IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

[filed June 6, 2001]

UNITED STATES OF AMERICA, Plaintiff, v. Case No. CR 99-1417 JP WEN HO LEE, Defendant.
MEMORANDUM BRIEF IN SUPPORT OF MOTION TO INTERVENE
和unseal，或者，在替代性请愿书中
MANDAMUS COMPELLING UNSEALING OF COURT RECORDS

[此处删除的目录和当局表]

INTRODUCTION

This Court has apologized to Dr. Wen Ho Lee ("Lee") for the manner in which his rights were violated in the course of his prosecution. However, the American public's rights continue to be violated, as a host of documents apparently remain sealed in violation of the public's common law and constitutional rights of access to preetrial documents. The continued sealing of these documents serves only to deepen suspicion about "the real reasons why the executive branch has done all of this," Reporter's Transcript of Plea Proceedings, 58:13-14 ("RT"), and denies the public important information relating to Lee's possible selective prosecution on the basis of his race and national origin.

代表美国公众拥有宪法“访问其中提起的刑事诉讼和文件的权利”，CBS, Inc. v. U.S. Dist. Court765 F.2d 823、825(9日Cir. 1985), Chinese for Affirmative Action ("CAA") now moves to unseal these records. Its motion should be granted because the order sealing these records did not meet the procedural and substantive requirements for denying access.Press-Enterprise Co.诉高等法院s, 464 U.S. 501 (1984) ("Press Enterprise I") (vacating order closing pre-trial proceedings and sealing transcripts);U.S. v. Galloway，937 F.2d 542（10thCir。1991）（在地方法院未能遵守强制性密封程序的地方）；美联社v. U.S. Dist. Court，705 F.2d 1143（9thCir。1983）（反向订单密封审前记录）。该动议还应出于单独的原因批准命令侵犯了检查司法记录的公共法律权利。尼克松v. Warner Communications, Inc.，435 U.S. 589（1978）;Valley Broadcasting Co.诉美国区。法庭, 798 F.2d 1289 (9th Cir. 1986). These rights cannot be sacrificed by the stipulation of the parties, nor by the government's mere assertion that sealing is required to protect national security. "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 ..."Procter＆Gamble Co.诉Banker's Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). "[W]e are equally troubled by the notion that the judiciary should abdicate its decisionmaking responsibility to the executive branch whenever national security concerns are present."In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986) (vacating sealing order).

Accordingly, CAA respectfully requests that the Court immediately grant this motion, or, at a minimum, schedule a hearing on the important constitutional and common law issues presented here.

STANDING

CAA is an advocacy and service organization committed to the advancement of multiracial democracy in the United States and to the promotion of the civil and political rights of Asian Americans.1The possibility that Lee was the victim of selective prosecution is a matter of great concern to CAA, and to the American public, which has a right to information that may shed light on whether the country's tax-supported national laboratories are singling out researchers for suspicion and investigation because of their race.2因为CAA了解到，有关李案的可能记录可能仍在密封下，并且鉴于新闻报道表明，李可能会受到更多质疑，ReportsReports3CAA requests the immediate unsealing of all documents, or portions of documents, that do not truly threaten national security.

As the Supreme Court has held, all members of the public must be given a right to be heard on the question of their exclusion from court hearings and records,Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982), and it is well-settled that non-party members of the public and press have standing to challenge the sealing of court hearings and records.Daines v. Harrison，838 F. Supp。1406，1408（D。Colo。1993）（报纸提出挑战定居协议的密封）；U.S. v. McVeigh，918 F. Supp。1452, 1456 (W.D. Okla. 1996) ("movants have standing to present these questions on behalf of themselves and the general public"); see alsoPublic Citizen v. Liggett Group, Inc.，858 F.2d 775，790（1988年1月1日（公共倡导组织在烟草诉讼中挑战保护令）。

It also is well-settled that an interested third party may bring its motion to unseal after the underlying proceedings have ended.Wilson v. American Motors Corp.，759 F.2d 1568（1985年11月11日）（第三方在司法批准的和解后进行干预以挑战密封），FDIC v. Ernst & Ernst，677 F.2d 230，231-32（第二卷第231-32页）（第三方进行了干预，以挑战和解两年后挑战规定的保密令）；Mokhiber v. Davis, 537 A.2d 1 100, 1104-06 (D.C. Cir. 1988) (reporter permitted to intervene four years after a judicially-approved consent decree in order to challenge a protective order);Van Etten诉普利司通/Firestone，Inc。117 F。增刊2 d: 1375(2000年s.d。)(媒体强度rvened and compelled unsealing of records a year after settlement of a products liability case).

Accordingly, CAA has standing to bring this motion requesting that this Court vacate its sealing orders in this case.

STATEMENT OF FACTS

1999年12月10日，美国指控李59项非法收集国防信息的罪名。起诉随后提出了“非常极端的信息，以至于（法院）释放[Lee]即使在最严格的条件下，也会对这个国家的安全有危险”。RT，48：18-20。然后，在2000年9月13日，检方突然删除了一个次要的次数，这与计算机数据的不当行为有关。正如对政府作为全国其他地区的矛盾行动所困惑的那样，该法院提出了一个恰当的观察：“我注意到，这是在行政部门在摄像机上进行的审查之前不久就发生的，这是一大批信息，这些信息是我以前命令它生产。”RT，50：7-10。法院指的是与选择性起诉有关的七类文件，包括司法部和能源部备忘录，讨论了中国种族的针对性。Order of August 25, 2000.

The government may argue that there was no connection between its dropping of groundless charges and the deadline -- just two days away -- for disclosing these documents. However, this Court noted specifically that the documents likely would have supplied insight into the government's "real reasons" for bringing a case that "embarrassed our entire nation and each of us who is a citizen of it." RT, 58:10-11. If nothing else, this stunning turn of events was powerful evidence of the importance of accessible information and an accountable government. Yet numerous documents in this case remain under seal upon stipulation of the parties, and apparently without satisfying themandatoryprocedural and substantive requirements that must be met before public access to pretrial documents may be denied.

案卷表显示，政府于1999年12月13日提交的保护令的第一项动议被授予了案件，没有听证会。在1999年12月13日至2000年2月9日之间，当事各方规定为第二次保护令时，许多身份不明的文件，订单和动议被密封。该命令委托给法院安全官员法院的授权，以确定是否应密封列出李的论文。根据7-8（“ PO”）规定保护顺序。安全官员无需提出任何调查结果，并有权“与适当的[政府]机构的代表协商”做出密封决定。ID. at 8. The protective order allowed the government to file under seal portions of papers containing classified information without any review or findings by the Court justifying sealing.ID.

解释说,这些密封订单明显violated the public's constitutional and common law rights of access.

我。

CAA和公众有宪法和普通法
RIGHT OF ACCESS TO PRETRIAL DOCUMENTS FILED IN A CRIMINAL CASE

The First Amendment and the common law provide independent rights of access to the types of pretrial documents that remain under seal in this case. Each right is grounded in a different theory of access, but the purpose is the same: Public access promotes trustworthiness in the judicial process, helps curb abuses, and provides the public with a more complete understanding of the judicial system, including a better perception of its fairness.See, e.g., Globe Newspaper Co., 457 U.S. at 606. Public access is especially important here, where secrecy and unaccountability caused the Court itself to be "led astray" by the executive branch, and the American public was left with a tarnished view of the criminal process, RT, 55:4.

A.第一修正案提供了访问审前文件的权利

最高法院已意识到，公众有权访问刑事案件中的几乎所有程序和记录。See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) andGlobe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (criminal trials);按企业i，464 U.S.，511，513（Voir Dire and Transcripts）；沃勒诉佐治亚州，467 U.S. 39（1984）（镇压听证会）；Press-Enterprise Co.诉高等法院, 478 U.S. 1, 15 (1986) ("Press-Enterprise II") (preliminary hearings).4第十巡回法院认为，第一修正案的访问权适用于刑事案件中提交的审前文件，U.S. v. Gonzales，150 F.3d 1246，1256（10thCir。1997）;U.S.v。McVeigh，119 F.3d 806，812（10thCir。1997），第十巡回法院内的地方法院已对刑事案件提交的审前文档进行了首次修正分析。参见，例如，美国诉麦克维，918 F. Supp。1452，1464（W.D.Okl。1996）。的确，毫无疑问，第一修正案的访问权权利涉及审前文件。正如绝大多数电路明确认可的那样，出于公共访问目的，审前诉讼与作为这些程序的一部分提交的文件之间没有区别。用当时的电路法官安东尼·肯尼迪（Anthony Kennedy）的话说：“公众和新闻界有权访问其中提交的刑事诉讼和文件。访问权是在第一修正案和普通法中扎根的，并扩展到提交的文件中在审前程序以及审判本身中。”CBS, Inc., 765 F.2d at 825 (citations omitted).5

The courts routinely find a right of access to pretrial documents filed in criminal cases because these documents easily meet the Supreme Court's two-part test for recognizing a constitutional right of access: (1) "the document is one which has historically been open to inspection by the press and the public; and, (2) 'public access plays a significant positive role in the functioning of the particular process in question.'"麦克维, 119 F.3d at 812 (quotingPress-Enterprise II，478 U.S.，8）。

尽管案卷表并未透露所有密封文件的性质，但这些文件似乎完全属于联邦法院承认的访问权，例如审前听证会上的动议，摘要，命令和笔录。See, e.g., In re Time Inc., 182 F.3d 270, 271 (4th Cir. 1999) (pretrial motions and briefs, including discovery-related motions);U.S. v. Ellis, 90 F.3d 447, 451 (11th Cir. 1996) (transcripts ofin camera听证会结束后）；美联社, 705 F.2d at 1145 (all pretrial documents);西雅图时报公司诉美国区。法庭。845 F.2d 1513, 1517 (9th Cir. 1988) (pretrial release proceedings and documents filed therein);In re Washington Post，807 F.2d 383，390（4thCir。1986）（间谍案例中的认罪和量刑文件）。至于测试的第二部分，也可以满足该文件的公众访问权限，“倾向于在起诉或司法不当行为中进行遏制，并将进一步了解公众对理解刑事司法系统的兴趣。”In re Washington Post, 807 F.2d at 389 (citingPress-Enterprise II, 478 U.S. at 8) (other citations omitted). That standard is easily met here. If access is warranted anywhere in order to curb prosecutorial misconduct -- or to provide the public with a better understanding of the judicial system6-- it is warranted in this case, where, as this Court observed, the prosecution "caused embarrassment by the way this case began and was handled." RT, 58:8-9, and the government's motives "ma[de] no sense," RT, 50:20-21.

While both factors must be considered, the Supreme Court and other circuits have held that it is not mandatory that a document meet both prongs for the First Amendment right of access to attach.Globe Newspaper Co.，457 U.S.，605 n。13（承认尽管缺乏访问历史，但仍获得轻微性犯罪受害者证词的权利）；Seattle Times，845 F.2d，1516年（关于保释程序相同）；U.S. v. Brooklier，685 F.2d 1162，1170（9thCir。1982）（关于抑制听证会相同）。尤其是在刑事审判中，缺乏获得特定文件或程序的传统，不能独自证明密封罪是合理的。Globe Newspaper Co.，457 U.S.，605 n。13 (the argument that a specific proceeding did not enjoy a tradition of public access was "unavailing" because "as a general matter criminal trials have long been presumptively open"). Rather, the Court must consider whether, in the context of our modern justice system, public access serves society's general interest in open trials and an accountable judiciary.Brooklier, 685 F.2d at 1170. Because "the first amendment is to be interpreted in light of current values and conditions," and in light of the "increasing importance of pretrial procedures in the modern era," a right of access attaches even to records not traditionally open where, as here, the value of access is apparent.ID.Thus, even if the Court finds that some documents under seal in this case do not have a long tradition of access, the First Amendment right would still attach because public access subjects the judiciary to "healthy public scrutiny,"Seattle Times, 845 F.2d at 1516, and is crucial to a full understanding of the way in which "the judicial process and the government as a whole" are functioning.美联社，705 F.2d，1145。

B.The Common Law Also Provides A Right of Access To Pretrial Documents

In addition to a constitutional right of access, the public also has a common law right to inspect and copy public records and documents, including judicial records and documents.美国诉希基, 767 F.2d 705, 708 (10th Cir. 1985);尼克松, 435 U.S. at 598. Although they are related, the common law right of access is separate and independent from the constitutional right, and attaches, presumptively, to all documents filed in a criminal or civil case.FTC v. Standard Fin. Mgmt. Corp.，830 F.2d 404，409（1stCir。1987）（“在裁决诉讼过程中提交并接受的文件并接受的文件，成为公共访问推定的文件”）））;另请参阅尼克松, 435 U.S. at 598 (a common law right of access has been acknowledged when the party seeking access has manifested a "desire to keep a watchful eye on the workings of public agencies"). This common law right attaches even where the court does not reach the constitutional issue or does not find a constitutional right of access.U.S. v. Schlette, 842 F.2d 1574, 1582-83 (9th Cir. 1988);Valley Broadcasting Co., 798 F.2d at 1293;巴尔的摩太阳公司诉戈兹, 886 F.2d 60, 63-64 (4th Cir. 1989).

To assert this common law right, CAA need only make a threshold showing of a legitimate need for disclosure.美国诉kaczynski, 154 F.3d 930, 931 (9th Cir. 1998). This requirement is easily met here because unsealing will "serve the ends of justice"ID., by "[m]aking the public aware of how the criminal justice functions,"Schlette, 842 F.2d at 1583, and more specifically, will shed light on whether Lee was the victim of selective prosecution and whether the nation's tax-supported national laboratories are engaging in unconstitutional activities. The burden then shifts to government to articulate a "legitimate reason for preserving ... secrecy,"ID. at 1583, that would outweigh the public's "overriding concern with preserving the integrity of the law enforcement and judicial processes,"Hickey，767 F.2d，708（省略了内部引用）。如果政府无法履行这一负担，则必须取消密封文件。ID.The purported national security interests the government asserted in support of keeping Lee confined "under extraordinarily onerous conditions" turned out to be groundless, RT, 50:18,55: 14-17, and the government already has implicitly conceded this fact when it entered into the plea agreement with Lee.ID.Accordingly, the Court must closely scrutinize any further assertions of national security. Just as Lee was released from solitary confinement when the government finally admitted he was no threat to national security, this Court should also release the documents the government also mistakenly claimed were a threat to national security.

ii。

由于政府有
NOT COMPLIED WITH THE SUPREME COURT'S PROCEDURAL
密封审前文件的要求

As the Supreme Court and other courts have held, the public "must be given an opportunity to be heard on the question of [its] exclusion" from court hearings and records.Globe Newspaper Co., 457 U.S. at 609 n.25. Closure motions must be (1) docketed reasonably in advance of their disposition so as to give the public an opportunity to present their objections to the court, (2) the court must provide interested persons an opportunity to object to the sealing before making its decision, and (3) if the court does close a hearing or seal records, it must state its reasons on the record, supported by specific findings.在Re Knight Publishing Co.，743 F.2d 231，234-35（4thCir。1984）;accord, e.g.. In re Washington Post，807 F.2d，390；U.S. v. Criden, 675 F.2d 550, 554 (3rd Cir. 1982). The Tenth Circuit has remanded cases in which the district court did not make specific, on-the-record findings.U.S. v. Galloway, 937 F.2d 542, 1551 (10th Cir. 1991); see also麦克维，119 F.3d，第814页（法院必须提出足够的调查结果以支持其命令）（引用Press-Enterprise II, 478年美国13所示-14).

此外，法院无法通过举行迟来的听证会或进行事后调查来自动解决无法遵守程序要求的情况。In re Washington Post, 807 F.2d at 392 (a belated hearing on a motion to unseal "does not cure the lack of an opportunity for a hearing with respect to the original decision to seal them").

在本案中，案卷表和规定的保护令表明，没有遵循强制性密封程序，因为公众被拒绝有机会反对第一个密封命令，法院未能确定是否保证是否有保证。仅在此基础上，就必须取消关闭所讨论的文件。In re Washington Post, 807 F.2d at 393 (vacating district court's sealing order because the court "cannot uphold orders based on the use of impermissible procedures");Brooklier，685 F.2d，1167-68（命令关闭听证会和密封记录违宪，因为“法院排除了公众和压力，而不满足关闭程序的前提条件”）。7

A.The Court Erred In Not Making Its Own Findings Before Sealing

如上所述，很明显，诉讼当事方不能规定公众的访问权。Procter & Gamble Co.，78 F.3d，第227页（“在这种情况下，保护令允许当事方控制公共访问法院文件，应撤离或实质性更改”）；accord, e.g., Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180(1983年第六巡回法院。)(confidentiality agreement between the parties could not justify sealing of records to which public has a right of access because a court cannot blindly accept parties' agreements for secrecy "without seriously undermining the tradition of an open judicial system"). Furthermore, even if the Classified Information Procedures Act, 18 U.S.C.A. App. �� 1-16 ("CIPA"),8allowed the sealing of portions of documents that contained bona fide classified information, a court may not sealanydocuments, including those purported to contain classified information, without "making the appropriate constitutional inquiry."In re Washington Post, 807 F.2d at 393 (vacating order sealing plea and sentencing documents in case in which a foreign national was charged with espionage because the court, relying on CIPA, provided no opportunity for the public to be heard and failed to make specific findings). Indeed, all federal courts that have considered the issue have flatly rejected the government's contention that CIPA somehow relieves a court of its obligation to adhere to the mandatory First Amendment closure procedures in an espionage case: "[T]he procedural requirements ... are fully applicable in the context of closure motions based on threats to national security" and "[t]here is no reason to fear that these procedures would in themselves alert the public to the substance of the information sought to be kept secret."ID.at 391-92;accord U.S. v. Poindexter，732 F. Supp。165, 167 n. 9 (D. D.C. 1990) ("CIPA obviously cannot override a constitutional right of access");美国诉佩尔顿，696 F. Supp。156，157（D。Md。1986）（“​​ [CIPA]的立法历史上没有任何东西可以表明政府可以关闭全部或部分公开审判”）。

What these cases make clear is that the Court has an affirmative duty to determine if the executive branch's assertions regarding national security indeed warrant sealing. It is well-established that "important First Amendment values" cannot be overcome by "a mere assertion of 'national security.'"Pelton，696 F. Supp。at 159,accord In re Washington Post, 807 F.2d at 391 (vacating district court's sealing orders where the district court simply "deferr[ed] to the executive branch"). Rather, the right of access may be denied only if the Court conducts "its own分析[有争议的分类信息]，发现存在严重的国家安全问题”）。9 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). By contrast, in this case the stipulated protective order allowed sealing based solely on the government's "mere assertion of national security" when it delegated to a Security Officer the Court's duty to determine what documents filed by Lee contained classified information or implicated national security. The Security Officer was empowered to decide -- without making any findings and "in consultation with representatives of the appropriate [government] agencies" -- whether Lee's papers would be filed under seal. PO at 7-8.

This procedure plainly violated both the constitutional and common law rights of access. Moreover, CIPA does not -- and could not -- authorize the Court Security Officer to assume the Court's duty to review whether sealing indeed was warranted. 18 U.S.C.A. App. �� 1-16. Indeed, a review of protective orders in other cases implicating CIPA reveals that the Security Officer may only enforce the procedural mechanisms for the handling and storage of classified documents -- i.e., maintain secure areas for the viewing of documents and provide for the storage of classified documents.See, e.g., Protective Order in美国诉Poindexter，1988年WL 148597 *1（1988）（法院安全官员的职责是为了向具有安全许可的当事方披露机密文件的“建立程序”）；保护顺序U.S. v. Weinberger（作为被告的展览B提交Armstrong v. Executive Office of the President, 830 F. Supp. 19, 24 (D.C. Cir. 1993)) (Security Officer was responsible for identifying people with security clearance and for "establish[ing] procedures" for the disclosure of classified information to the defendant); Protective Order inU.S. v. Musa, 833 F. Supp. 752, 757-78 (E.D. Mo. 1993) (role of the Security Officers was to provide a "secure room" for the viewing of documents and make the "security arrangements necessary to protect from unauthorized disclosure any classified information"). By contrast, the Security Officer in this case was allowed to make substantive sealing decisions that implicated -- indeed, violated -- the First Amendment and the public's right of access. Not only did the stipulated protective order impermissibly delegate Article III determinations to a Security Officer, the Security Officer appeared to allow the wholesale sealing of documents when even the protective order itself only allowed for the sealing of those limitedportions包含真正的分类信息的文件。po at 8。

Moreover, the stipulated protective order allowed the government to decide for itself which of its own papers would be filed under seal, without any judicial review whatsoever. PO at 8. This was manifestly improper and unconstitutional. The federal judiciary cannot allow the executive branch to dictate what information implicates national security, and what should be sealed. As the Fourth Circuit explained in vacating sealing orders where, unlike here, the government claimed CIPA permitted sealing because access posed a threat to the lives of its agents:

In re Washington Post, 807 F.2d at 391-92.

In the landmark "Pentagon Papers" case, the Supreme Court also recognized that "[t]he word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."New York Times Co. v. U.S.，403 U.S. 713，719（1971）（Black and Douglas，J.J。，同意）。

即使政府可以辩称，根据CIPA，某些文件的一部分是正确密封的，许多密封的记录似乎并没有直接牵涉到机密信息，包括备忘录回应了Lee的选择性起诉材料的请求以及Lee的答复摘要以支持列预审释放。如果这些文档确实包含了真正暗示国家安全的信息，则很难想象它们只包含分类信息，因此重新进行是不可能的。此外，不可能确定在案卷表上标记为“密封”的其他身份不明的文件是否包含真正威胁国家安全的信息。

B.Documents Were Sealed Before The Public Had An Opportunity To Object

While the utter absence of the requisite judicial findings is a sufficient basis, alone, to require unsealing, the public also was denied adequate notice and an opportunity to object. The docket sheet shows that the government's first motion for a protective order (filed on December 13, 1999) was granted, without a hearing, just one day after it was docketed, thereby denying the public a reasonable time in which to object.参见，例如，美国诉克里登诉，675 F.2d 550，559（第3Cir。1982）（“必须给出一些通知，以告知公众其宪法权利可能与特定的刑事诉讼有关”）；Phoenix Newspapers v. U.S. Dist. Court，156 F.3d 940，949（9thCir。1998）（公众有权获得“有意义的机会来解决有关案情的密封……”）。

The government's December 22, 1999 motion for a protective order was properly docketed in advance of its disposition but was resolved by stipulation and without a hearing. Moreover, a number of motions, orders and documents -- described simply as "sealed" on the docket sheet -- were sealed between the first, improperly noticed protective order and the stipulated protective order. Thus, with regard to these documents, the "notice" and "opportunity to object" prongs of the mandatory sealing procedure also were not satisfied.

C.因为法院没有提出自己的调查结果
And Because The Public Was Denied An Opportunity To Object,
The Documents Must Be Unsealed

As the foregoing discussion and authorities conclusively demonstrate, a case involving classified information does not excuse a court from its constitutional obligations to (1) conduct its own review of the documents, and make specific, on-the-record findings as to whether the government's national security assertions truly justified sealing, and (2) provide an opportunity for the public to object to the sealing. These procedural requirements were not met here. Because these shortcomings cannot be cured by subsequent proceedings,In re Washington Post，807 f.2d，第392页，必须立即解开文件。10

III.

密封审前文件的实质性要求
要求法院审查所有密封文件和编辑
ONLY THE PORTIONS THAT IMPLICATE NATIONAL SECURITY

The Supreme Court and other courts also have established rigorous substantive limitations on the ability of courts to seal records filed in a criminal case. "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."Press- Enterprise I, 464 U.S. at 510;Globe Newspaper Co., 457 U.S. at 606-07;麦克维, 119 F.3d at 811. Thus, for a sealing order to survive, the specific, on-the-record findings the Court is required to make must satisfy the substantive test for closure and the record must support those findings.Press-Enterprise II, 478年美国13所示-15;俄勒冈出版公司诉美国区诉。法庭, 920 F.2d 1462, 1466 (9th Cir. 1990). More specifically, the Court must find, and the record must reflect, that (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.In re Washington Post, 807 F.2d at 392;媒体企业i, 464 U.S. at 510-11;另请参阅CBS。公司, 765 F.2d at 826 ("excision from documents of names and transactions" is an alternative to sealing).

It is readily apparent that these substantive requirements were not satisfied and that "[t]he district court here failed to engage in the required three-part constitutional analysis."In re Washington Post, 807 F.2d at 393. Nor could this test be satisfied, at least as to the vast majority of material under seal. To begin with, mere reliance on CIPA or blanket assertions of national security does not even met the first and second parts of the test. Rather, the Court must find that there is a substantial probability that national security will in fact be banned absent sealing.ID。;另请参阅Phoenix报纸, 156 F.3d at 949;Seattle Times, 845 F.2d at 1523.11此外，即使记录显示，法院可以发现，某些文件的某些部分实际上会对国家安全构成威胁，如果不公开，这一权益支持联邦法院向联邦法院批发的批发封印，这是不可想象的。已经认识到访问权，尤其是因为保护令本身说，这些记录的部分可能被密封。12

至少,法院应该检查密封records and redact only those portions, if any, that, in its own determination, truly threaten national security and release the balance of the sealed records.See, e.g. In re New York Times Co.，828 F.2d 110，116（2“ DCir。1987）（初审法官应考虑“批发密封文件”的替代方案，例如“姓名的修订，也许是……动议中包含的材料的部分...论文....”）;Poindexter，732 F. Supp。在169（允许在前国家安全顾问审判期间关闭里根总统的沉积里根的证词“因为在证词后，法院将“从录像中编辑那些包含敏感材料的部分”）；Pelton，696 F. Supp。at 159 ("[i]n balancing the opposing interests of national security and the public's right of access to a public trial, the court finds ... that both interests can be reasonably well accommodated by making public a redacted version of the transcripts").13

CONCLUSION

如图所示，在这种情况下，文件的密封并不符合最高法院和其他法院规定的程序和实质性测试，并且违宪。14

At a minimum, this Court must review all sealed documents and unseal the portions of the documents that contain information that does not threaten national security. The documents, or portions of documents, should be immediately unsealed to prevent any further violation of the public's constitutional and common law rights:

格罗夫新鲜的分销商，24 F.3d 893，897（7thCir。1994）（省略引文）。

在法院在这种情况下纠正密封命令之前，联邦调查局和美国新墨西哥州的美国检察官犯了“司法部，司法部的犯罪”。反对李，但反对整个国家。RT，55：4-7。出于所有上述原因，CAA尊重要求该法院批准该动议并立即解除所有密封命令。在没有立即开放的情况下，CAA要求就有争议的重要宪法和普通法权利进行听证。

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