Post-9/11 info access

By Michael Roffe, Contributing Writer

Updated July 2010

After the horrific events of Sept. 11, 2001, the executive and administrative branches of government instituted a series of actions and policies to control access to information, institutions and events deemed vital to the nation’s security.

As the government investigation of the terrorist attacks proceeded in secrecy, members of the press and various civil liberties groups complained that their ability to gather information was being severely restricted. Several lawsuits challenged the restrictions on First Amendment grounds, resulting in mixed decisions in the federal courts. Clearly there has been a struggle to reconcile the requirements of national security with the First Amendment guarantees of a free press and the importance of an informed electorate. First Amendment jurisprudence provides some guidelines, but the issue remains generally unresolved by the courts.

A number of post-9/11 access cases in the federal courts have presented the contentious question: Does the First Amendment provide some protection for news and information gathering, and to what extent may the government restrict access to information by alleging national-security interests or intelligence concerns? The courts are looking to settled bodies of First Amendment law to piece together a framework for balancing security concerns with constitutional freedoms.

There is no Supreme Court case holding that the First Amendment guarantees a general “right of access” to government information. The first Supreme Court case on the issue was Zemel v. Rusk (1965), in which the Court held that “the right to speak and publish does not carry with it the unrestrained right to gather information.” In Houchins v. KQED (1978), the high court held that “the public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.”

There is, however, a patchwork of Supreme Court and lower court decisions concerning press and public access to specific types of government-controlled information, institutions and events. In only a few matters have the courts been willing to grant an unqualified First Amendment right of access to the press or public. The Supreme Court has nevertheless recognized that freedom of the press would be “eviscerated” without some form of protection for gathering information and news. (See Branzburg v. Hayes, 1972.)

Post-9/11 federal cases
The government detained more than 1,100 non-U.S. citizens for alleged immigration violations or as “material witnesses” to the terrorist attacks of 9/11. On Sept. 21, 2001, Chief Immigration Judge Michael Creppy issued a directive mandating that deportation proceedings be conducted in secret without access by the press or public in all cases deemed by the Justice Department to be of “special interest” to the Sept. 11 investigation. Reporters and civil liberties groups sued the Justice Department, claiming the First Amendment prohibits the government from categorically barring them from deportation proceedings without a particularized showing in a given case that closure is necessary for security reasons. In Detroit Free Press v. Ashcroft, the 6th Circuit held that the “Creppy directive” violates the First Amendment as interpreted in theRichmond Newspapers line of cases (see below) in that it does not obligate the hearing judge to make a particularized showing in each instance of a compelling reason for closure. But the 3rd Circuit upheld the directive, citing compelling national-security concerns, in North Jersey Media Group v. Ashcroft. Despite the conflict in the circuit court holdings, the Supreme Court denied an appeal from the 3rd Circuit by the North Jersey Media Group (May 27, 2003).

On Oct. 12, 2001, U.S. Attorney General John Ashcroft issued a memorandum to federal agency heads that substantially broadened the agencies’ discretion to deny access to information requested under the Freedom of Information Act. Ashcroft maintained that although the Department of Justice was committed to full compliance with the FOIA, it was nevertheless “equally committed” to protecting other “fundamental values,” which included “safeguarding our national security.” The memorandum has been controversial and has spawned several FOIA cases relating to post-9/11 issues.

On Oct. 29, 2001, various public-interest organizations submitted FOIA requests to the Justice Department, INS and FBI seeking disclosure of the identities, locations of arrest, current whereabouts, nature of charges, names of attorneys and similar information about the detainees. When the request was substantially denied by the agencies, citing security concerns, plaintiffs filed suit. The district judge ordered the government to release the names of the detainees and their attorneys, while denying access to information about the dates and locations of arrest, detention and release. That decision was Center for National Security Studies v. Department of Justice, 215 F.Supp.2d 94 (D.C. District Court 2002).

On appeal, the U.S. Circuit Court of Appeals for the District of Columbia reversed the district court decision (June 17, 2003). In a 2-to-1 opinion, the court held that the information was properly withheld from the press under the national-security exemptions in the Freedom of Information Act. Further, the court refused to “expand the First Amendment right of public access to require disclosure of information compiled during the government’s investigation of terrorist acts.” The Center for National Security Studies appealed to the Supreme Court but was turned away (Jan. 12, 2004).

The arrest and indictment of Zacarias Moussaoui on terrorism charges has spawned several access opinions. On Nov. 19, 2003, the 4th Circuit denied part of the government’s request to close a hearing on national-security grounds, stating that the “value of openness in judicial proceedings can hardly be overestimated.” But it allowed some arguments to proceed in secret. The Associated Press reported that the public arguments would focus “on the appeals court’s jurisdiction; a defendant’s right to question enemy combatants held overseas; and whether the district court had the authority to grant Moussaoui access to the prisoners.”

In 2004, the ACLU filed suit against the Defense Department, alleging a failure to comply with an FOIA request to release photos of alleged prisoner abuse in Iraq and Afghanistan. In 2005, the U.S. District Court for the Southern District of New York ordered the release of photos from the Abu Ghraib prison with all personal identifying information removed. The Defense Department appealed that order, but withdrew the appeal when the photos in question were leaked and published on the Internet. In response to further inquiry by the ACLU, the Defense Department confirmed the existence of additional photos from prisons other than Abu Ghraib in Iraq and Afghanistan. In 2006, the district court ordered the release of those photos, and the DOD appealed to the 2nd U.S. Circuit Court of Appeals.

In the 2nd Circuit case, DOD v. ACLU, the Defense Department argued that FOIA exemption 7(F) precluded the release of the photos in question. Exemption 7(F) allows records to be withheld if they were “compiled for law enforcement purposes” and if their disclosure “could reasonably be expected to endanger the life or physical safety of any individual.” Specifically, the Defense Department claimed that release of the photos could endanger the lives of U.S. troops and civilians in Iraq and Afghanistan.

The court rejected this argument on the grounds that it was premised on a flawed statutory interpretation of FOIA exemption 7(F). Because the language of the exemption included the qualification that the life of “any individual” be endangered, and the Defense Department had not specified any particular individual who would be endangered by the release of the photos, the Court concluded that applying FOIA exemption 7(F) would be improper. Further, since all identifying information had been redacted from the photos, no discernible privacy interest would be compromised by release.

After the 2nd Circuit’s 2008 order to release the photos, the Defense Department petitioned the Supreme Court to take the case. The Court agreed in light of the passage of Section 565 of the Department of Homeland Security Appropriations Act of 2010, also known as the Protected National Security Documents Act of 2009. Section 565 prohibits the disclosure of any photograph taken between Sept. 11, 2001, and Jan. 22, 2009, depicting detainee treatment by U.S. Armed Forces operating outside the United States, as long as that photograph has been certified by the defense secretary as posing a potential danger to U.S. citizens, members of the U.S. Armed Forces, or employees of the U.S. government deployed outside the U.S. Congress must be notified of each certification by the secretary, and each certification expires after three years, but the secretary can issue unlimited renewals of certification at any time.

Defense Secretary Robert Gates certified the photos in question under Section 565, and the Supreme Court vacated and remanded the ACLU’s case back to the 2nd Circuit for further consideration in light of this new legislation.

In a 2008 decision that could make it easier for U.S. citizens to gain access to information held by the government, the Supreme Court held in Taylor v. Sturgell that plaintiffs in FOIA cases are entitled to their day in court, even if prior litigation has been decided unfavorably against previous plaintiffs seeking the same documents. The government asserted a theory of “virtual representation,” whereby a court’s verdict denying a FOIA request could preclude future litigation over an identical FOIA request because the future plaintiffs would already have been “virtually represented” in court.

However, the Court found the government’s concerns about the inconvenience of complying with duplicative FOIA lawsuits to be unconvincing.

Though certain kinds of lawsuits, such as class actions, can have a preclusive effect on future litigants who were not a party to the original case, FOIA cases do not fall into that category, the Court said. As a result, citizens are free to sue the government in order to obtain documents, even if prior litigants have been unsuccessful in obtaining those documents.

In another case between the ACLU and the DOD, the U.S. District Court for the Southern District of New York ruled in July 2010 that the district court lacked the institutional competence to force the release of CIA documents that describe interrogation methods and the content of interrogation videotapes that have already been destroyed. Noting that the Freedom of Information Act “represents a balance struck by Congress between the public’s right to know and the Government’s legitimate interests in keeping certain information confidential,” the court deferred to CIA Director Leon Panetta’s judgment that the documents in question should be exempt from FOIA requests because releasing them would cause serious damage to national-security interests. The court took the position that it’s the CIA director’s obligation to ensure compliance with the Constitution.

Access to judicial proceedings
Perhaps the most well-developed case law governing information and press access is that relating to access to criminal judicial proceedings. In a case that eventually reached the Supreme Court, reporters filed suit after being denied access to a murder trial. The Supreme Court held in Richmond Newspapers v. Virginia (1980) that although such a right of access was not specifically enumerated in the Constitution, the right to attend criminal trials was “implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press would be eviscerated.”

In open proceedings in the post-9/11 cases regarding press access to government activities and information, Richmond Newspapers and its progeny are cited as key precedents. However, there is no way of knowing whether the government was held to these standards in closed proceedings with “secret dockets,” particularly in the case of post-9/11 detainees. In M.K.B. v. Warden(2004), the Supreme Court denied certiorari for a detainee and also denied a news-media motion to intervene in the case, all without citing precedent or allowing the news representatives to read the government’s brief.

Though the Supreme Court has been silent on the issue, both the 2nd and 11th Circuits have held that “secret dockets” violate the First Amendment.

In The Hartford Courant Co. v. Pellegrino (2004), the 2nd Circuit struck down Connecticut’s secret-docket system, ruling that the public has a presumptive First Amendment right of access to courtroom proceedings. That right can be qualified if the government can demonstrate that “suppression is essential to serve higher values and is narrowly tailored to serve that interest.” In such cases, the sensitive information can be sealed, but courts cannot simply withhold a case from the docket, leaving no trace of its existence.

In United States v. Fabio Ochoa-Vasquez (2005), the 11th Circuit issued a similar ruling, criticizing the District Court in Southern Florida for its habitual secret dockets. Despite these rulings, secret dockets persist in many areas of the country. According to the Reporters’ Committee for Freedom of the Press, between 2001 and 2006 at least 469 cases in the U.S. District Court in Washington, D.C., were prosecuted and tried in complete secrecy.

Access to institutions
In Pell v. Procunier (1974), however, the Supreme Court found that the press did not have a constitutional right of access greater than that afforded to the public. In Pell, reporters sued to gain access to a prison to interview certain inmates. The Court noted that the press did have some rights of access to visit the prisons and to freely interview random prisoners, but it could not demand face-to-face interviews with specific inmates. The Court went on to note that the press and the public are regularly excluded from grand jury proceedings, judicial conferences, scenes of crime or disaster, meetings of some official bodies and meetings of private organizations. The Constitution does not impose upon government “the affirmative duty to make available to journalists sources of information not available to members of the public generally,” the opinion said.

Legislative developments
In 2007, Congress passed and President George W. Bush signed the Open Government Act, which amended the Freedom of Information Act in several ways.

First, the new act widened the definition of “news media representative” for purposes of FOIA requests, with the effect that bloggers and websites can now obtain records from the government for news purposes.

Second, the act makes it easier for winning plaintiffs in FOIA cases to recover attorney fees and litigation costs from the government.

Third, the act places more-stringent requirements on government agencies to comply with FOIA requests in a timely manner; whereas previously an agency could assess fees for FOIA services even after delaying compliance with a request beyond the 20-day deadline, under the new law an agency can assess fees only if it complies with the FOIA request within that time period.

The Open Government Act also prevents the government from avoiding its responsibility to comply with FOIA requests in situations where the desired information is in the hands of a government contractor.

Although this legislation ostensibly removes some of the bureaucratic obstacles faced by FOIA requesters, critics argue that the act changes nothing about the kinds of information that the government can withhold from the public.

In February 2010, Congress voted to renew three provisions of the USA Patriot Act that were set to expire, including Section 215, which allows the FBI to obtain business and library records without a warrant or probable cause and places a “gag order” on the businesses from which the FBI requests records. In 2005, then-Sen. Barack Obama called Section 215 “just plain wrong” and supported an amendment that would limit the section so that it applied only to the records of terrorists, spies or other agents of foreign power. However, as head of the executive branch President Obama reversed course by opposing just such an amendment and signing off on Section 215’s renewal in February 2010.

Commentators and civil liberties organizations have argued that Section 215 violates the First Amendment in two ways. First, the “gag order” restricts the speech of those from whom the FBI has requested records, such as librarians. Second, the threat of being monitored by the FBI inhibits free expression; for example, a library patron may be discouraged from checking out certain controversial books if the FBI can obtain his or her library records without a warrant or probable cause. Section 215 has come to be known as the “angry librarians provision” owing to the opposition it has provoked from the American Library Association.

Michael Roffe, a Colgate University graduate, worked as a research assistant at the First Amendment Center in 2004 while a Vanderbilt law student. Taylor M. Smith graduated from the University of Virginia and is pursuing a law degree at Georgetown University Law Center. He worked as a research assistant in 2010.