United States v. Aref, No. 07-0981 (2d Cir. 2008)

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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 6 Decided: July 2, 2008) Docket Nos. 07-0981-cr(L), 07-1101-cr(CON), 07-1125-cr(CON) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -----------------------------------------------------------X UNITED STATES OF AMERICA, 26 Northern District of New York (McAvoy, J.). 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. Appellee, - v. YASSIN MUHIDDIN AREF, MOHAMMED MOSHARREF HOSSAIN, Defendants-Appellants. NEW YORK CIVIL LIBERTIES UNION, Proposed-Intervenor-Appellant. -----------------------------------------------------------X Before: JACOBS, Chief Judge, McLAUGHLIN, Circuit Judge, and SAND, District Judge.1 The defendants were convicted after a jury trial in the 1 The district court The defendants and the NYCLU now appeal. 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. 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 In this AFFIRMED. WILLIAM C. PERICAK, Assistant United States Attorney (Elizabeth C. Coombe, Brenda K. Sannes, Assistant United States Attorneys, of counsel), for Glenn T. Suddaby, United States Attorney for the Northern District of New York, Albany, NY. TERENCE L. KINDLON (Kathy Manley, on the brief), Kindlon and Shanks, P.C., Albany, NY, for DefendantAppellant Yassin Muhiddin Aref. KEVIN A. LUIBRAND, Albany, NY, for Defendant-Appellant Mohammed Mosharref Hossain. COREY STOUGHTON (Arthur Eisenberg, Christopher Dunn, on the brief), 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 New York Civil Liberties Union, New York, NY, for ProposedIntervenor-Appellant. Melissa Goodman, American Civil Liberties Union, and Corey Stoughton, New York Civil Liberties Union (Jameel Jaffer, American Civil Liberties Union; Arthur Eisenberg, Christopher Dunn, New York Civil Liberties Union, on the brief), for Amici Curiae American Civil Liberties Union and the New York Civil Liberties Union. Peter Karanjia, Davis Wright Tremaine LLP (Christopher Robinson, David Wright Tremaine LLP, on the brief; David E. McGraw, The New York Times Company, of counsel), New York, NY, for Amici Curiae Advance Publications, Inc., The Associated Press, Daily News L.P., Gannett Co., Inc., The Hearst Corporation, NBC Universal, Inc., The New York Newspaper Publishers Association, The New York Times Company, Newsweek, Inc., North Jersey Media Group, The Reporters Committee for Freedom of the Press, Reuters America LLC, U.S. News and World Report, L.P., and The Washington Post, in support of Proposed-Intervenor-Appellant. McLAUGHLIN, Circuit Judge: 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. 41 cooperator, the missile was to be used by terrorists against a 42 target in New York City. According to the 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. 5 in part and denied the rest. 6 The district court granted the motions 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. 11 responses to the motion and the district court s order denying 12 the motion were sealed because they contained classified 13 information. 14 York Civil Liberties Union (the NYCLU ) to intervene and to get 15 public access to those sealed documents. 16 Both the Government s The district court also denied motions by the New 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. 19 challenges are governed by settled law, we address them in an 20 accompanying summary order. 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 Because most of the appellants We now resolve two issues of first 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. BACKGROUND 6 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. 17 in New York City. 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 24 The missile was to be fired at a target A jury found Hossain guilty on all twenty- During pretrial discovery, the Government sought protective orders pursuant to CIPA section 4, 18 U.S.C. app. 3 § 4, and 5 1 Federal Rule of Criminal Procedure 16(d)(1). 2 permit it to withhold classified information that might otherwise 3 have been discoverable. 4 parte, in camera conferences with the Government relating to the 5 classified information. 6 camera conference with defense counsel to assist the court in 7 deciding what information would be helpful to the defense. 8 9 The orders would The district court held a series of ex The court also held an ex parte, in On January 20, 2006, Aref moved to: (1) suppress all 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. 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. Aref based this motion on an article in The New 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. 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. 23 stating that it had denied the motion. That same day, the district It also issued a brief public order 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. 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. 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. 14 States, 452 F.3d 202, 205 (2d Cir. 2006) (per curiam). 15 moved to intervene to gain access to all sealed orders of the 16 district court. 17 petition and denied the NYCLU s intervention motion. 18 207. Later that month, the defendants asked for The district court denied that request, and See Aref v. United The NYCLU We dismissed in part and denied in part Aref s See id. at 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. 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 The district court reasoned that the March 10, 2006 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. 10 NYCLU also moved for public access to those documents. 11 The 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. 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. The Government 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. 11 arguments. 12 I. 13 We reject these CIPA CIPA establishes procedures for handling classified 14 information in criminal cases.2 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. 18 2002). 19 20 The statute was meant to United States v. O Hara, 301 F.3d 563, 568 (7th Cir. CIPA section 4 sets out procedures for [d]iscovery of 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 2 3 4 5 6 7 8 9 10 11 12 13 The [district] court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. 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. 17 No. 96-823, at 6 (1980), as reprinted in 1980 U.S.C.C.A.N. 4294, 18 4299-4300. 19 that good cause includes the protection of information vital 20 to the national security. 21 committee s note to 1966 amendment. 22 S. Rep. The Advisory Committee notes to Rule 16 make clear Fed. R. Crim. P. 16 advisory It is important to understand that CIPA section 4 23 presupposes a governmental privilege against disclosing 24 classified information. 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 ). 29 to restrict discovery of evidence in the interest of national 30 security, it leaves the relevant privilege undefined. It does not itself create a privilege. Although Rule 16(d)(1) authorizes district courts 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. 4 F.2d 544, 546 (2d Cir. 1991). 5 privilege allows the government to withhold information from 6 discovery when disclosure would be inimical to national 7 security. 8 issue in CIPA cases fits comfortably within the state-secrets 9 privilege. Id. See Zuckerbraun v. Gen. Dynamics Corp., 935 That venerable evidentiary It would appear that classified information at 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. 19 15 n.12. 20 H.R. Rep. 96-831, pt. 1, at That statement simply sweeps too broadly. 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). 11 See H.R. Rep. 1 96-831, pt.1, at 15 n.12. 2 not support the Committee s conclusion. 3 A close reading of these cases does 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. 8 that in criminal cases such as Andolschek, the Government was not 9 permitted to undertake prosecution and then invoke its 345 U.S. at 10. In contrast, the Court explained 10 governmental privileges to deprive the accused of anything which 11 might be material to his defense. 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. 16 These cases, therefore, do not hold that the Government cannot 17 claim the state-secrets privilege in criminal cases. 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 Id. at 12 & n.27. Similarly, See 185 F.2d at 638. Instead, 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). 12 That said, Reynolds, 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. 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. This standard is consistent Id. at 60-61. Indeed, we have 10 interpreted relevant and helpful under Roviaro to mean 11 material to the defense. 12 1073 (2d Cir. 1988). 13 informant privilege at issue in Roviaro and the state-secrets 14 privilege are part of the same doctrine. 15 638. 16 United States v. Saa, 859 F.2d 1067, We have also noted that the government- Coplon, 185 F.2d at 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. 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). See Klimavicius-Viloria, 144 F.3d at 1261; 13 1 Applying this standard, the district court must first decide 2 whether the classified information the Government possesses is 3 discoverable. 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. 10 If it is, the district court must then determine Reynolds, 345 U.S. at 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. 15 Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993) (interpreting 16 materiality standard under Federal Rule of Criminal Procedure 17 16(a)(1)). 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. 21 can be helpful without being favorable in the Brady sense. 22 Mejia, 448 F.3d at 457. 23 24 United States v. To be helpful or material to the defense, evidence See id. at 87. [I]nformation The district court s decision to issue a protective order 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. 5 1038, 1042 (2d Cir. 1991). 6 See DiBlasio v. Keane, 932 F.2d 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. 14 See Reynolds, 345 U.S. at 10. 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. 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. 22 828-29 (2d Cir. 1979) (Friendly, J.) (internal quotation marks 23 omitted). 24 department head here. 25 us to remand for the purpose of having the department head agree This is not necessarily fatal. We have previously excused See Clift v. United States, 597 F.2d 826, We similarly excuse the failure to involve the It would be of little or no benefit for 15 1 that disclosure of the classified information would pose a risk 2 to national security here. 3 we trust that this issue will not arise in future CIPA cases. 4 Based on our holding today, however, Finally, we agree that the district court did not deny the 5 defendants any helpful evidence. 6 court for its thorough scrutiny of the classified information. 7 Indeed, we commend the district 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. 11 4; Fed. R. Crim. P. 16(d)(1). 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. 16 at 1261. 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. 21 See 18 U.S.C. app. 3 § In a case involving classified Klimavicius-Viloria, 144 F.3d When the government is seeking to withhold classified Motion to Intervene 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. 24 that such a motion is appropriate to assert the public s First 25 Amendment right of access to criminal proceedings. Indeed, we have implied, but not squarely held, 16 We now hold 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). 6 motions are common in this Circuit to assert the public s First 7 Amendment right of access to criminal proceedings. 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). 12 formulate procedural rules not specifically required by the 13 Constitution or the Congress to implement a remedy for 14 violation of recognized rights. 15 U.S. 499, 505 (1983). 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. 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). However, such See, e.g., Federal courts have authority to United States v. Hasting, 461 Because vindication of [the] right [of 17 Cf. In re 1 In civil cases, this Court reviews denials of motions to 2 intervene for abuse of discretion. 3 States, 496 F.3d 175, 182-83 (2d Cir. 2007). 4 apply a different standard of review here. 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. 9 abuse of discretion. 10 11 See DSI Assocs. LLC v. United We see no reason to The district court Under the circumstances, there was no III. Public Access to Sealed Documents 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. 14 We disagree. [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. 17 Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (internal 18 quotation marks omitted). 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. 23 Even assuming a right to the documents, the district court did 24 not err in denying public access to them. Lugosch v. Pyramid The parties appear to agree that a We need not settle this dispute. 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). 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 district court found 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. 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. 19 See Fed. R. Crim. P. 52(a). 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. 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. ). 8 be made on the record for our review, such findings may be 9 entered under seal, if appropriate. See However, we have held that while the findings must Id. The district court 10 made sufficiently specific findings under seal that justified 11 denying public access to the documents. 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. 22 higher values was supported by specific findings based on record 23 evidence. Moreover, based on our Therefore, the district court s ruling as to 20 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. 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 Thus, any error the district court 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. 15 government claim legitimacy by election, judges by reason. 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. 19 Bartell, 439 F.3d 346, 348 (7th Cir. 2006). 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. 24 judicial decision accedes to the requests of a coordinate branch, The political branches of Any Hicklin Eng g, L.C. v. Because the This is especially so when a 21 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. 4 Id. 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. 8 quotation marks omitted). 9 concerns at play here and the nature of the underlying documents Haig v. Agee, 453 U.S. 280, 307 (1981) (internal Given the legitimate national-security 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. 22

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