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Ninth Circuit's Kafkaesque briefing policy

In an extraordinary two-sentence order in Jewel v. NSA, the Ninth Circuit has accepted for filing an ex parte in camera classified brief that the plaintiffs will not be allowed to see. You'd think the government would be grateful for this seemingly unprecedented breach of due process, but they have instead doubled down to warn the judges not to ask any questions that would disclose information from that brief in public. [Politico]

If the Ninth Circuit is going to adopt such a policy, they should at least justify it with an opinion. Because that order is presumptively illegal. As we've previously quoted Judge Easterbrook in Union Oil Co. of California v. Leavell, 220 F.3d 562, 567-68 (7th Cir. 2002):

"Even disputes about claims of national security are litigated in the open. Briefs in the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), and the hydrogen bomb plans case, United States v. Progressive, Inc., 467 F.Supp. 990, rehearing denied, 486 F.Supp. 5 (W.D.Wis.), appeal dismissed, 610 F.2d 819 (7th Cir.1979), were available to the press. ... Judicial proceedings are public rather than private property, U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 27-29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994); In re Memorial Hospital of Iowa County, Inc., 862 F.2d 1299, 1302-03 (7th Cir.1988), and the third-party effects that justify the subsidy of the judicial system also justify making records and decisions as open as possible. What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification."

The circumscribed public oral argument will be held August 31, 2011, but the Ninth Circuit website doesn't yet indicate whether it will be in San Francisco or Pasadena.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.