richmond Newspapers logic prong has been satisfied is
subjective. The Third Circuit Court acknowledged a legitimate public
interest in openness but argued that national security concerns had been
accorded insufficient attention by the district judge in the North Jersey
Media Group trial. In the Detroit Free Press case, the Sixth Circuit Court
acknowledged national security concerns but placed greater emphasis on the
benefits of openness, articulating five specific public interests served by
open proceedings. In his North Jersey Media Group dissent, Third
Circuit Judge Sirica attempted to find middle ground by advocating a
presumption of openness while allowing immigration judges considerable
latitude to find national security justification for closure on a
While national security concerns are enhanced following the September 11th
attacks, public interest in proceedings dealing with nearly any aspect of
alleged terrorist connection may also be greater. The Sixth Circuit's
articulation of specific benefits seems reasonable in view of this great
public interest. Additionally, public access might allay due process and
fairness concerns. In Press Enterprise I, the U.S. Supreme Court said
openness reassures the public "that standards of fairness are being
observed." Conversely, secrecy provides no such assurance. The Supreme
Court noted in Richmond Newspapers, that the criminal process must satisfy
the "appearance of justice" if it is to work effectively. Openness
allows the public to have confidence that justice is being served. Given
the presumptive benefit of openness as articulated in Richmond Newspapers
and its progeny, it seems reasonable to conclude that the logic test has
been met. It is also reasonable to argue that a First Amendment right of
public access as established by Richmond Newspapers and its progeny applies
to deportation hearings. Thus, the answer to the first research question
raised in this paper is in the affirmative.
A First Amendment right of access as discussed above would invalidate
closures without specific findings. In Globe Newspaper, the Supreme Court
We emphasize that our holding is a narrow one: that a rule of mandatory
closure … is unconstitutionally 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.
In this passage, Chief Justice Warren Burger appeared to allow closures
"under appropriate circumstances." In his North Jersey Media Group
dissent, Third Circuit Judge Sirica agreed, proposing that closure of
deportation hearings be determined on a case-by-case basis. He argued such
an approach would allow immigration judges to balance public and national
security interests. Because of the Globe Newspapers ruling, and
because an appropriate and less restrictive alternative is available, the
blanket closure ordered by the Creppy memo seems to be unconstitutional.
Thus, the answer to the second research question is also in the affirmative.
Based on the above analysis, it is reasonable to conclude that the public
and press should enjoy the same access rights to attend deportation
hearings that are afforded them to attend criminal trials. Such a decision
by the U.S. Supreme Court would be difficult, given the admittedly perilous
situation currently facing this country. However, courts regularly face the
responsibility of making difficult decisions. The District Court for the
District of Columbia noted: "[D]ifficult times such as these
[post-September 11th] have always tested our fidelity to the core
democratic values of openness, government accountability, and the rule of
law.... [T]he first priority of the judicial branch must be to ensure that
our government always operates within the statutory and constitutional
constraints which distinguish a democracy from a dictatorship." The
current question calls for such a decision in favor of openness.
 For background on the Haddad case, see Detroit Free Press v. Ashcroft,
303 F.3d 681 (6th Cir. 2002).
 The Creppy memo defines special interest cases as those during which
sensitive or national security information may be presented.
 Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 948 (E.D. Mich. 2002).
 See 8 C.F.R. § 3.27 (2002).
 Detroit Free Press, 303 F.3d at 684.
 448 U.S. 555 (1980).
 See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982);
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)
(Press-Enterprise I); Press-Enterprise Co. v. Superior Court, 478 U.S. 1
(1986) (Press Enterprise II).
 See Detroit Free Press 303 F.3d at 683.
 Ashley Gauthier, Feds Release Transcripts of Immigration Hearings:
White House Vows to Fight Disclosure in Future Trials, The News Media & the
Law, Spring 2002, at 47.
 North Jersey Media Group, Inc. v. Ashcroft, 205 F. Supp. 2d 288,
 Ashcroft v. North Jersey Media Group, Inc., 122 S.Ct. 2655, (2002).
 North Jersey Media Group, Inc. v. Ashcroft, 2002 U.S.App. LEXIS 21032
(3rd Cir. Oct. 8, 2002).
 In the majority opinion in Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555 (1980), Chief Justice Warren Burger found a limited First
Amendment right of public access to criminal trials due to the long history
of openness of such trials. In a concurring opinion, Justice Brennan
focused on the benefits to society that accrued as a result of openness.
After this decision, a trial court was required to apply the Richmond
Newspapers test to determine whether the First Amendment right of access
applied to the proceeding at issue. If so, the closure must then be
justified by a compelling interest. The details and findings of the
Richmond Newspapers decision are examined in detail infra pp. 10-11.
 See infra pp. 9-10.
 See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978). ("[N]either
the First Amendment nor the Fourteenth Amendment mandates a right of access
to government information or sources of information within the government's
control"); Branzburg v. Hayes, 408 U.S. 665, 684 (1972). ("[T]he First
Amendment does not guarantee the press a constitutional right of special
access to information not available to the public generally").
 In Richmond Newspapers, Chief Justice Burger stated that absent an
"overriding interest articulated in findings," the First and Fourteenth
Amendments require criminal judicial proceedings to be open to the press
and public (448 U.S. at 556).
 See United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982)
(attendance at pretrial suppression hearings); Publicker Industries, Inc.
v. Cohen, 733 F.2d. 1033 (3d Cir. 1984) (extending First Amendment rights
of access to civil proceedings); Society of Professional Journalists v.
Secretary of Labor, 616 F. Supp. 569, 574 (D. Utah 1985) (applying Richmond
Newspapers standard to an administrative hearing).
 See, e.g., Detroit, Ann Arbor Papers Sue INS, Asking for Access to
Immigration Hearings, AP, Jan. 29 2002, LEXIS, Nexis Academic, News
Library; David Ashenfelter & Niraj Warikoo, Secrecy Opposed in Activist's
Case, Detroit Free Press, Oct. 3, 2002, LEXIS, Nexis News Library,
 For a brief discussion of this issue, see James C. Goodale, Does
Freedom Die Behind Closed Doors? N.Y.L.J., Oct. 4, 2002, at 3.
 Several major news organizations have initiated an amicus campaign to
attempt to protect the rights established under Richmond Newspapers. See
Jim Edwards, News Media Mount Amicus Campaign to Preserve Right of Access
to Trials, N.J.L.J., July 22, 2002, at 4.
 See, e.g., Leon Ruchelsman & Mark Kagan, Closing the Courtroom:
Trends and Concerns, N.Y.L.J., Dec. 5, 2001, at 1 (discussion of
courtroom closures when cases feature undercover drug agents as witnesses);
Sean D. Corey & Sarah A. Stauffer, Twenty-Eighth Annual Review of Criminal
Procedure: Sixth Amendment on Trial, 87 Geo.L.J. 1641 (1999) (examines
conflict between defendant's right to waive Sixth Amendment right of public
trial and First Amendment right of access); Jeanne L. Nowaczewski, The
First Amendment Right of Access to Civil Trials After Globe Newspaper Co.
v. Superior Court, 51 U. Chicago L. R. 286 (1984) (constitutional right of
access announced in Richmond and Globe extends to civil trials); Beth
Hornbuckle Fleming, First Amendment Right of Access to Pretrial Proceedings
in Criminal Cases, 32 Emory L.J. 619 (1983) (individual case circumstances
may justify closure of pre-trial proceedings; secrecy of grand jury
proceedings unlikely to be affected by court decisions on press access).
 Ashley Gauthier, Secret Justice: Access to Terrorism Proceedings,
News Media & the Law, Winter 2002, at S1.
 See, e.g., Ashley Gauthier, Feds Release Transcripts of Immigration
Hearings, News Media & the Law, Spring 2002, at 47; Judge Opens Access to
Terrorism Proceedings, But U.S. Supreme Court Issues Stay of Order, News
Media & the Law, Summer 2002, at 46; Proposed INS Rule Would Seal Files,
Close Immigration Courts, News Media & the Law, Summer 2002, at 46.
 Kelly Brooke Snyder, A Clash of Values: Classified Information in
Administrative Proceedings, 88 Va. L. Rev. 447 (2002).
 David Cole, Secrecy, Guilt by Association, and the Terrorist Profile,
15 J.L. & Religion 267 (2000/2001).
 D. Mark Jackson, Exposing Secret Evidence: Eliminating a New Hardship
of United States Immigration Policy, 19 Buff. Pub. Int .L.J. 25 (2001/2002).
 Id. at 37.
 Snyder, supra note 24, at 456.
 Id. at 474.
 Id. at 450.
 Cole, supra note 25, at 276.
 The Due Process Clause specifies that no person "shall be deprived of
life, liberty, or property without due process of law" (U.S. Const. amend. V).
 The Confrontation Clause specifies that in any judicial proceeding,
the accused has the right to be confronted with the witnesses against him
(U.S. Const. amend. VI).
 Jackson, supra note 27, at 42-43.
 See George Lardner, Jr. & Peter Slevin, Military May Try Terrorism
Cases; Bush Cites 'Emergency,' Wash. Post, Nov. 14, 2001, at A1.
 Committee on Communications and Media Law, The Association of the Bar
of the City of New York, The Press and the Public's First Amendment Right
of Access to Terrorism on Trial: A Position Paper, 57 The Record of the
Association of the Bar of the City of New York 94 (2001/2002).
 Id. at 126. The Association position paper cites United States v.
Hershey, 20 M.J. 433 (C.M.A. 1985), as the primary case providing press
access rights during court martial proceedings. The appeals court in this
case applied the Richmond Newspapers case as a precedent in finding that
the press and public not only must have access to the court martial, but,
also, must be allowed onto the military base where the court martial
inevitably would be held.
 Tom Perotta, Press Access to Tribunals is Debated, N.Y.L. J., Feb.
28, 2002, at 1.
 U.S. Const. art. I, § 8.
 During voir dire proceedings, prosecution and defense attorneys
question potential jurors as part of the process of seating an impartial jury.
 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 559 (1980).
 Id. at 562.
 Associate Justice Lewis F. Powell took no part in the Court's
deliberations or decision in this case.
 Richmond Newspapers, 448 U.S. at 580.
 Id. at 576.
 Id. at 580-581.
 Id. at 585.
 Id. at 595.
 Id. at 606.
 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
 Id. at 602.
 Id. at 605-606.
 Id. at 606-607.
 Id. at 608, 610.
 Id. at 611.
 Id. at 613.
 Id. at 614.
 Id. at 615.
 During voir dire proceedings, potential jurors are questioned in an
attempt to determine potential biases that could affect their ability to
render an impartial verdict. While questions may not directly address the
points of the case to be tried, attorneys will ask philosophical questions
on general topics similar to trial issues that attempt to identify juror
biases. Following the voir dire proceedings, the jury is sworn by the judge
and the case proceeds to trial.
 Press-Enterprise v. Superior Court of California, 464 U.S. 501, 503
(1984). The judge's decision closed all but three days of the approximately
six-week voir dire proceeding.
 Id. at 505.
 Id. at 509.
 Id. at 510.
 Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986).
 Id. at 7.
 Id. at 12-13.
 See See United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982)
(attendance at pretrial suppression hearings); Publicker Industries, Inc.
v. Cohen, 733 F.2d. 1033 (3d Cir. 1984) (extending First Amendment rights
of access to civil proceedings); Society of Professional Journalists v.
Secretary of Labor, 616 F. Supp. 569, 574 (D. Utah 1985) (applying Richmond
Newspapers standard to an Mine Safety and Health Administration
investigative hearing); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d
1165 (6th Cir. 1983) (finding a right of access to documents in a civil
proceeding); Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972) (finding
right of access to a Civil Service Commission removal hearing).
 Pechter v. Lyons, 441 F. Supp. 115 (S.D.N.Y. 1977).
 Detroit Free Press, 192 F. Supp. 2d at 942..
 Id. at 943.
 Id. at 943-944.
 Id. at 945.
 North Jersey Media Group v. Ashcroft, 205 F.Supp.2d at 292 n.2 (2002).
 Id. at 296.
 Id. at 297.
 438 U.S. 1 (1978).
 797 F.2d 1164 (3d Cir. 1986).
 North Jersey Media Group v. Ashcroft, 205 F. Supp. 2d at 299.
 Yamataya v. Fisher, 189 U.S. 86 (1903) (The "Japanese Immigrant Case").
 205 F. Supp. 2d at 300.
 See 8 C.F.R. § 242.16(a) (1964); 8 C.F.R. § 3.27 (2002).
 205 F. Supp. 2d at 300.
 Id. at 301.
 457 U.S. at 606-607 (1982).
 205 F. Supp. 2d at 302.
 Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002)
 Substantive immigration regulations are those specifically passed by
Congress under its plenary authority to govern who may enter and stay in
this country. Non-substantive regulations apply to immigration/deportation
 Detroit Free Press, 303 F.3d at 692-693.
 Id. at 705.
 438 U.S. 1 (1978).
 303 F.3d at 695.
 Id. at 695 n. 11.
 478 U.S. at 10-12.
 303 F.3d at 701.
 Federal Maritime Commission v. South Carolina State Ports Authority,
122 S. Ct. 1864, 1873 (2002).
 303 F.3d at 702.
 Id. at 703-04.
 The "mosaic theory" holds that while bits and pieces of information
themselves might appear innocuous, used by terrorist groups, they help form
a bigger picture of the government's terrorism investigation. The theory
was first recognized in United States v. Marchetti, 466 F.2d 1309, 1318
(4th Cir. 1972).
 303 F.3d at 707.
 Id. at 708.
 North Jersey Media Group v. Ashcroft, 2002 U.S. App. LEXIS 21032, at
*1 (3d Cir. Oct. 8, 2002).
 Id. at *11.
 Id. at *7.
 Id. at *43.
 122 S. Ct. 1864 (2002).
 North Jersey Media Group v. Ashcroft, 2002 U.S. App. LEXIS 21032, at
*8 (3d Cir. Oct. 8, 2002).
 Id. at *8-9.
 Id. at *9.
 Id. at *50.
 Id. at *61.
 Id. at *61-62.
 Id. at *68.
 Id. at *69 n. 3.
 Id. at *74.
 Id. at *77.
 Id. at *84.
 448 U.S. at 580 n. 17 ("Whether the public has a right to attend
trials of civil cases is a question not raised by this case, but we note
that historically both civil and criminal trials have been presumptively
 478 U.S. at 7.
 122 S. Ct. at 1873 (The Ports Authority hearings were said to "walk,
talk, and squawk like a criminal trial").
 Publicker Industries, Inc. v. Cohen, 733 F.2d. 1033 (3d Cir. 1984).
 Society of Professional Journalists v. Secretary of Labor, 616 F.
Supp. 569, 574 (D. Utah 1985).
 163 U.S. 228, 238 (1896).
 345 U.S. 206, 212 (1953).
 448 U.S. at 576.
 See 478 U.S. at 10-12. The U.S. Supreme Court determined a history
stretching to the time of the Bill of Rights was sufficient to satisfy the
history prong requirement.
 Detroit Free Press, 303 F.3d at 701.
 See text accompanying supra note 127.
 464 U.S. at 508.
 448 U.S. 571-572.
 457 U.S. at 611, n27.
 North Jersey Media Group, 2002 U.S. App. LEXIS 21032, at *86.
 Center for National Security Studies v. Department of Justice, 2002
U.S. Dist. LEXIS 14168, at *3 (D.D.C.Aug. 8, 2002).