The opinion of the court was delivered by: GREENE
HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE
Seven news organizations have applied for access to the videotaped deposition of President Reagan, to be held February 16, 1990 at the United States Courthouse in Los Angeles.
The request implicates in varying degrees rights of the news organizations, the former President, the defendant, the prosecution, and the public. The Court has carefully considered all these interests.
On February 5, 1990, the Court ordered that former President Reagan testify by videotaped deposition at the defendant's trial. The Order declared that the Court would preside over the taking of the deposition to hear argument and rule, inter alia, on assertions of executive privilege by the former President or by President Bush as well as on issues arising under the Classified Information Procedures Act (CIPA).
The Court had then and it has now a deep concern about the risk of public disclosure in the course of President Reagan's testimony of sensitive national security and foreign policy information. Mr. Reagan was, of course, privy to the nation's most closely-guarded secrets until a little more than a year ago, and the issues in the instant case are infused with classified information. Indeed, it was in substantial part in order to avoid the unnecessary public revelation of such information that the Court directed that the former President's evidence be taken by non-public videotaping rather than during the trial itself. Opinion of February 5, 1990 at 46-49.
On February 12, 1990, as indicated, a number of news organizations submitted an application to the Court seeking "to attend the direct and cross-examination of former President Reagan." Application at 2. Cited in support of the application are the First Amendment, Local Rule 307,
and the common-law right of access to judicial records.
In the alternative, applicants request access to copies of the videotape of the deposition as soon as the classified information has been redacted. The Court has considered the application, as well as supporting and opposing memoranda, and it has heard oral argument from counsel for the news organizations and others. The Court now holds that because top secret and other extremely sensitive information will pervade the deposition, it will be held in camera. However, once the classified information has been edited from the videotape, the Court will order its public release.
Viewed in one way, the deposition of former President Reagan is nothing more than a pretrial proceeding. Although the First Amendment normally guarantees to the public and the press the right to attend criminal trials,
the right of access to pretrial proceedings is only a qualified one. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1985).
In deciding whether such access is mandated, the courts have looked to two factors: historical tradition and the public purpose to be served by public access.
See Press-Enterprise, 478 U.S. at 6-13; In Re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986).
It could hardly be argued that there is a tradition of public access to the type of pretrial proceeding involved here for, as the Court has previously explained, the provision of evidence by former or sitting Presidents of the United States has been extremely rare, and in each such instance the court having jurisdiction has had to fashion procedures tailored to the particular situation. Moreover, there has never been an instance of public testimony by a former President in a pretrial hearing, much less in a hearing that involves the President's knowledge of sensitive activities.
Perhaps of equal, if not more, importance is the fact that Congress has expressly mandated by its enactment of CIPA that pretrial proceedings involving classified information, as this one certainly will, shall be held in camera.9 See also, Fed.R.Crim.P. 16(d)(1).
Similarly, the public interest could well be injured by the attendance of press representatives at the deposition. As discussed below, it is impractical to screen out in advance all the sensitive security information that could be revealed in the course of the former President's examination and cross-examination. The strong likelihood is therefore present that information damaging to national security will be revealed. For these reasons, the news media are not entitled to attend this deposition if it is to be considered as a pretrial proceeding to which only a qualified right of access attaches.
Viewed in the light most favorable to the position of the media applicants, the February 16 proceeding will have two aspects: (1) a CIPA-type hearing
to determine the testimony and other evidence that may be admitted into evidence consistently with the demands of classification and necessary secrecy, and (2) the recording of testimony for use at the trial. Clearly, the press and the public are not entitled to attendance during the CIPA aspects of the hearing.
Disclosure of sensitive information is likely to occur in the normal course of the Reagan deposition, both during questioning and responses, and as colloquies are had between Court, counsel, and the witness with respect to the admission or rejection of particular questioning and particular testimony, as well as the need for substitutions pursuant to CIPA. For these reasons, the Court does not understand the media applicants to argue that they have a right to be present while ...