                                              Filed:   May 13, 2003

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4162



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellant,

          versus


ZACARIAS MOUSSAOUI,

                                             Defendant - Appellee,

          and

ABC, INC.; ASSOCIATED PRESS; CABLE NEWS
NETWORK LP, LLLP; CBS BROADCASTING, INC.; THE
HEARST CORPORATION; NATIONAL BROADCASTING
COMPANY, INC.; THE NEW YORK TIMES COMPANY; THE
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS;
THE STAR TRIBUNE COMPANY; TRIBUNE COMPANY; AND
THE WASHINGTON POST,

                                            Movants - Intervenors.



                               ORDER



          A consortium of media companies and an organization

(collectively, “Intervenors”)1 moves to intervene for the limited


     1
          Intervenors are ABC, Inc.; Associated Press; Cable News
Network LP, LLLP; CBS Broadcasting Inc.; The Hearst Corporation;
National Broadcasting Company, Inc.; The New York Times Company;
The Reporters Committee for Freedom of the Press; the Star Tribune
Company; Tribune Company; and The Washington Post.
purpose of obtaining access to certain portions of the record and

oral argument in this appeal.2   We grant the motion to intervene

for a limited purpose.   Our ruling with respect to the motion for

access to portions of the record and oral argument is set forth

below.


                                 I.

           Zacarias Moussaoui has been indicted on numerous charges

stemming from his alleged participation in the al Qaeda plot that

culminated in the attacks of September 11, 2001.   In the course of

preparing for his capital trial, Moussaoui, who is proceeding pro

se, sought access to several captured leaders of al Qaeda.     The

Federal Public Defender, acting as Moussaoui’s standby counsel,

supported these requests.   In a sealed order, the district court

granted Moussaoui’s request as to one of these operatives.     The

court directed that the operative’s testimony be taken by means of

a deposition pursuant to Federal Rule of Criminal Procedure 15, and

set forth measures governing the conduct of the deposition.

          The Government timely appealed the order of the district

court.   In addition to its notice of appeal, the Government filed

a petition for a writ of mandamus--styled In re United States,




     2
          A randomly selected panel has been assigned to hear
argument in the underlying appeal. A second panel, also randomly
selected, has been assigned for the purpose of ruling on these
motions.

                                 2
No. 03-4261--seeking the same relief.3      Although the appeal and the

mandamus petition have not been consolidated, they are being

handled together and are scheduled to be argued simultaneously on

June 3.

          Due to the sensitive nature of the information involved

in this appeal, much of which is classified top secret, the

pleadings and motions filed by Moussaoui, standby counsel, and the

Government   have   been   filed   under   seal,   at   least   initially.

Additionally, based upon our determination that oral argument would

involve extensive discussion of classified material, we granted the

Government’s motion to seal oral argument. Intervenors now contend

that such extensive sealing is both unnecessary and violative of

their constitutional and common law rights of access to judicial

materials and proceedings.


                                   II.

          The right of access to judicial documents exists at

common law and under the First Amendment.          See Stone v. Univ. of

Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988).         The common

law provides a presumptive right to inspect and copy all judicial

records and documents, see Nixon v. Warner Communications, Inc.,



     3
          Intervenors filed substantively identical motions to
intervene for a limited purpose and for access to pleadings and
oral argument with respect to the petition for a writ of mandamus.
Our rulings on Intervenors’ motions in this case apply equally to
their motions in No. 03-4261.

                                    3
435 U.S. 589, 597 (1978), while the First Amendment provides a

“guarantee of access ... only to particular judicial records and

documents,” Stone, 855 F.2d at 180. The First Amendment guarantees

access when (1) “the place and process have historically been open

to the press and general public” and (2) “public access plays a

significant positive role in the functioning of the particular

process in question.” Press-Enterprise Co. v. Superior Ct. (Press-

Enterprise II), 478 U.S. 1, 8 (1986); see Baltimore Sun Co. v.

Goetz, 886 F.2d 60, 64 (4th Cir. 1989).   The right of the press and

public to attend judicial proceedings is a creature of the First

Amendment.   See In re Knight Publ’g Co., 743 F.2d 231, 233 (4th

Cir. 1984) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555, 580 (1980) (opinion of Burger, C.J.)).

          The value of openness in judicial proceedings can hardly

be overestimated.     “The political branches of government claim

legitimacy by election, judges by reason.   Any step that withdraws

an element of the judicial process from public view makes the

ensuing decision look more like fiat, which requires compelling

justification.”    Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th

Cir. 2000); see Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555, 572 (1980) (opinion of Burger, C.J.) (“People in an open

society do not demand infallibility from their institutions, but it

is difficult for them to accept what they are prohibited from

observing.”).     In criminal proceedings, “[o]penness ... enhances


                                  4
both the basic fairness of the criminal trial and the appearance of

fairness so essential to public confidence in the system.”        Press-

Enterprise Co. v. Superior Ct. (Press-Enterprise I), 464 U.S. 501,

508 (1984).

          Public criminal trials also have “a community therapeutic

value”:

          Criminal acts, especially violent crimes,
          often provoke public concern, even outrage and
          hostility; this in turn generates a community
          urge to retaliate and desire to have justice
          done....   When the public is aware that the
          law is being enforced and the criminal justice
          system is functioning, an outlet is provided
          for   these   understandable   reactions   and
          emotions.   Proceedings held in secret would
          deny this outlet and frustrate the broad
          public    interest;   by   contrast,    public
          proceedings vindicate the concerns of the
          victims and the community in knowing that
          offenders are being brought to account for
          their criminal conduct ....

Id. at 508-09.     This value, of providing to the community at large

a sense that justice has been done, is particularly relevant in the

prosecution   of   Moussaoui.    Thus   far,   Moussaoui   is   the   only

individual being prosecuted in a civilian court for complicity in

the September 11 attacks, and the proceedings have been the subject

of intense public interest throughout the country.         In this vein,

it is significant that no small amount of interest in the trial

stems from concern about whether the government is affording

sufficient protection to Moussaoui’s constitutional rights and the

rights of other terrorism suspects.


                                   5
            Despite its importance, the right of access--whether

guaranteed    by   the   common   law   or   the   First   Amendment--is    not

absolute.     The common law right of access must yield to the

supervisory power of the court to control its own records when “the

public’s right of access is outweighed by competing interests.” In

re Knight Publ’g, 743 F.2d at 235; see Nixon, 435 U.S. at 598

(describing    circumstances      in    which   competing    interests     have

outweighed common law right of access).            When access is guaranteed

by the First Amendment, it may be curtailed only in favor of a

compelling Governmental interest, and the limitation of access must

be “narrowly tailored to serve that interest.” Globe Newspaper Co.

v. Superior Ct., 457 U.S. 596, 606-07 (1982); see Press-Enterprise

I, 464 U.S. at 510 (“The presumption of openness may be overcome

only by an overriding interest based on findings that closure is

essential to preserve higher values and is narrowly tailored to

serve that interest.”).

                                  A.    CIPA

            The Classified Information Procedures Act (CIPA), 18

U.S.C.A. App. 3 §§ 1-16 (West 2000 & Supp. 2003) sets forth

procedures for the handling of classified information in criminal

cases.   It was enacted for the purpose of preventing “graymail,” a

practice in which a criminal defendant attempts to derail his

prosecution by threatening to divulge classified information during

trial.   See United States v. Smith, 780 F.2d 1102, 1105 (4th Cir.


                                        6
1985).   Under CIPA, the district court may be required to conduct

a pretrial hearing to determine whether classified information the

defendant   intends   to   disclose      during    the    course    of    trial   is

relevant and admissible.       See 18 U.S.C.A. App. 3 § 6(a).                  CIPA

further provides that if the Attorney General certifies that a

public   hearing   will    result   in    the     disclosure       of    classified

information, the hearing will be held in camera.                   See id.     CIPA

allows the Government to pursue an interlocutory appeal of certain

orders entered pursuant to its provisions.               See id. § 7(a).

            The Government argues that the question of whether the

public is entitled to access to the pleadings and argument in this

case is answered, in the negative, by CIPA. We disagree with the

Government’s contention that because this appeal is related to

CIPA, all of the materials and the oral argument must be held under

seal.4   As Intervenors note, CIPA alone cannot justify the sealing

of oral argument and pleadings.       See In re Wash. Post Co., 807 F.2d

383, 393 (4th Cir. 1986) (noting that the district court must

conduct constitutional inquiry even when CIPA applies because

“[t]he district court may not simply assume that Congress has

struck the correct constitutional balance”); United States v.



     4
          Additionally, we note that throughout its opposition to
Intervenors’ motion, the Government has phrased its arguments as
though every document filed with this court contains classified
information. This is not correct, and we decline the Government’s
implicit invitation to gloss over the significant differences in
the kinds of materials that have been presented to us.

                                      7
Poindexter, 732 F. Supp. 165, 167 n.9 (D.D.C. 1990) (observing that

“CIPA obviously cannot override a constitutional right of access”).

Indeed, even in the absence of CIPA, the mere assertion of national

security concerns by the Government is not sufficient reason to

close a hearing or deny access to documents.         See In re Wash. Post,

807 F.2d at 391-92.            Rather, we must independently determine

whether, and to what extent, the proceedings and documents must be

kept under seal.     See United States v. Pelton, 696 F. Supp. 156,

159 (D. Md. 1986).       As noted below, Intervenors do not seek access

to classified information, and any such information will remain

under seal.

                     B.       Balancing the Interests

                         1.    Classified Information

           At the outset, we note that there can be no doubt that

the Government’s interest in protecting the security of classified

information is a compelling one.           See Dep’t of Navy v. Egan, 484

U.S. 518, 527 (1988).           And, Intervenors disavow any desire to

obtain   the   release    of    classified   information.5   We   therefore


     5
          Nevertheless, Intervenors maintain that we need not defer
to the classification decisions of the Government. Implicit in
this assertion is a request for us to review, and perhaps reject,
classification decisions made by the executive branch. This we
decline to do. See United States v. Smith, 750 F.2d 1215, 1217
(4th Cir. 1984) (“[T]he government ... may determine what
information is classified.    A defendant cannot challenge this
classification. A court cannot question it.”).

          Intervenors also note that much of the information
contained in the pleadings has been reported publicly and suggest

                                       8
conclude that all classified information filed with this court in

relation to this appeal will remain under seal.

                    2.   Moussaoui’s Pleadings

          Since the beginning of the proceedings against him in the

district court, Moussaoui has filed numerous pro se pleadings in

this court, none of which has been classified.       Our practice with

respect to a pleading by Moussaoui is as follows.        See generally

United States v. Moussaoui, No. 03-4162 (4th Cir. Apr. 18, 2003)

(order designating court security officer).           The pleading is

initially filed under seal to provide the Government an opportunity

to submit proposed redactions.6     The pleading and motion to redact

are then submitted to the panel assigned to this case, which rules

on the pleading and on the motion.      The redacted pleading is then

placed in the public file.

          Intervenors    do   not   contest   the   adequacy   of   this

procedure, and we decline to alter it.        Redaction of Moussaoui’s

pleadings is necessary to omit irrelevant and inflammatory material



that for this reason, sealing is no longer required. This court
has previously rejected such an argument, noting that “[i]t is one
thing for a reporter or author to speculate or guess that a thing
may be so or even, quoting undisclosed sources, to say that it is
so; it is quite another thing for one in a position to know of it
officially to say that it is so.” Alfred A Knopf, Inc. v. Colby,
509 F.2d 1362, 1370 (4th Cir. 1975); see Pelton, 696 F. Supp. at
158   (“[T]here   is  a   difference   between   speculation   and
confirmation.”).
     6
          The motion to redact is placed in the public file, but
the proposed redactions are kept under seal.

                                    9
and to prevent Moussaoui from attempting to communicate certain

information to others, see Special Administrative Measures for

Zacarias Moussaoui, § 1(c), news.findlaw.com/hdocs/docs/moussaoui/

usmouss41702gsam.pdf (last visited May 3, 2003).           The interest of

the   public   in   the   flow   of   information   is   protected   by   our

exercising independent judgment concerning redactions.          See United

States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (cautioning that

a court may not delegate task of redacting documents); Pelton, 696

F. Supp. at 159 n.2 (noting that court would “carefully compare the

redacted version [of a transcript] to the unredacted version for

accuracy and to determine whether all the proposed deletions are

necessary”).

                                 3.   Briefs

           To date, three briefs have been filed:         the Government’s

initial brief, an Appellee’s brief filed by the Federal Public

Defender, and the Government’s reply brief.              All of the briefs

contain classified information, and for this reason they were

initially filed under seal with the Court Security Officer assigned

to this case.       As of this writing, a redacted version of the

Government’s initial brief has been placed in the public file, and

the remaining briefs will also be filed publicly when the redaction

process is complete.      In accordance with our duty to independently

examine the Government’s redactions, we will carefully compare the

redacted version of each brief to the unredacted version to ensure


                                      10
that the redactions of unclassified material are no greater than

necessary.7     See Pelton, 696 F. Supp. 159 n.2.       That process is not

affected by this order.

                            4.     Joint Appendix

              The joint appendix for this appeal consists of four

parts:     an ex parte appendix filed by the Government, which

consists   solely    of   highly    classified    documents;   an   ex   parte

appendix filed by the Federal Public Defender, which also consists

solely   of    classified   documents;      a   classified   appendix    which

contains the remaining classified information pertinent to this

appeal, but which is not solely comprised of classified documents;

and an unclassified appendix, which is presently under seal because

it comprises materials kept under seal by the district court.              See

Local Rule 10(d) (noting that material placed under seal by the

district court remains under seal unless the protective order is

modified or amended by this court); cf. Stone, 855 F.2d at 182

(noting that district court has “superior vantage point” from which

to make decisions regarding sealing of materials before it).

              For the reasons discussed above, we conclude that the ex

parte appendices must be kept under seal, in their entirety,

because they consist entirely of classified information. We doubt,

however, that either the unclassified information in the classified


     7
          We will do the same with the pleadings related to the
Government’s petition for a writ of mandamus, a redacted version of
which is now publicly available.

                                       11
appendix, or the documents in the unclassified appendix, need to

remain sealed in their entirety.       As noted above, while the

classified appendix contains a number of classified documents, not

all of the documents therein are classified, and it appears that at

least some of the documents that contain classified information

could be made public (assuming a common law or First Amendment

right of access attaches) after classified material is redacted.

The unclassified appendix contains a wide variety of materials,

such as pleadings, hearing and deposition transcripts, and some

discovery materials.     Some of these documents fall within the

common law presumption of access, while others are subject to the

greater right of access provided by the First Amendment.           Still

others may not qualify as “judicial records” at all.      See Amodeo,

44 F.3d at 145-46 (discussing when a document filed with the court

is   a   “judicial   record”).   We   therefore   must   examine     the

unclassified appendix document by document to determine, for each

document, the source of the right of access (if any such right

exists).    See Stone, 855 F.2d at 181.      As to those documents

subject to a right of access, we must then conduct the appropriate

balancing to determine whether the remainder of the document should

remain sealed, in whole or in part.

           The burden of establishing that a particular document

should be sealed rests on the party promoting the denial of access.

See Boone v. City of Suffolk, 79 F. Supp. 2d 603, 606 (E.D. Va.


                                 12
1999).   Accordingly, we think it is appropriate to require the

Government to justify the continued sealing of the unclassified

materials in the classified and unclassified appendices.         We

therefore direct the Government to do the following within ten days

of the entry of this order:

     •    As to the classified appendix, identify, with as much
          specificity as possible, what material is classified;

     •    As to each document in the classified and unclassified
          appendices, present its views concerning whether the
          document is subject to a common law or First Amendment
          right of access;

     •    As to all material identified as (a) unclassified and (b)
          subject to a right of access, offer argument concerning
          continued sealing. This argument shall account for the
          fact that sealing an entire document is inappropriate
          when selective redaction will adequately protect the
          interests involved.    Any proposed redaction shall be
          accompanied by a statement of the reason for the proposed
          redaction.

Upon receipt of the Government’s submission, this court will

proceed to review the unclassified materials in both appendices and

determine which of the documents therein should remain sealed.

                   5.   Miscellaneous Pleadings

          Presently pending before this court is the Federal Public

Defender’s motion to disclose or strike the ex parte appendix. The

primary documents filed in connection with this motion are the

motion itself, the Government’s opposition to the motion, and the

Public Defender’s reply to the opposition.    Redacted versions of

the first two pleadings have been placed in the public file, and a

redacted version of the Public Defender’s reply to the opposition

                                13
will be placed in the public file in due course.                 As with other

redacted documents, we will review the redactions to ensure that

they are no greater than necessary.

            Intervenors    also    protest      the    sealing    of   (1)   the

Government’s certificate of confidentiality and motion to seal oral

argument,    and   (2)    the    motion    to   seal    the   certificate    of

confidentiality and motion to seal oral argument.                The Government

sought to seal these documents on the basis that placing them in

the public file would reveal the substance of the district court

order presently being appealed.            In view of the fact that the

nature of the district court order is apparent from the text of the

Government’s redacted opening brief, which is available to the

press and general public, this justification can no longer stand.

We therefore order that the certificate of confidentiality and

motion to seal argument, and the motion to seal the certificate of

confidentiality and motion to seal oral argument, be unsealed and

placed in the public file.

                            6.    Oral Argument

            It is with respect to oral argument that the Government

presses most strongly its claim that CIPA controls. The Government

maintains that its appeal of the district court order is taken

pursuant to § 7 of CIPA; from this premise, it concludes that the

appeal itself is a “CIPA proceeding” which must be held in camera.

Cf. Poindexter, 732 F. Supp. at 168 & n.10 (stating that First


                                      14
Amendment does not guarantee access to a “CIPA-type” hearing at

which “highly sensitive classified materials” would be discussed).

However, it is not at all clear that the appeal arises from CIPA--

the   Government   asserts   CIPA   as   only   one   of    three   bases    for

appellate    jurisdiction.      More     important,        however,   is    the

significant difference in language between sections 6 and 7 of

CIPA.   Section 6 explicitly requires the district court to hold an

in camera hearing if the Attorney General certifies that classified

information would be revealed by a public hearing, but § 7 contains

no such requirement.    Cf. United States v. Brandon, 247 F.3d 186,

190 (4th Cir. 2001) (noting “fundamental principle of statutory

construction that courts are obligated to give effect to Congress’s

decision to use different language in proximate subsections of the

same statute” (internal quotation marks omitted)).              We therefore

conclude that even if this appeal is authorized by CIPA § 7, that

fact alone does not mandate that the hearing be conducted in a

sealed courtroom.

            We are left with the questions of whether the First

Amendment guarantees access to the hearing and, if so, whether the

sealing of argument is justified by a compelling interest.                  The

first question is easily answered:        There can be no question that

the First Amendment guarantees a right of access by the public to

oral arguments in the appellate proceedings of this court.                  Such

hearings have historically been open to the public, and the very


                                    15
considerations that counsel in favor of openness of criminal trial

support a similar degree of openness in appellate proceedings. Cf.

In re Knight Publ’g, 743 F.3d at 234 (noting “strong presumption in

favor of openness” in criminal proceedings).

          The second question is more difficult.      As discussed

above, the Government’s interest in the security of classified

information is a compelling one, and, as we have noted previously,

Intervenors do not seek access to any classified information.

However, we believe that argument on several of the issues will not

require the discussion of classified information.     We therefore

order that the oral argument in this appeal will be bifurcated.

The first portion of oral argument will take place in a courtroom

open to the press and general public.   The following issues, and

only the following issues, will be discussed during that portion of

the argument:

     •    Whether this court has jurisdiction over the appeal;

     •    Whether separation of powers concerns mandate reversal of
          the district court’s order;

     •    Whether compulsory process reaches an enemy combatant
          held overseas.

While we believe that these issues can be effectively argued

without discussion of classified information, it is possible that

argument on these issues could lead to brief mention of classified

matters. We assume counsel will be mindful of this possibility and

will take care to avoid such references in open court.      Should


                                16
counsel     believe    that     reference      to      classified       information    is

necessary, such a discussion will be reserved to the second part of

oral argument, which will be conducted in a sealed courtroom.

Argument on all issues involving the discussion of classified

information will be reserved to this portion of the hearing.

             Unquestionably, our decision to partially seal argument

infringes, albeit for good reasons, upon the rights of the press

and the public.         We believe, however, that this harm can be

substantially ameliorated by the release of a redacted transcript

of    the   sealed    hearing    as   soon       as    is    practicable     after    the

conclusion of argument.           This will be accomplished through the

following procedure. The sealed portion of the hearing will not be

recorded but rather will be transcribed by a court reporter.                           We

hereby direct the court reporter to produce a written transcript of

the   sealed   proceedings       within     24    hours      of   the    conclusion    of

argument.       This    transcript        will        then   be   submitted    to     the

Government, which will proceed immediately with a classification

review and redaction of the transcript.                        The entire redacted

transcript shall be provided to the court for placement in the

public file no later than five business days after the submission

of the unredacted transcript to the Government.                           In order to

further limit the harm to the public’s right of access, we direct




                                          17
the Government to provide the court with whatever portion of the

transcript has been reviewed and redacted to that point by noon of

each day between the submission of the unredacted transcript and

the release of the final redacted version.


                                   III.

           To summarize, we grant Intervenors’ motion to intervene

for a limited purpose.        With respect to Intervenors’ motion for

access to certain portions of the record and oral argument, we

conclude (and Intervenors do not dispute) that all classified

information involved in this appeal will remain under seal.                For

that reason, we deny the motion for access insofar as it concerns

the ex parte appendices.        The press and general public will be

provided access to unclassified materials in the classified and

unclassified appendices after we have redacted those materials with

the aid of the Government’s submissions, which are due ten days

from the date of this order.       As set forth above, the Government

must   provide   us   with   reasons   for   its   proposed   redactions   of

unclassified materials and specifically identify those materials

that are classified. The certificate of confidentiality and motion

to seal argument, and the motion to seal the certificate and motion




                                       18
to seal argument, are hereby unsealed and will be placed in the

public file.

     Entered at the direction of Chief Judge Wilkins, with the

concurrences of Judge Widener and Judge Niemeyer.



                                    FOR THE COURT


                                    /s/ Patricia S. Connor
                                    ____________________________
                                             Clerk




                               19
