REPLY TO GOVERNMENT'S RESPONSE TO MOTION TO INTERVENE

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					                            IN THE UNITED STATES DISTRICT COURT

                                  FOR THE DISTRICT OF NEW MEXICO



 United States of America,                           Case No. CR 99-1417 JP

                     Plaintiff,
 v.

 Wen Ho Lee,

                     Defendant.

REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO INTERVENE AND
UNSEAL OR, IN THE ALTERNATIVE, PETITION FOR WRIT OF MANDAMUS
          COMPELLING UNSEALING OF COURT RECORDS

                 In its response to the motion to unseal filed by Chinese for Affirmative Action

(“CAA”),1 the government concedes that certain documents should be unsealed in their entirety

because no justification exists for their continued sealing. Resp. at 3. The government further

concedes that all other documents remaining under seal should to be reviewed for classified

content and unsealed subject to redaction of such content. Resp. at 1, 12.2 CAA agrees that all


        1/
           The government’s assertion that there is no basis for CAA to intervene to bring a
motion to unseal is incorrect. It is well-settled that intervention is an appropriate vehicle for the
press and public to be heard on matters affecting their rights of access to judicial records. Daines
v. Harrison, 838 F. Supp. 1406 (D. Colo. 1993) (approving newspaper’s intervention to oppose
sealing); Oregonian Pub. Co. v. U.S. Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990) (same); see
also U.S. v. Gonzales, 1997 WL155403, *1 n.1 (D. N.M. 1997) (accepting media intervenor’s
motion to unseal in criminal action). If, however, the Court determines that intervention is not
the proper procedural mechanism, CAA has requested that the Court construe its motion and
supporting memoranda as a petition for writ of mandamus. See Motion to Intervene and Unseal
or, in the Alternative, Petition for Writ of Mandamus Compelling Unsealing of Court Records,
filed June 6, 2001, at 1. U.S. v. McVeigh, 918 F. Supp. 1452, 1456 (1996) (construing motion to
intervene and unseal as writ of mandamus).
        2/
         According to the docket and the government, the following 20 documents remain under
seal: Docket Nos. 27, 28, 47, 48, 135, 136, 140, 142, 148, 157, 166, 167, 173, 174, 175, 183,
REPLY RE MOTION TO INTERVENE AND UNSEAL        1                                            CR 99-1417 JP
of these sealed documents should be reviewed so that information about this case that does not

actually pose a threat to national security can be released forthwith as required under the First

Amendment. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press-

Enterprise I”) (“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.”); accord Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07

(1982); U.S. v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997); see also In re Washington Post Co.,

807 F.2d 383, 393 (4th Cir. 1986) (vacating order sealing plea and sentencing documents in

espionage case because court failed to “mak[e] the appropriate constitutional inquiry” before

sealing documents purported to contain classified information).

                 CAA does not agree, however, with the government’s request that the records be

reviewed in the manner set forth in the stipulated protective order (“SPO”). The SPO improperly

delegated decisionmaking authority regarding sealing and redactions to the executive branch and

the Court Security Officer. Such a procedure does not comply with the constitutional

requirements applicable to sealing court records, which require that the Court -- not the executive

branch, and not a delegee of the Court -- review and make final determinations concerning

sealing and redactions. See, e.g., In re Washington Post, 807 F.2d at 391-92 (court may not

delegate sealing decisions to executive branch); U.S. v. Bin Laden, 58 F. Supp. 2d 113, 116

(S.D.N.Y 1999) (court -- not Court Security Officer -- is “final arbiter” of questions regarding

access to classified information). Accordingly, CAA requests that the Court unseal all

documents in this case, subject to redactions of only those materials whose disclosure the Court



185, 197. In addition, it appears that Docket No. 144 may also be under seal.

REPLY RE MOTION TO INTERVENE AND UNSEAL       2                                             CR 99-1417 JP
itself determines would constitute a bona fide threat to national security.3

                                                  I.

THE CONSTITUTION REQUIRES THE COURT -- NOT THE EXECUTIVE BRANCH
    OR COURT SECURITY PERSONNEL -- TO DETERMINE WHAT, IF ANY,
     INFORMATION SHOULD BE REDACTED FROM COURT RECORDS




        3/
           CAA objects to the government’s request that the Court also redact “confidential
personnel information” from the sealed records before making them public. The Court made no
finding in the Stipulated Protective Order that redaction of such information was necessary in
this case to protect a compelling interest. Unless and until the Court makes specific findings that
the disclosure of particular personnel information contained in the sealed records threatens a
compelling interest, withholding such information would be improper. See Associated Press v.
U.S. Dist. Court, 705 F.2d 1143, 1147 (1983) (sealing of court records must be supported by
“specific findings on a document-by-document basis” that sealing is “‘strictly and inescapably
necessary’” to protect a compelling interest); U.S. v. Scott, 48 M.J. 663, 666-67 (1998) (reversing
sealing of court records on basis of generalized interest in protecting third parties’ privacy);
Wiggins v. Burge, 173 F.R.D. 226, 230 (N.D. Ill. 1997) (privacy interest of police officers in
information in personnel files could not override “significant public interest in the disclosure of
these documents”).




REPLY RE MOTION TO INTERVENE AND UNSEAL       3                                           CR 99-1417 JP
                 Contrary to the government’s contentions, the protective orders entered in this

case do not satisfy the rigorous constitutional and common law requirements for sealing court

records. The first order, entered on December 14, 1999, was entered only one day after the

motion for a protective order was filed, thereby denying the press and public the requisite

opportunity to be heard. See Globe Newspaper Co., 457 U.S. at 609 n.25 (the public “must be

given an opportunity to be heard on the question of [its] exclusion” from court hearings and

records); accord, e.g., In re Washington Post, 807 F.2d at 390. Although the government

maintains that this order did not explicitly provide for the sealing of any documents, it did set

forth guidelines regarding the handling of classified information in the case that were, apparently,

relied on for the sealing of at least three documents prior to the entry of the Second Protective

Order (“SPO”) on February 9, 2000.4 Clearly, these documents must be reviewed by the Court to

determine whether the requirements for sealing have actually been met.

                 The SPO, entered on the basis of the parties’ stipulation on February 9, 2000, fails

on substantive grounds in at least two ways. First, the SPO improperly allowed the executive

branch to make its own determinations regarding sealing and redactions of the documents it filed

without any oversight by the Court. See SPO, ¶ 10. Second, it authorized the Court Security



        4/
           See Docket Nos. 27, 28, 29. The government offers no explanation for the sealing of
Docket No. 29, and maintains that Docket Nos. 27 and 28 contain their own justification for
sealing, Resp. at 9 n.1. However, the public is entitled to “a meaningful opportunity to address
sealing ... on the merits,” Phoenix Newspapers v. U.S. Dist. Court, 156 F.3d 940, 949 (9th Cir.
1998), placing the reasons advanced to justify sealing themselves under seal does not comport
with constitutional requirements. See id. at 944, 949 (court erred in denying press’ motion for
access to basis for sealing order); U.S. v. Raffoul, 826 F.2d 218, 224-26 (3d Cir. 1987) (public
“was denied due process” where “undocketed materials formed the basis for the district court’s
actions” closing hearing and sealing transcript); Washington Post v. Robinson, 935 F.2d 282, 289
n.9 (D.C. Cir. 1991) (court’s reasons for sealing must be made “on the public record to enable an
interested person to intelligently challenge the decision”).

REPLY RE MOTION TO INTERVENE AND UNSEAL         4                                           CR 99-1417 JP
Officer to make substantive decisions regarding sealing and redaction of documents filed by the

defense without any oversight by the Court. See SPO, ¶ 9. Neither of these procedures meets

constitutional standards, which require that the Court itself make final determinations regarding

sealing and redaction. See In re Washington Post, 807 F.2d at 391-92; Bin Laden, 58 F.Supp. 2d

at 116.

1.        The Executive Branch May Not Determine Which Of Its Filings
          Should Be Made Public

                 The federal judiciary cannot allow the executive branch to dictate what

information implicates national security, and what should be sealed. In re Washington Post, 807

F.2d at 391-92 (“A blind acceptance by the courts of the government’s insistence on the need for

secrecy ... would impermissibly compromise the independence of the judiciary and open the door

to possible abuse.”); accord U.S. v. Pelton, 696 F. Supp. 156, 159 (D. Md. 1986) (“important

First Amendment values” cannot be overcome by “a mere assertion of ‘national security.’”); see

also Procter & Gamble Co. v. Banker’s Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) (“The District

Court cannot abdicate its responsibility to ... determine whether filings should be made available

to the public. It certainly should not turn this function over to the parties ...”). Thus, it is

patently improper to allow documents to remain under seal pursuant only to the instructions of

the executive branch, as provided in the SPO. See id.

                 The dangers of according the executive branch unilateral control over what

information the public may and may not see are especially grave here, where the Court has

already found itself “led astray” by the executive branch. RT, 55:4. Moreover, as recent

developments show, the executive branch continues to exploit its near-total control over

information about Mr. Lee’s case. See, e.g., “Report Absolves Government of Racism in Lee


REPLY RE MOTION TO INTERVENE AND UNSEAL         5                                              CR 99-1417 JP
Case,” San Francisco Chronicle at A-3 (Aug. 8, 2001) (reporting that results of government’s

internal investigation contradict accounts of former Energy Department officials regarding the

role of race in the prosecution of Dr. Lee); “The Persecution of Wen Ho Lee, Redux,” Los

Angeles Times (Aug. 7, 2001) (noting that government itself has leaked selected classified

information concerning Dr. Lee’s case to the press and public).5 Given this history, it is crucial

that the public have direct access to as much information as possible about this case so that

pressing questions about the government’s motives for prosecuting Dr. Lee can be answered

rather than “spun” by the executive branch.

2.      The Court -- Not Security Personnel -- Must Make Final Determinations Regarding
        Sealing Of Public Records




        5/
             The news articles referenced above are attached hereto as Exhibits 1 and 2.



REPLY RE MOTION TO INTERVENE AND UNSEAL         6                                          CR 99-1417 JP
                 The SPO also improperly delegated to the Court Security Officer the authority to

make substantive determinations regarding what material filed by the defendant would be sealed

or redacted, and did not provide for any final determination on such matters by the Court itself.

See Pelton, 696 F. Supp. at 159 (the right of access may be denied only if the Court conducts “its

own analysis of the [classified information at issue] and finds that there are serious national

security concerns”). As a result, nearly 20 documents were sealed in their entirety without any

review or specific findings by the Court, in violation of constitutional requirements. See In re

Washington Post, 807 F.2d at 390; accord U.S. v. Criden, 675 F.2d 550, 554 (3rd Cir. 1982);

Pelton, 696 F. Supp. at 159 (allowing closure only of approximately five minutes of a criminal

espionage trial, but requiring the release of a redacted version of the transcripts); see also U.S. v.

Galloway, 937 F.2d 542, 551 (10th Cir. 1991) (remanding case because the district court did not

make specific, on-the-record findings).6




        6/
         Indeed the Security Officer appears to have violated the SPO itself by directing the
wholesale sealing of documents instead of sealing only those limited portions of documents
containing bona fide classified information. SPO, ¶ 9.




REPLY RE MOTION TO INTERVENE AND UNSEAL        7                                             CR 99-1417 JP
                 The government’s argument that such a procedure is not only proper but

preferable to having this Court decide such matters itself is patently incorrect. See Resp. at 7.

While the Court may seek the assistance of parties expert in matters of national security in

making such determinations, it must retain its authority as the “final arbiter” of what, if any,

materials actually threaten national security such that sealing or redaction is necessary. See Bin

Laden, 58 F. Supp. 2d at 116 (Court Security Officer’s role in connection with classified

information in court records is only “‘ministerial in nature’”) (internal citation omitted); see also,

e.g., Protective Order in U.S. v. Poindexter, 1988 WL 148597 *1 (1988) (Security Officer’s role

is to enforce the procedural mechanisms for the handling and storage of classified documents –

e.g., maintain secure areas for the viewing of documents and provide for the storage of classified

documents); accord Protective Order in U.S. v. Weinberger (filed as Defendant’s Exhibit B in

Armstrong v. Executive Office of the President, 830 F. Supp. 19, 24 (D.C. Cir. 1993)); Protective

Order in U.S. v. Musa, 833 F. Supp. 752, 757-58 (E.D. Mo. 1993).7 Thus, the Court -- not the

Security Officer or any “derivative classifiers,” see Resp. at 10 -- should review all sealed

documents in this case and determine what, if any, information it is necessary to redact before

they are unsealed.8 Only by conducting its own review can the Court can comport with the


        7/
         The government’s reliance on CIA v. Sims, 471 U.S. 159 (1985) for the proposition that
the Court is “ill-equipped” to make determinations regarding threats to national security is
misplaced. Sims only addressed the very narrow question of whether Congress had given the
Director of the CIA authority pursuant to the National Security Act of 1947, 50 U.S.C.
§ 403(d)(3), to determine which confidential intelligence sources would be exempt from
disclosure under FOIA. It did not speak to the broader question raised here of whether the Court
or some other party should make final determinations regarding sealing of purportedly classified
information under a completely different statutory scheme.
        8/
          CAA requests that the Court review all sealed documents in accordance with the
compelling interest standard, including those that the defendant has moved to retain under seal in
his July 18, 2001 Motion.

REPLY RE MOTION TO INTERVENE AND UNSEAL        8                                             CR 99-1417 JP
requirement that any sealing order be narrowly tailored to only that information that must be

redacted to protect the government’s asserted compelling interest. Press-Enterprise I, 464 U.S.

at 824; In re Washington Post, 807 F.2d at 393.

                                          CONCLUSION

                 For the foregoing reasons, CAA respectfully requests that the Court review all

sealed documents in this case according to the constitutional standards set forth in CAA’s

opening brief and this reply. CAA requests the Court release all materials that do not, in the

Court’s own estimation, pose a bona fide threat to national security, and that the Court issue

written findings in support of any further sealing or redaction of records in this case. In the

alternative, CAA requests that the Court set a hearing on this matter.

96473v1                                        Respectfully submitted,
DATED: August 17, 2001
                                               STEINHART & FALCONER LLP
                                               ROGER R. MYERS
                                               LISA M. SITKIN
                                               MONICA C. HAYDE
                                               333 Market Street, Thirty-Second Floor
                                               San Francisco, CA 94105-2150
                                               Telephone: (415) 777-3999
                                               Facsimile: (415) 442-0856

                                               AMERICAN CIVIL LIBERTIES UNION
                                               FOUNDATION OF NORTHERN CALIFORNIA
                                               ROBERT KIM
                                               1663 Mission Street, Suite 460
                                               San Francisco, CA 94103
                                               Telephone: (415) 621-2493
                                               Facsimile: (415) 255-8437




                                               ASIAN LAW CAUCUS

REPLY RE MOTION TO INTERVENE AND UNSEAL       9                                             CR 99-1417 JP
                                                         ZENOBIA LAI
                                                         720 Market Street, Suite 500
                                                         San Francisco, CA 94102
                                                         Telephone: (415) 391-1655
                                                         Facsimile: (415) 391-0366

                                                         HOPE ECKERT
                                                         ATTORNEY AT LAW, LLC
                                                         814 Marquette NW
                                                         Albuquerque, NM 87102
                                                         Telephone: (505) 764-8587
                                                         Facsimile: (505) 242-1864

                                                         By:
                                                                  Hope Eckert


                                                         By:
                                                                    Lisa M. Sitkin
                                                               Attorneys for
                                                               CHINESE FOR AFFIRMATIVE ACTION

          I hereby certify that a true and correct copy of the foregoing pleading was mailed this ___ day of
          August, 2001 to opposing counsel of record.


          Hope Eckert




96473.1   MOTION TO INTERVENE AND UNSEAL                10                                            CR 99-1417 JP