     07-0981-cr(L)
     United States v. Aref


1                        UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                      --------

4                                 August Term, 2007

5    (Argued: March 24, 2008                          Decided: July 2, 2008)

6        Docket Nos. 07-0981-cr(L), 07-1101-cr(CON), 07-1125-cr(CON)

 7   -----------------------------------------------------------X
 8   UNITED STATES OF AMERICA,
 9
10                   Appellee,
11
12                     - v. -
13
14   YASSIN MUHIDDIN AREF, MOHAMMED MOSHARREF HOSSAIN,
15
16                     Defendants-Appellants.
17
18   NEW YORK CIVIL LIBERTIES UNION,
19
20                  Proposed-Intervenor-Appellant.
21   -----------------------------------------------------------X
22   Before:   JACOBS, Chief Judge, McLAUGHLIN, Circuit Judge, and
23             SAND, District Judge.1
24
25         The defendants were convicted after a jury trial in the

26   Northern District of New York (McAvoy, J.).         The district court

27   denied a motion of the New York Civil Liberties Union (the

28   “NYCLU”) to intervene in the case for the purpose of asserting a

29   First Amendment right to discovery of certain documents sealed by

30   court order.    The defendants and the NYCLU now appeal.



     1
      The Honorable Leonard B. Sand, United States District Court for
     the Southern District of New York, sitting by designation.
1         In an accompanying summary order, we reject most of the

2    numerous challenges to the district court’s rulings.   In this

3    opinion, we hold that: (1) pursuant to section 4 of the

4    Classified Information Procedures Act, 18 U.S.C. app. 3 § 4, a

5    criminal defendant is entitled to discovery of relevant

6    classified evidence that is helpful to his defense, a decision

7    within the district court’s discretion that may be made without

8    the defendant’s or his lawyer’s participation; (2) we review

9    denials of motions to intervene in criminal cases for abuse of

10   discretion and find no such abuse here; and (3) district courts

11   ordinarily should refrain from entirely (as opposed to

12   selectively) sealing court orders and documents filed by the

13   parties, but the district court did not err in doing so here.

14        AFFIRMED.

15                                 WILLIAM C. PERICAK, Assistant
16                                 United States Attorney (Elizabeth
17                                 C. Coombe, Brenda K. Sannes,
18                                 Assistant United States Attorneys,
19                                 of counsel), for Glenn T. Suddaby,
20                                 United States Attorney for the
21                                 Northern District of New York,
22                                 Albany, NY.
23
24                                 TERENCE L. KINDLON (Kathy Manley,
25                                 on the brief), Kindlon and Shanks,
26                                 P.C., Albany, NY, for Defendant-
27                                 Appellant Yassin Muhiddin Aref.
28
29                                 KEVIN A. LUIBRAND, Albany, NY, for
30                                 Defendant-Appellant Mohammed
31                                 Mosharref Hossain.
32
33                                 COREY STOUGHTON (Arthur Eisenberg,
34                                 Christopher Dunn, on the brief),

                                     2
 1                                  New York Civil Liberties Union,
 2                                  New York, NY, for Proposed-
 3                                  Intervenor-Appellant.
 4
 5                                  Melissa Goodman, American Civil
 6                                  Liberties Union, and Corey
 7                                  Stoughton, New York Civil Liberties
 8                                  Union (Jameel Jaffer, American
 9                                  Civil Liberties Union; Arthur
10                                  Eisenberg, Christopher Dunn, New
11                                  York Civil Liberties Union, on the
12                                  brief), for Amici Curiae American
13                                  Civil Liberties Union and the New
14                                  York Civil Liberties Union.
15
16                                  Peter Karanjia, Davis Wright
17                                  Tremaine LLP (Christopher Robinson,
18                                  David Wright Tremaine LLP, on the
19                                  brief; David E. McGraw, The New
20                                  York Times Company, of counsel),
21                                  New York, NY, for Amici Curiae
22                                  Advance Publications, Inc., The
23                                  Associated Press, Daily News L.P.,
24                                  Gannett Co., Inc., The Hearst
25                                  Corporation, NBC Universal, Inc.,
26                                  The New York Newspaper Publishers
27                                  Association, The New York Times
28                                  Company, Newsweek, Inc., North
29                                  Jersey Media Group, The Reporters
30                                  Committee for Freedom of the Press,
31                                  Reuters America LLC, U.S. News and
32                                  World Report, L.P., and The
33                                  Washington Post, in support of
34                                  Proposed-Intervenor-Appellant.
35
36   McLAUGHLIN, Circuit Judge:

37        Both defendants were convicted on charges arising out of a

38   sting operation.   The jury found that they conspired to conceal

39   the source of what a cooperator represented to be proceeds from

40   the sale of a surface-to-air missile.   According to the

41   cooperator, the missile was to be used by terrorists against a

42   target in New York City.   Before trial, the Government sought,

                                      3
1    pursuant to the Classified Information Procedures Act (“CIPA”),

2    18 U.S.C. app. 3, two protective orders restricting discovery of

3    certain classified information that, arguably, would have been

4    otherwise discoverable.    The district court granted the motions

5    in part and denied the rest.

6         Based on an article in The New York Times (suggesting the

7    defendants might have been subject to warrantless surveillance),

8    Aref also moved to discover evidence resulting from any

9    warrantless surveillance and to suppress any illegally obtained

10   evidence or to dismiss the indictment.   Both the Government’s

11   responses to the motion and the district court’s order denying

12   the motion were sealed because they contained classified

13   information.   The district court also denied motions by the New

14   York Civil Liberties Union (the “NYCLU”) to intervene and to get

15   public access to those sealed documents.

16        The defendants appeal their convictions.   The NYCLU appeals

17   the denial of its motions to intervene and to get public access

18   to the sealed documents.   Because most of the appellants’

19   challenges are governed by settled law, we address them in an

20   accompanying summary order.    We now resolve two issues of first

21   impression: (1) the standard for determining what relevant

22   classified information a criminal defendant is entitled to

23   receive during discovery, and (2) the propriety of and the

24   standard of review for denials of motions to intervene in


                                       4
1    criminal cases.   We also hold that the district court did not err

2    in sealing certain documents containing classified information,

3    but we urge district courts to avoid sealing documents in their

4    entirety unless necessary to serve a compelling governmental

5    interest such as national security.

6                                 BACKGROUND

7         In a thirty-count indictment, both defendants were charged

8    with conspiracy and attempt to commit money laundering and to

9    provide material support to a designated terrorist organization.

10   Aref was also charged with making false statements to federal

11   officers.

12        The Government alleged that the defendants agreed to work

13   with a cooperator in a scheme to conceal the source of $50,000.

14   The cooperator told the defendants that the money came from the

15   sale of a surface-to-air missile to a designated terrorist group

16   called Jaish-e-Mohammed.    The missile was to be fired at a target

17   in New York City.   A jury found Hossain guilty on all twenty-

18   seven counts against him.   Aref was convicted on ten counts and

19   acquitted on the others.    We address the defendants’ challenges

20   to the evidence against them in the accompanying summary order,

21   and we recount only those facts relevant to the district court’s

22   handling of classified information.

23        During pretrial discovery, the Government sought protective

24   orders pursuant to CIPA section 4, 18 U.S.C. app. 3 § 4, and


                                       5
1    Federal Rule of Criminal Procedure 16(d)(1).   The orders would

2    permit it to withhold classified information that might otherwise

3    have been discoverable.   The district court held a series of ex

4    parte, in camera conferences with the Government relating to the

5    classified information.   The court also held an ex parte, in

6    camera conference with defense counsel to assist the court in

7    deciding what information would be helpful to the defense.

8         On January 20, 2006, Aref moved to: (1) suppress all

9    evidence against him as the fruit of illegal electronic

10   surveillance, (2) dismiss the indictment, and (3) direct the

11   Government to admit or deny illegal electronic surveillance

12   against him and to provide all documentation of intercepted

13   communications.   Aref based this motion on an article in The New

14   York Times, stating that “different officials agree that the

15   [National Security Agency’s] domestic operations played a role in

16   the arrest” of Aref and Hossain.

17        On March 10, 2006, the Government filed an ex parte

18   Opposition to Aref’s motion (the “March 10, 2006 Opposition”),

19   which the Court reviewed in camera.    That same day, the district

20   court denied the motion in an order sealed from the public and

21   the defendants (the “March 10, 2006 Order”), in which it made

22   certain findings under seal.   It also issued a brief public order

23   stating that it had denied the motion.




                                        6
1           A week later, the district court issued two sealed orders

2    granting in part and denying in part the Government’s motions for

3    protective orders.    Later that month, the defendants asked for

4    the district court’s three sealed orders–the March 10, 2006 Order

5    and the two orders resolving the Government’s motions for

6    protective orders.    The district court denied that request, and

7    Aref sought a writ of mandamus from this Court ordering: (1) the

8    district court to vacate the sealed orders and to provide Aref

9    with unredacted versions of the Government’s filings, (2) the

10   Government to disclose any warrantless surveillance of Aref’s

11   communications, and (3) the district court to suppress all

12   evidence against him as derived from illegal warrantless

13   surveillance and to dismiss the indictment.    See Aref v. United

14   States, 452 F.3d 202, 205 (2d Cir. 2006) (per curiam).    The NYCLU

15   moved to intervene to gain access to all sealed orders of the

16   district court.    We dismissed in part and denied in part Aref’s

17   petition and denied the NYCLU’s intervention motion.    See id. at

18   207.

19          On March 28, 2006, the district court issued a Decision and

20   Order finding that both the Government’s March 10 Opposition and

21   the court’s March 10, 2006 Order should be sealed because “the

22   Government’s interest in protecting the national security and

23   preventing the dissemination of classified information outweighs

24   the defendants’ and/or the public’s right of access to these


                                       7
1    materials.”   The district court reasoned that the March 10, 2006

2    Opposition and Order “were so limited in scope and so

3    interrelated with classified information, [that] the filing of

4    redacted materials . . . that did not divulge classified

5    information would be impossible.”

6         On July 6, 2006, the NYCLU moved to intervene to secure

7    public access to as much of the March 10, 2006 Opposition and

8    Order “as [could] be made public without compromising

9    legitimately classified national security information.”    The

10   NYCLU also moved for public access to those documents.

11        Despite its earlier sealing decision, the district court,

12   in response to the NYCLU’s motion, instructed the Government to

13   file publicly as much of its March 10, 2006 Opposition as it

14   could without jeopardizing national security.   The Government

15   publicly filed a redacted version of that document disclosing

16   only a few unclassified paragraphs describing Aref’s motion; and

17   it provided the name and position of the official whose

18   declaration was submitted to support the March 10, 2006

19   Opposition.

20        On February 22, 2007, the district court denied the NYCLU’s

21   motions to intervene and for public access, reaffirming its view

22   that “there could be no public access” to the March 10, 2006

23   Opposition and Order “without compromising classified national

24   security information.”   Because “the issue raised in the NYCLU’s


                                      8
1    application was, in essence, decided before the [motion to

2    intervene] was made and was based upon the standard advocated for

3    by the NYCLU,” the district court denied the NYCLU’s motion to

4    intervene.

5         The defendants and the NYCLU now appeal.

6                                  DISCUSSION

7         The defendants argue that the district court improperly

8    denied them access to classified information during discovery.

9    The NYCLU maintains that the district court erred in denying its

10   motions to intervene and for public access.     We reject these

11   arguments.

12   I.   CIPA

13        CIPA establishes procedures for handling classified

14   information in criminal cases.2    The statute was meant to

15   “protect[] and restrict[] the discovery of classified information

16   in a way that does not impair the defendant’s right to a fair

17   trial.”     United States v. O’Hara, 301 F.3d 563, 568 (7th Cir.

18   2002).

19        CIPA section 4 sets out procedures for “[d]iscovery of

20   classified information by defendants”:




     2
       CIPA defines “classified information” as “information or
     material that has been determined by the United States Government
     pursuant to an Executive order, statute, or regulation, to
     require protection against unauthorized disclosure for reasons of
     national security.” 18 U.S.C. app. 3 § 1(a).

                                        9
 1        The [district] court, upon a sufficient showing, may
 2        authorize the United States to delete specified items
 3        of classified information from documents to be made
 4        available to the defendant through discovery under the
 5        Federal Rules of Criminal Procedure, to substitute a
 6        summary of the information for such classified
 7        documents, or to substitute a statement admitting
 8        relevant facts that the classified information would
 9        tend to prove. The court may permit the United States
10        to make a request for such authorization in the form of
11        a written statement to be inspected by the court alone.
12
13   18 U.S.C. app. 3 § 4.

14        This provision clarifies district courts’ power under

15   Federal Rule of Criminal Procedure 16(d)(1) to issue protective

16   orders denying or restricting discovery for good cause.     S. Rep.

17   No. 96-823, at 6 (1980), as reprinted in 1980 U.S.C.C.A.N. 4294,

18   4299-4300.   The Advisory Committee notes to Rule 16 make clear

19   that “good cause” includes “the protection of information vital

20   to the national security.”   Fed. R. Crim. P. 16 advisory

21   committee’s note to 1966 amendment.

22        It is important to understand that CIPA section 4

23   presupposes a governmental privilege against disclosing

24   classified information.   It does not itself create a privilege.

25   United States v. Mejia, 448 F.3d 436, 455 & n.15 (D.C. Cir.

26   2006); see also H.R. Rep. No. 96-831, pt. 1, at 27 (1980) (noting

27   that CIPA “is not intended to affect the discovery rights of a

28   defendant”).   Although Rule 16(d)(1) authorizes district courts

29   to restrict discovery of evidence in the interest of national

30   security, it leaves the relevant privilege undefined.


                                     10
1         The most likely source for the protection of classified

2    information lies in the common-law privilege against disclosure

3    of state secrets.   See Zuckerbraun v. Gen. Dynamics Corp., 935

4    F.2d 544, 546 (2d Cir. 1991).   That venerable evidentiary

5    privilege “allows the government to withhold information from

6    discovery when disclosure would be inimical to national

7    security.”   Id.   It would appear that classified information at

8    issue in CIPA cases fits comfortably within the state-secrets

9    privilege.   Compare id. with Classified National Security

10   Information, Exec. Order No. 13,292, § 1.2, 68 Fed. Reg. 15315,

11   15315-16 (Mar. 25, 2003) (recognizing three levels of classified

12   national security information, all of which require the

13   classifying officer to determine that disclosure reasonably could

14   be expected to damage national security).

15        We are not unaware that the House of Representatives Select

16   Committee on Intelligence stated categorically in its report on

17   CIPA that “the common law state secrets privilege is not

18   applicable in the criminal arena.”    H.R. Rep. 96-831, pt. 1, at

19   15 n.12.   That statement simply sweeps too broadly.

20        The Committee relied on three cases for this remarkable

21   proposition: Reynolds v. United States, 345 U.S. 1 (1953),

22   United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), and United

23   States v. Andolschek, 142 F.2d 503 (2d Cir. 1944).     See H.R. Rep.




                                      11
1    96-831, pt.1, at 15 n.12.   A close reading of these cases does

2    not support the Committee’s conclusion.

3         In Reynolds, the Supreme Court held that a court in a civil

4    case may deny evidence to plaintiffs if “there is a reasonable

5    danger that compulsion of the evidence will expose military

6    matters which, in the interest of national security, should not

7    be divulged.”   345 U.S. at 10.   In contrast, the Court explained

8    that in criminal cases such as Andolschek, the Government was not

9    permitted to “undertake prosecution and then invoke its

10   governmental privileges to deprive the accused of anything which

11   might be material to his defense.”     Id. at 12 & n.27.    Similarly,

12   we acknowledged in Coplon that the Government possesses a

13   privilege against disclosing “state secrets,” but held that the

14   privilege could not prevent the defendant from receiving evidence

15   to which he has a constitutional right.     See 185 F.2d at 638.

16   These cases, therefore, do not hold that the Government cannot

17   claim the state-secrets privilege in criminal cases.       Instead,

18   they recognize the privilege, but conclude that it must give way

19   under some circumstances to a criminal defendant’s right to

20   present a meaningful defense.

21        Accordingly, we hold that the applicable privilege here is

22   the state-secrets privilege.    See United States v. Klimavicius-

23   Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (holding that state-

24   secrets privilege applies in CIPA cases).     That said, Reynolds,


                                       12
1    Andolschek, and Coplon make clear that the privilege can be

2    overcome when the evidence at issue is material to the defense.

3    See Reynolds, 345 U.S. at 12 & n.27.    This standard is consistent

4    with Roviaro v. United States, 353 U.S. 53 (1957), where the

5    Supreme Court held in a criminal case that the Government’s

6    privilege to withhold the identity of a confidential informant

7    “must give way” when the information “is relevant and helpful to

8    the defense of an accused, or is essential to a fair

9    determination of a cause.”    Id. at 60-61.   Indeed, we have

10   interpreted “relevant and helpful” under Roviaro to mean

11   “material to the defense.”    United States v. Saa, 859 F.2d 1067,

12   1073 (2d Cir. 1988).    We have also noted that the government-

13   informant privilege at issue in Roviaro and the state-secrets

14   privilege are part of “the same doctrine.”     Coplon, 185 F.2d at

15   638.

16          We therefore adopt the Roviaro standard for determining when

17   the Government’s privilege must give way in a CIPA case.     Other

18   circuits agree.    See Klimavicius-Viloria, 144 F.3d at 1261;

19   United States v. Varca, 896 F.2d 900, 905 (5th Cir. 1990); United

20   States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989); United

21   States v. Smith, 780 F.2d 1102, 1107-10 (4th Cir. 1985) (en

22   banc); United States v. Pringle, 751 F.2d 419, 427-28 (1st Cir.

23   1984).




                                      13
1         Applying this standard, the district court must first decide

2    whether the classified information the Government possesses is

3    discoverable.   If it is, the district court must then determine

4    whether the state-secrets privilege applies because: (1) there is

5    “a reasonable danger that compulsion of the evidence will expose

6    . . . matters which, in the interest of national security, should

7    not be divulged,” and (2) the privilege is “lodged by the head of

8    the department which has control over the matter, after actual

9    personal consideration by that officer.”    Reynolds, 345 U.S. at

10   8, 10 (footnote omitted).

11        If the evidence is discoverable but the information is

12   privileged, the court must next decide whether the information is

13   helpful or material to the defense, i.e., useful “to counter the

14   government’s case or to bolster a defense.”    United States v.

15   Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993) (interpreting

16   materiality standard under Federal Rule of Criminal Procedure

17   16(a)(1)).   To be helpful or material to the defense, evidence

18   need not rise to the level that would trigger the Government’s

19   obligation under Brady v. Maryland, 373 U.S. 83 (1963), to

20   disclose exculpatory information.    See id. at 87.   “[I]nformation

21   can be helpful without being ‘favorable’ in the Brady sense.”

22   Mejia, 448 F.3d at 457.

23        The district court’s decision to issue a protective order

24   under CIPA section 4 and Federal Rule of Criminal Procedure



                                     14
1    16(d)(1) is reviewed for abuse of discretion.   See United States

2    v. Delia, 944 F.2d 1010, 1018 (2d Cir. 1991).   Whether evidence

3    is “helpful” or “material to the defense” is also within the

4    district court’s discretion.   See DiBlasio v. Keane, 932 F.2d

5    1038, 1042 (2d Cir. 1991).

6         We find no abuse of discretion here.   For purposes of this

7    opinion, we assume without deciding that the classified

8    information the Government presented to the district court was

9    discoverable.   We have carefully reviewed the classified

10   information and the Government’s sealed submissions and agree

11   with the district court that the Government has established a

12   reasonable danger that disclosure would jeopardize national

13   security.   See Reynolds, 345 U.S. at 10.

14        The Government failed, however, to invoke the privilege

15   through the “head of the department which has control over the

16   matter, after actual personal consideration by that officer.” Id.

17   at 8.   This is not necessarily fatal.   We have previously excused

18   the Government’s failure to comply with this formality where

19   involvement of the department head would have been “of little or

20   no benefit” because disclosure of classified information was

21   prohibited by law.   See Clift v. United States, 597 F.2d 826,

22   828-29 (2d Cir. 1979) (Friendly, J.) (internal quotation marks

23   omitted).   We similarly excuse the failure to involve the

24   department head here.   It would “be of little or no benefit” for

25   us to remand for the purpose of having the department head agree

                                     15
1    that disclosure of the classified information would pose a risk

2    to national security here.   Based on our holding today, however,

3    we trust that this issue will not arise in future CIPA cases.

4          Finally, we agree that the district court did not deny the

5    defendants any helpful evidence.     Indeed, we commend the district

6    court for its thorough scrutiny of the classified information.

7          We also reject Aref’s contention that the district court

8    improperly held ex parte hearings with the Government when

9    evaluating the classified material.    Both CIPA section 4 and Rule

10   16(d)(1) authorize ex parte submissions.    See 18 U.S.C. app. 3 §

11   4; Fed. R. Crim. P. 16(d)(1).   “In a case involving classified

12   documents, . . . ex parte, in camera hearings in which government

13   counsel participates to the exclusion of defense counsel are part

14   of the process that the district court may use in order to decide

15   the relevancy of the information.”    Klimavicius-Viloria, 144 F.3d

16   at 1261.   When the “government is seeking to withhold classified

17   information from the defendant, an adversary hearing with defense

18   knowledge would defeat the very purpose of the discovery rules.”

19   H.R. Rep. 96-831, pt. 1, at 27 n.22.

20   II.   Motion to Intervene

21         This Court has not yet established the standard by which we

22   review a district court’s denial of a motion to intervene in a

23   criminal case.   Indeed, we have implied, but not squarely held,

24   that such a motion is appropriate to assert the public’s First

25   Amendment right of access to criminal proceedings.    We now hold

                                     16
1    that: (1) such a motion is proper, and (2) the applicable

2    standard of review is abuse of discretion.

3         The Federal Rules of Criminal Procedure make no reference to

4    a motion to intervene in a criminal case.      United States v.

5    Kollintzas, 501 F.3d 796, 800 (7th Cir. 2007).      However, such

6    motions are common in this Circuit to assert the public’s First

7    Amendment right of access to criminal proceedings.      See, e.g.,

8    ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004); United

9    States v. Suarez, 880 F.2d 626, 628 (2d Cir. 1989); In re N.Y.

10   Times Co., 828 F.2d 110, 113 (2d Cir. 1987); In re Herald Co.,

11   734 F.2d 93, 96 (2d Cir. 1984).    Federal courts have authority to

12   “formulate procedural rules not specifically required by the

13   Constitution or the Congress” to “implement a remedy for

14   violation of recognized rights.”       United States v. Hasting, 461

15   U.S. 499, 505 (1983).   Because “vindication of [the] right [of

16   public access] requires some meaningful opportunity for protest

17   by persons other than the initial litigants,” In re Herald Co.,

18   734 F.2d at 102, we now invoke this authority to hold that a

19   motion to intervene to assert the public’s First Amendment right

20   of access to criminal proceedings is proper.      Cf. In re

21   Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (approving

22   motion to intervene as an “appropriate procedural mechanism” to

23   assert right of access).




                                       17
1         In civil cases, this Court reviews denials of motions to

2    intervene for abuse of discretion.   See DSI Assocs. LLC v. United

3    States, 496 F.3d 175, 182-83 (2d Cir. 2007).   We see no reason to

4    apply a different standard of review here.   The district court

5    denied the NYCLU’s motion to intervene after fully considering

6    the issue that the NYCLU raised, engaging in the same legal

7    analysis that the NYCLU urged, and ultimately rejecting the

8    argument on the merits.   Under the circumstances, there was no

9    abuse of discretion.

10   III. Public Access to Sealed Documents

11        The NYCLU and amici argue that the district court erred by

12   sealing in its entirety the March 10, 2006 Order and sealing

13   nearly all of the March 10, 2006 Opposition.   We disagree.

14        “[I]t is well established that the public and the press have

15   a qualified First Amendment right to attend judicial proceedings

16   and to access certain judicial documents.”   Lugosch v. Pyramid

17   Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (internal

18   quotation marks omitted).   The parties appear to agree that a

19   First Amendment right of access attached to the district court’s

20   March 10, 2006 Order, but disagree as to whether the March 10,

21   2006 Opposition was the sort of judicial document to which the

22   public has a right of access.   We need not settle this dispute.

23   Even assuming a right to the documents, the district court did

24   not err in denying public access to them.


                                     18
1         Documents to which the public has a qualified right of

2    access may be sealed only if “specific, on the record findings

3    are made demonstrating that closure is essential to preserve

4    higher values and is narrowly tailored to serve that interest.”

5    Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 13-14 (1986)

6    (internal quotation marks omitted).    The district court found

7    that sealing the March 10, 2006 Opposition and Order met this

8    standard because the Executive classified the documents for

9    national-security purposes.    The NYLCU and amici argue that the

10   district court’s findings were insufficient because the court:

11   (1) erroneously ruled that it lacked the power to review the

12   Government’s invocation of the security classifications; (2)

13   failed to make specific findings on the record to support the

14   conclusion that “higher values” justified sealing; and (3)

15   improperly deferred to the Government’s view of what could and

16   could not be disclosed to the public.

17        First, we do not decide whether the district court erred in

18   ruling that it lacked power to review security classifications

19   because any such error was harmless.    See Fed. R. Crim. P. 52(a).

20   We have reviewed the sealed record and conclude that the

21   Government established the classification levels employed (e.g.,

22   “Confidential,” “Secret,” and “Top Secret”) were properly invoked

23   pursuant to Executive Order.




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1         Second, the NYCLU contends that the district court’s public

2    findings were perfunctory recitations of the applicable legal

3    standard, and that the district court thus failed to support

4    sealing the documents with specific, on-the-record findings.      See

5    In re N.Y. Times Co., 828 F.2d at 116 (“Broad and general

6    findings by the trial court . . . are not sufficient to justify

7    closure.”).   However, we have held that while the findings must

8    be made on the record for our review, “such findings may be

9    entered under seal, if appropriate.”   Id.   The district court

10   made sufficiently specific findings under seal that justified

11   denying public access to the documents.   Moreover, based on our

12   own in camera review of the Government’s submission to the

13   district court, we conclude that the Government supported the

14   need to keep the Opposition and Order sealed through a

15   declaration or declarations from persons whose position and

16   responsibility support an inference of personal knowledge; that

17   the district court was made aware of particular facts and

18   circumstances germane to the issues in this case; and that the

19   Government made a sufficient showing that disclosure of the

20   information sought would impair identified national interests in

21   substantial ways.   Therefore, the district court’s ruling as to

22   higher values was supported by specific findings based on record

23   evidence.




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1         Third, while it is the responsibility of the district court

2    to ensure that sealing documents to which the public has a First

3    Amendment right is no broader than necessary, see Press-Enter.

4    Co., 478 U.S. at 13-14, our independent review of the sealed

5    documents satisfies us that closure here was narrowly tailored to

6    protect national security.   Thus, any error the district court

7    might have committed in deferring to the Government as to whether

8    more of the March 10, 2006 Opposition could be made public was

9    harmless.

10        Although we affirm the district court in this case, we

11   reinforce the requirement that district courts avoid sealing

12   judicial documents in their entirety unless necessary.

13   Transparency is pivotal to public perception of the judiciary’s

14   legitimacy and independence.   “The political branches of

15   government claim legitimacy by election, judges by reason.      Any

16   step that withdraws an element of the judicial process from

17   public view makes the ensuing decision look more like fiat and

18   requires rigorous justification.”      Hicklin Eng’g, L.C. v.

19   Bartell, 439 F.3d 346, 348 (7th Cir. 2006).      Because the

20   Constitution grants the judiciary “neither force nor will, but

21   merely judgment,” The Federalist No. 78 (Alexander Hamilton),

22   courts must impede scrutiny of the exercise of that judgment only

23   in the rarest of circumstances.    This is especially so when a

24   judicial decision accedes to the requests of a coordinate branch,



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1    lest ignorance of the basis for the decision cause the public to

2    doubt that “complete independence of the courts of justice

3    [which] is peculiarly essential in a limited Constitution.”    Id.

4         We recognize, however, that transparency must at times yield

5    to more compelling interests.   “It is obvious and unarguable that

6    no governmental interest is more compelling than the security of

7    the Nation.”   Haig v. Agee, 453 U.S. 280, 307 (1981) (internal

8    quotation marks omitted).   Given the legitimate national-security

9    concerns at play here and the nature of the underlying documents

10   at issue, we believe the district court acted appropriately in

11   sealing the March 10, 2006 Opposition and Order.

12                               CONCLUSION

13        For the foregoing reasons, and for those stated in the

14   accompanying summary order, we: (1) AFFIRM Aref’s and Hossain’s

15   convictions, and (2) AFFIRM denial of the NYCLU’s motions to

16   intervene and for public access.




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