Dhiab v. Obama , 70 F. Supp. 3d 486 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ABU WA' EL (JIHAD) DHIAB,
Petitioner,
v. Civil Action-No. 05-1457 (GK)
BARACK H. OBAMA, et al.
Respondents.
MEMORANDUM OPINION
Pursuant to Federal Rule of Civil Procedure 2 4 and Local
Rule of Civil Procedure 7 (j), Hearst Corporation, Inc., ABC,
Inc., Associated Press, Bloomberg L. P., CBS Broadcasting, Inc.,
The Contently Foundation, Dow Jones & Company, Inc., First Look
Media, Inc., Guardian US, The McClatchy Company, National Public
Radio, Inc., The New York Times Company, Reuters America LLC,
Tribune Publishing Company, LLC, USA TODAY, and The Washington
Post ("Press Applicants" or "Intervenors") seek to intervene and
to unseal twenty-eight videotapes that have been entered into
the record of the above captioned matter.
Before filing their Motion to Intervene and to Unseal
Videotape Evidence, Intervenors conferred with counsel for
Petitioner Abu Wa'el (Jihad) Dhiab ("Petitioner" or "Dhiab") and
with the Government ("the Government'' or "Respondents") .
Petitioner consents to the intervention and does not oppose
unsealing the videotapes. Intervenors' Mot. at 1 [Dkt. No. 263].
The Government does not object to Press Applicants' Motion to
Intervene, but the Government opposes unsealing the videotapes.
Intervenors' Mot. at 1; Resp'ts' Opp'n at 2.
Upon consideration of Intervenors' Motion to Intervene and
to Unseal Videotape Evidence, Respondents' Opposition to Press
Applicants' Motion to Unseal Videotape Evidence, Intervenors'
Reply, and the entire record herein, and for the reasons stated
below, Intervenors' Motion to Intervene is hereby granted and
Intervenors' Motion to Unseal is hereby granted, with
modifications.
I. BACKGROUND
A. Factual Background
Wa' el (Jihad) Dhiab, a citizen of Syria, has been held by
the United States Government in a detention facility at the
United States Naval Base in Guantanamo Bay, Cuba since as early
1
as 2002. [Dkt. No. 1]. In 2009, the Guantanamo Review Task
Force cleared Mr. Dhiab for release from his ongoing detention
at Guantanamo Bay. [Dkt. No. 175]. To this day, he remains
imprisoned there. In protest of his indefinite detention, Mr.
Dhiab has been on a long-term hunger strike. [Dkt. No. 175].
Petitioner alleges that the "precise date" of his transfer
to Guantanamo Bay is "unknown to [his] counsel, but known to
Respondents." [Dkt. No. 1 at ~ 23].
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On April 9, 2013, the Government notified Mr. Dhiab's
counsel that, in response to his on-going hunger strike, it had
begun to feed Mr. Dhiab nasogastrically against his will. [Dkt.
No. 17 5] . Mr. Dhiab continues to undergo enteral feeding when
the Government deems it necessary. Alka Pradhan Decl. at 28 U.S. C. § 1350, and international law.
[ Dkt. No. 1] . His Petition further alleged that the conditions
of his confinement violated the Fifth Amendment to the United
States Constitution. [ Dkt. No. 1] .
On July 30, 2013, Mr. Dhiab and several other hunger-
striking detainees submitted a motion to enjoin the Government
from continuing to enterally feeding them. [ Dkt. No. 17 5] . This
Court denied the Motion for a Preliminary Injunction for lack of
subject matter jurisdiction. [Dkt. No. 183].
On February 11, 2014, our Court of Appeals held that this
Court does have subject matter jurisdiction to hear Guantanamo
Bay detainees' challenges to the conditions of their
confinement. See Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir.
2014) .
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Accordingly, on April 18, 2014, Mr. Dhiab again filed a
Motion for a Preliminary Injunction, requesting that the Court
enjoin the Government from enterally feeding him and from
forcibly extracting him from his cell. [Dkt. No. 203]. After
Petitioner renewed his Motion, the Government disclosed that it
possessed videotapes of Mr. Dhiab' s forced-feedings and FCEs.
[ Dkt . No. 217] .
On May 13, 2014, Petitioner filed an Emergency Motion for
an order compelling the Government to preserve videotapes of Mr.
Dhiab's forced-feedings and forcible cell extractions and to
produce those videotapes to Petitioner's counsel. [Dkt. No.
217]. On May 23, 2014, the Court granted Petitioner's Motion in
part, and directed the Government to produce to Petitioner's
counsel "all videotapes made between April 9, 2013 and February
19' 2014, that record both [Mr. Dhiab' s] Forcible Cell
Extractions and subsequent enteral feeding." [Dkt. No. 225]. The
Government complied with that Order, and later provided
additional videotapes to Petitioner's counsel. [Dkt No. 250].
In a series of filings beginning June 14, 2014, Petitioner
placed 28 videotapes in the judicial record for this case. [Dkt.
Nos. 252, 262, 267]. The Government produced four additional
videotapes to Petitioner and asserts that "they are
substantially the same as the [other] 28 videos." Resp'ts' Opp'n
at 4 n.3.
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The videotapes have been classified at the "secret" level,
RDML Butler Decl. at ~ 7, based on the Government's belief that
the contents of these twenty-eight videotapes "could reasonably
be expected to cause serious damage to national security if
disclosed[,]" Id. at ~ 5. Thus, in accordance with the Court's
standing protective order applicable to all Guantanamo Bay
detainee habeas proceedings, the videotapes have been placed on
the Court's docket under seal. [Dkt. No. 57 ~ 47] (requiring all
documents containing classified information to be filed under
seal).
On June 20, 2014, Intervenors filed their Motion to Unseal
Videotape Evidence filed in this proceeding's record.
Intervenors' Mot. at 8. Members of the news media may properly
intervene for the purpose of seeking to unseal judicial records.
See In re Guantanamo Bay Detainee Lit., 624 F. Supp. 2d 27, 31
(D. D.C. 2009) ("Detainee Lit. I"); See also Wash. Post Co. v.
Robinson, 935 F.2d 282, 289-90 (D.C. Cir. 1991). Neither the
Government nor Petitioner oppose Press Applicants' Motion to
Intervene. Resp'ts' Opp'n at 2 n.1. Therefore, Intervenors'
Motion shall be granted.
II. Standard for Unsealing Judicial Records
A. The First Amendment Right to Judicial Records
The First Amendment's express guarantees of free speech,
freedom of the press, and the right to petition the government
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carry with them an implicit right of public access to particular
government information. Richmond Newspapers Inc. v. Virginia,
448 u.s. 555, 575-76 (1980). Our Court of Appeals has held that
"[t] he first amendment guarantees the press and the public a
general right of access to court proceedings and court documents
unless there are compelling reasons demonstrating why it cannot
be observed." Washington Post v. Robinson, 935 F.2d 2 82, 2 87
(D.C. Cir. 1991) (emphasis added).
As Judge Hogan explained in Detainee Lit. I, 624 F. Supp. 2d
at 35, in order to determine whether a particular proceeding and
related judicial records are subject to the public's right of
access, courts apply a two-part test, commonly referred to as
the test of "experience and logic," Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8-9 (1986) ("Press-Enterprise II").
The first prong of that test asks whether there is a history of
access to the proceeding. Press-Enterprise II, 478 U.S. at 8-9.
The second prong considers whether public access "plays a
significant positive role in the functioning of the particular
process in question." Id. Failure at either stage of the test is
fatal to a First Amendment public access claim. See United
States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997) . 2
2
In addition to the First Amendment right of access to
judicial records, the Supreme Court has recognized a common law
right "to inspect and copy judicial records." Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978); see also In re
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The public's right of access, once established, is a
qualified one. Limits on the public's right to acc.ess judicial
records are appropriate only upon the demonstration of an
"overriding interest based on findings that closure is essential
to preserve higher values.n Press-Enterprise Co. v. Superior
Court, 464 U.S. 501, 510 (1984) ("Press-Enterprise In) . "The
[overriding] interest [must] be articulated along with findings
specific enough that a reviewing court can determine whether the
closure order was properly entered.n Id.
The party seeking closure must show a "substantial
probabilityn of harm to an "overriding interestn which has been
identified; even a "reasonable likelihoodn of harm does not
suffice. Press Enterprise II, 478 U.S. at 14 (California statute
providing for closure of preliminary hearings "upon finding a
reasonable likelihood of substantial prejudicen placed "a lesser
NBC, 653 F.2d 609, 612 (D.C. Cir. 1981). Although courts
traditionally avoid constitutional questions if adequate
statutory or common law relief is available, our Court of
Appeals has made clear that courts should look first to the
Constitutional right of access where judicial records are at
issue. Washington Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C.
Cir. 1991) ("Appellant also claims that there is a common law
right of access to court records and documents. Like our sister
circuits, however, we reach the constitutional issues raised in
the appeal because of the different and heightened protections
of access that the first amendment provides over common law
rightsn) . Because the Court finds that Intervenors have a
Constitutional right of access to the videotapes at issue, it
need not reach Intervenors' common law claim.
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burden on the defendant than the 'substantial probability' test
which . . is called for by the First Amendment.").
Any limit on public access that a court does impose must be
"narrowly tailored to serve that interest." Press Enterprise I,
4 64 U.S. at 510. Complete closure of the judicial record is
proper only in the absence of any alternatives that would
provide adequate protection. Robinson, 935 F.2d at 290.
B. Court Discretion to Seal Judicial Records
In a trio of cases--Bismullah, Parhat, and Ameziane--our
Court of Appeals developed the standard for determining whether
information on the docket of Guantanamo Bay detainee habeas
cases may be sealed from public disclosure. In order to keep
judicial records under seal, "the [G]overnment first must
demonstrate what kind of information requires protection and
why, and then must show exactly what information in the case at
hand it seeks to protect." Ameziane v. Obama, 699 F.3d 488, 495
(D.C. Cir. 2012) (emphasis in original).
First, in Bismullah v. Gates, 501 F.3d 178, 187-89 vacated
554 U.S. 913 (2008), reinstated, Order, No. 06-1197 (D.C. Cir.
Aug. 22, 2008), petitions dismissed for lack of jurisdiction,
551 F.3d 1068 (D.C. Cir. 2009) the Court of Appeals considered
how and when to protect the sensitive information common to the
Guantanamo Bay detainee habeas cases and made clear that "[i]t
is the court, not the Government, that has discretion to seal a
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judicial record, which the public ordinarily has the right to
inspect and copy." (internal citations omitted). Accordingly,
the Court rejected a Government proposal that would have granted
it the authority to determine unilaterally whether unclassified
information is "protected" and therefore kept under seal. Id.
Second, in Parhat v. Gates, 532 F.3d 834, 852-53 (D.C. Cir.
2008), the Court of Appeals further explained that in order to
maintain records under seal, the Government must provide an
"explanation tailored to the specific information at issue"
rather than "spare, generic assertions of the need to protect
information." The Court rejected the Government's motion to
protect from public disclosure "all nonclassified record
information that it has labeled law enforcement sensitive, as
well as the names and identifying information of all U.S.
government personnel mentioned in the record." Id. at 235
(internal quotation marks omitted.) The Court concluded that
"[b] y resting its motion on generic claims, equally applicable
to all of the more than one hundred other detainee cases now
pending in this court, the government effectively 'proposes
unilaterally to determine whether information is protected.'"
Id. (citing Bismullah, 501 F.3d at 188).
Third, in Ameziane v. Obama, 699 F.3d 488, 494-95 (D.C.
Cir. 2010) (citing Parhat, 532 F.3d at 853) (internal quotation
marks omitted), the Court set out a two-part test to govern the
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sealing of judicial records in detainee cases: the Government
must put forth "at a minimum, [1] a specific, tailored rationale
for protecting a general category of information, and [2] a
precise designation of each particular item of information that
purportedly falls within the category described.'" The Court
observed that "the narrower the category for which the
government seeks protection, the more likely the government's
rationale will be sufficiently tailored[,]" although, the
government need not provide "a .Specific and distinct rationale
addressed. to each detainee's situation." Arneziane, 699 F.3d at
495.
III. ANALYSIS
A. Whether the Qualified Right of Access to Judicial
Records Extends to Classified Documents
The Court is well aware, as the Government has emphasized,
that in no case involving Guantanamo Bay detainees has any court
ordered disclosure of classified information over the
Government's opposition. However -- to be clear -- that does
not mean that in a given factual situation no court has the
discretion to do so if warranted. Quite the contrary. Our Court
of Appeals has stated that it is the judiciary's responsibility,
when ruling on an issue as overwhelmingly important as
diminution of our precious First Amendment rights, to ensure
that classification of the items in question, i.e., the FCE
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3
videos, is proper. See McGehee v. Casey, 718 F.2d 1137, 1148
(D.C. Cir. 1983).
Following the two-step test of Press-Enterprise II, Judge
Hogan in Detainee Lit. I first determined that "access to habeas
proceedings has been historically available." Detainee Lit. I,
624 F. Supp. 2d at 35. Recognizing that "the D.C. Circuit has been
silent on the issue," Judge Hogan noted that "other Circuits
have opined and uniformly held that the public has a First
Amendment right of access to civil proceedings and records," Id.
at 36, and concluded that "[a] petition for a writ of habeas
corpus is a civil proceeding[,]" Id. at 35 (citing Fay v. Noia,
372 u.s. 391, 423 (1963)).
Under Press-Enterprise II' s second prong, the Court found
"that 'public access plays a significant positive role in the
functioning' of these habeas proceedings." Detainee Lit. I, 62 4
F. Supp. 2d at 36 (quoting Press-Enterprise II, 478 U.S. at 8).
"Publicly disclosing the factual returns [produced in the habeas
proceedings] would enlighten the citizenry and improve
3
The fact the judicial records sought are videotapes, rather
than written documents, does not affect the analysis. See, e.g.,
In re ABC, 537 F. Supp. 1168, 1170 n.4 (D.D.C. 1982) (the right
of access "extends to records which are not in written form, for
example, videotapes"); cf. United States v. Graham, 257 F.3d
143, 153-54 (2d Cir. 2001) (videotape relied upon by court
subject to common law access right even though not admitted into
evidence); Application of CBS, Inc., 828 F.2d 958 (2d Cir. 1987)
(common law access right applies to videotape of deposition
presented to jury); United States v. Criden, 648 F.2d 814 (3d
Cir. 1981) (same).
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perceptions of the proceedings' fairness." Id. at 37 (citing New
York Times Co. v. United States, 403 U.S. 713, 728 (1971)
(Stewart, J., concurring) (observing that in the areas of
national defense and international relations, "the only
effective restraint upon executive policy and power ... may lie
in an enlightened citizenry")). Moreover, "[d]isclosing the
factual returns to the public would also benefit both parties.
The government's detention decisions would gain the
legitimacy that accompanies transparency." Detainee Lit. I, 624
F. Supp. 2d at 37. 4
Respondents deny that the qualified right of access
identified by the Court in Detainee Lit. I extends to the
videotapes at issue here. They contend, first, that the history
of access to habeas corpus proceedings and records does not
extend to classified information. Second, pointing to dicta in
Detainee Lit. I, 624 F. Supp. 2d at 37 ("any positive role would
be severely diminished if the public gains access to classified
information"), the Government argues that when a document has
been deemed classified by the Executive Branch, that fact alone
should bind the court to conclude that public access would not
play a significant positive role. Resp'ts' Opp'n at 18-21.
4
While the factual returns at issue in Detainee Lit. I were
not classified, the Government argued that they should have been
deemed "protected" and therefore not subject to public access.
624 F. Supp. 2d at 38.
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By applying the test of experience and logic directly to
classified information, the Government misreads Press Enterprise
llr 478 U.S. at 8-9. Courts must consider the history and
virtues of access to particular proceedings, not the information
that may arise during those proceedings. See Press-Enterprise II
478 U.S. at 8-9 (comparing the history and virtues of open jury
trials with the necessary "secrecy of grand jury proceedings"J.
Once the right of access to a proceeding has been established,
courts may use narrowly tailored measures to protect compelling
interests, like the safeguarding of sensitive information. See
Robinson, 935 F.2d at 290 (D.C. Cir. 1991).
In addition to misconstruing Press-Enterprise II, the
Government's arguments, if accepted, would displace the Court's
power to seal its own record, putting that authority in the
Government's hands alone. However, the Court of Appeals in
Busmillah, 501 F.3d at 188, clearly stated that "[i] t is the
court, not the Government that has discretion to seal a judicial
record."
The Fourth Circuit, in In re Washington Post Co., 807 F.2d
383, 391-92 (4th Cir. 1986), concluded that although the
Executive has the sole authority to determine what information
is properly classified for its purposes, only the judiciary has
the discretion to seal or unseal a judicial record. While the
Court admitted to being "troubled by the risk that
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disclosure of classified information could endanger the lives of
both Americans and their foreign informants, [it was] equally
troubled by the notion that the judiciary should abdicate its
decision-making responsibility to the executive branch whenever
national security concerns are present. History teaches us how
easily the spectre of a threat to 'national security' may be
used to justify a wide variety of repressive government actions.
A blind acceptance by the courts of the government's insistence
on the need for secrecy, without notice to others, without
argument, and without a statement of reasons, would
impermissibly compromise the independence of the judiciary and
open the door to possible abuse." Id. (emphasis added).
B. Application of Press Enterprise II and Parbat to the
Twenty-Eight Video Tapes
The Government identifies five means by which release of
the videotapes would give rise to a substantial probability of
harm to a compelling interest: ( 1) the videos could aid the
development of countermeasures to FCEs; ( 2) depictions of camp
infrastructure in the videos could allow detainees or others to
disrupt the camp; ( 3) detainees might respond to release of the
videos by deliberately trying to behave in such a way that
necessitates greater use of the FCEs; (4) the videos could
"inflame Muslim sensitivities overseas" or be used as
propaganda; (5) release of the videotapes could subject Mr.
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Dhiab to "public curiosity" and "could affect the practice of
other states in this regard, which would in turn dilute
protections afforded U.S. service personnel in ongoing overseas
contingency operations and future conflicts." Resp'ts' Opp'n at
27.
1. The Government's Burden
In order to seal the judicial record and defeat the
public's qualified right of access, the Government carries a
heavy burden. It must put forth "at a minimum, [1] a specific,
tailored rationale for protecting a general category of
information, and [2] a precise designation of each particular
i tern of information that purportedly falls within the category
described." Ameziane, 699 F.3d at 494-95 (citing Parhat, 532
F.3d at 853) (internal quotation marks omitted). The reasons it
gives for protecting the information must demonstrate a
"substantial probability of harm" to an "overriding interest."
Press-Enterprise II, 478 U.S. at 14.
As already noted, the fact that the Government has
unilaterally deemed information classified is not sufficient to
defeat the public's right. See Bismullah, 501 F.3d at 188. Even
when the Government's reasons for classification point to a
substantial probability of harm, the Court must assure itself
that the justifications given are "rational and plausible." See
McGehee, 718 F.2d at 1149. The Government must provide "reasoned
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and detailed explanations" and courts "must satisfy
themselves that the [Government] in fact had good reason
to classify." Id. at 1148-49.
In short, it is our responsibility, as judges, as part of
our obligation under the Constitution, to ensure that any
efforts to limit our First Amendment protections are scrutinized
with the greatest of care. That responsibility can not be
ignored or abdicated.
Therefore, when the sealed facts are already public,
maintaining documents under seal is only appropriate when,
despite what the public already knows, the documents' release
would still give rise to a substantial probability of harm. See
Robinson, 935 F.2d at 291-92 (unsealing a plea agreement because
Government's concerns that "release of a plea agreement may
threaten an ongoing criminal investigation~ or the safety of the
defendant and his family" were unfounded when "the fact that the
plea agreement was entered into in exchange for McWilliams'
cooperation was already within the public knowledge."); see also
In re The Herald Co., 73.4 F.2d 93, 101 (2d Cir.1984) ("Though
the basis for apprehending harm to the defendant is apparent,
the record raises a question as to whether the information
sought to be kept confidential has already been given sufficient
public exposure to preclude a closure order on this account.").
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Our Court of Appeals has cautioned that while "it is our
customary policy to accord deference to the President in matters
of foreign affairs [the] detainee cases are unique."
Ameziane, 699 F.3d at 494 (emphasis added) (internal citations
and quotation marks omitted) . "Because of the independent role
carved out for the judiciary, and our concomitant obligation to
balance the needs of the government against the rights of the
detainee, and also to preserve to the extent feasible the
traditional right of public access to judicial records grounded
in the First Amendment, we exercise greater caution in deciding
to defer." Id. The Court must give deference when it is due, but
"deference is not equivalent to acquiescence." Campbell v. U.S.
Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998).
This Court viewed the initial 28 videos made by the
Government, and has read, re-read, and carefully analyzed the
Declaration of Rear Admiral Richard W. Butler, which contains
the Government's justification for opposing disclosure of the
forced-feeding and FCE videos in this case, as well as Exhibit 1
attached to his Declaration.
In reviewing Rear Admiral Butler's justifications for
closure, the Court finds -- as it will now detail -- that most
of them are unacceptably vague, speculative, lack specificity,
or are just plain implausible.
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2. The Government's Concerns
a. Development of Countermeasures
At several points, the Declaration relied on by the
Government refers to the possibility that "detainees and other
enemies" may develop countermeasures to the FCE and forced-
feeding procedures. RDML Butler Decl. at ~ 12; accord. Id. at ~~
11-14. Nowhere does the Government specify what these
"countermeasures" may be or what form they might take.
Paragraph 13 discusses enteral feeding videos, which
depict, among other things, "the layout of the enteral feeding
space, location of equipment that [according to the Government]
could be used as a weapon, and the number of personnel involved
[in the enteral feeding process] . " The declaration states that
the "release of any footage of this type provides the enemy with
opportunity to search for weaknesses and vulnerabilities
exposing FCE and medical personnel to possible attack."
(emphasis added). Paragraph 13 also states that "[p]ublic
release of FCE videos could provide detainees with the
ability to devise new ways to thwart the enteral feeding
process [.]" However, the detainees subjected to forced-feeding
are already intimately familiar with the enteral feeding process
and facilities. Moreover, the Government has already released
substantial information relating to the feeding process,
including the layout of and equipment in the enteral feeding
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5
space. It strains credulity to conclude that release of these
videos has a substantial probability of causing the harm the
Government predicts.
Paragraphs 11, 12, 14, and 17 of the Declaration all amount
to a claim that release of the "videos" "poses risk to military
personnel as detainees and other enemies armed with such
information can develop countermeasures to FCE tactics and
procedures [, ] " Id. at '][ 12. Paragraph 17, in particular, claims
that upon release of the "videos" detainees could obtain
information from relatives that would help them develop FCE
"countermeasures." This statement is particularly difficult to
understand. The fact of the matter is that all detainees'
communications with outsiders are closely monitored by the
personnel at Guantanamo Bay. 6
5
See, e.g., DVIDS, Joint Medical Group (Apr. 10, 2013),
available at http://www.dvidshub.net/image/920530/joint-medical-
group#.U9Qkv4BdWvO (picture of feeding chair);
http://www.dvidshub.net/image/920537/joint-medical-
group#.U9QlL4BdWvO (picture of enteral feeding preparation kit);
http://www.dvidshub.net/image/920535/joint-medical-
group#.U9QldiBdWv0 (same) ;
http://www.dvidshub.net/image/920549/joint-medical-
group#.U9Pq3oBdWvO (gallery of sixteen images showing 1 among
others, "medical stay area inside the Joint Medical Group"); see
also Joint Task Force Guantanamo Bay, Cuba, Joint Medical Group,
MEDICAL MANAGEMENT OF DETAINEES ON HUNGER STRIKE (March 5, 2013)
[Dkt. 203-7] .
6
P. Finn & J. Tate, Guantanamo Bay detainees' family members
may be allowed to visit, Wash. Post (May 11, 2011), available at
http://www.washingtonpost.com/national/Guantanamo-bay-
detaineesfamily-members-may-be-allowed-to-
visit/2011/05/11/AFGAMtsG_story.html (reporting that the "[a] 11·
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More generally, it is not sufficient to say that release of
the videotapes "poses risk to military personnel" because
enemies "can develop countermeasures." RDML Butler Decl. at Id. at 14 ("Divulging videos of [FCEs and enteral
feedings] could reasonably be expected to result in the
development of countertactics") . The Government's burden is to
show a "substantial probability" of harm to a compelling
interest. Press Enterprise II, 478 U.S. at 14 (statute providing
for closure of preliminary hearings "upon finding a reasonable
likelihood of substantial prejudice" placed "a lesser burden on
the defendant than the substantial probability test which .
is called for by the First Amendment.").
Furthermore, the Government's claim that release of the
videos would lead to unspecified FCE "countermeasures" is
implausible. The detainees are already familiar with the tactics
used to extract them from their cells and enterally feed them,
and detailed descriptions of the procedures are publicly
available on the internet. 7
conversations [between detainees and their families] are
monitored by the military").
7
See Joint Task Force Guant2mamo Bay, Cuba, Joint Medical
Group, MEDICAL MANAGEMENT OF DETAINEES ON HUNGER STRIKE (March
5, 2013) [Dkt. 203-7]; Joint Task Force - Guant2mamo, CAMP DELTA
STANDARD OPERATING PROCEDURES §§ 24.1-24.3 (Mar. 1, 2004),
available at
http://www1.umn.edu/humanrts/OathBetrayed/sop_2004.pdf
(procedures governing Immediate Reaction Force ("IRF") teams at
Guantanamo).
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The Government notes that some elements of the FCE
procedure are performed outside the detainees' view. RDML Butler
Decl. at ~ 12. But those procedures, described in minute detail,
8
are already in the public sphere. Bureau of Prison regulations,
on which the Guantanamo Bay regulations are modeled, Resp' ts'
9
Opp. 3; Bogdan Decl. at~ 4, are public, as are analogous state
10
regulations. One fact the government specifically worries about
-- that the videos would show the number of guards involved in
the FCE procedure, Resp'ts' Opp'n at 5; RDML Butler Decl. at ~
10 -- is easy to locate on-line. 11
Given what is already available to the public and known to
the detainees, it simply is not plausible to argue that release
of the videos will give rise to an additional probability of
harm by encouraging the development of FCE countermeasures.
8
Id.
9
See Federal Bureau of Prisons Program Statement P55 66. 0 6,
Subject: Use of Force and Application of Restraints; 28 C.F.R. §
552.21 et seq.
10
See, e.g., Cal. Dep't of Corr. & Rehab., Operations Manual
§ 51020.12.3, available at
http://www.cdcr.ca.gov/regulations/Adult_Operations/DOM_TOC.html;
Fla. Admin. Code §33-602.210, available at
http://florida.eregulations.us/rule/33-602.210; Minn. Dep't of
Corr. , Policies, Directives, and Instructions Manual, available
at
http://www.doc.state.mn.us/DocPolicy2/html/DPW_Display_TOC.asp?O
pt=301.081.htm.
II
Joint Task Force Guantanamo, CAMP DELTA STANDARD
OPERATING PROCEDURES §§ 24.1-24.3 (Mar. 1, 2004), available at
http://www1.umn.edu/humanrts/OathBetrayed/sop_2004.pdf ("There
will be primary and alternate [Immediate Reaction ("IRF")]
team [ s] designated for each camp. IRF teams consist of five
guards . ") .
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Robinson, 935 F.2d at 2 92 (unsealing plea agreement because it
was not "evident how such disclosure could pose any extra threat
to the safety of [the defendant] and his family" when the
defendant's cooperation with the government was public knowledge
"already validated by an official source") (emphasis added).
b. Disclosure of the Physical Layout of Camp
Infrastructure
A number of paragraphs in Rear Admiral Butler's Declaration
argue that release of the "videos" would allow adversaries to
reconstruct considerable portions of the camp infrastructure,
thereby threatening the security of the camps. See, e.g. , RDML
Butler Decl. at ']['][ 10, 15. Intervenors note that significant
information about the infrastructure of the Guantanamo camp is
already in the public domain. Unlike the information about the
FCEs, which is similar to but distinct from the information in
the videos themselves, Intervenors contend that public
information about the infrastructure of the camp is the same
information the Government here attempts to seal. Moreover, they
point out that the Government itself has released this
information. 12
12
C. Rosenberg, A prison camps primer, Miami Herald (June 15,
2014), available at
http://www.miamiherald.com/2014/06/15/2558413/web-extra-a-
prison-camps-primer. html (describing layout and details of
various camps within Guantanamo); R. Johnson, Inside Gitmo: An
Exclusive Tour of the Most Notorious Prison on Earth, Business
Insider (Apr. 25, 2013), available at
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For example, the Government has released pictures of
cellblocks and medical facilities, surveillance rooms, and
actual pictures of several camps, which include images of
13
medical facilities. The Government claims that release of
images of medical facilities could allow detainees to find items
that might be used as weapons and that public knowledge of
infrastructural information could facilitate disruption of good
order and discipline within the camps. In the face of what the
Government has already released, its concerns are simply not
~rational or plausible." See McGehee, 718 F.2d at 1148.
Ameziane made clear that courts may consider the
Government's own prior release of information when choosing
whether to seal a record. Ameziane, 699 F.3d at 498 (Although
~it was error to rely on third parties' purported knowledge of
his cleared status [,]" ~it would have been proper to consider
whether the government already had publicly acknowledged
http://www.businessinsider.com/gitmo-guantanamo-bay-photo-tour-
2013-4?op=1 (providing photographs of various parts of
Guantanamo, including a medical treatment room and occupied
cellblocks) ; Explorer: Inside Guantanamo, NAT' L GEOGRAPHIC
CHANNEL (Apr. 5, 2009) (~Inside Guantanamo I"), at 3:38-4:44,
11:38-14:27, 18:30-19:30, 25:34-28:00, 36:09-37:17 (cellblock),
2:13-3:38, 14:39-15:06, 18:00-18:29 (exterior and interior of
holding cells), 37:19-34 (force-feeding chair), available at
https://www.youtube.com/watch?v=B4J6_tCy8To; see also Inside
Guantanamo, 60 MINUTES (Nov. 3, 2013) (~Inside Guantanamo II"),
at 2:46-3:11 (cellblock), 9:53-10:22 (exterior and interior of
holding cells), 10:23-30 (surveillance room), available at
http://www.cbsnews.com/news/inside-Guantanamo/.
13 Id.
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Ameziane's clearance for transfer."). Accordingly, the
Government cannot meet its burden by simply asserting that
information regarding the infrastructure of the camp is critical
to national security when it has already released the very same
information to the public. Ameziane, 699 F.3d at 4 95 requires
the Government to provide "a specific, tailored rationale for
protecting a general category of information" and identify "each
particular item of information that purportedly falls within the
category." It has failed to do so.
c. Use of the Videos as Propaganda
Paragraphs 18, 21, 22, 23, and 24 all warn that the publi~
release of FCE and enteral feeding "videos," not necessarily Mr.
Dhiab' s videos, would prove useful as propaganda for Al Qaeda
and its affiliates and could increase anti -American sentiment,
thereby placing the lives of United States service members at
risk.
As we have seen in recent years, terrorists of all stripes
and ideologies have long been attempting to create anti-American
sentiment abroad by using publications as recruiting material
for new members.
However, courts have long rejected arguments to abridge the
First Amendment that would give rise to a "heckler's veto."
Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966). The rights
afforded by the First Amendment cannot be defeated "simply
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because [the rights exercised] might offend a hostile mob."
Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 134-35
(1992). As was aptly stated in ACLU v. Department of Defense,
389 F. Supp. 2d 547, 576 (S.D.N.Y. 2005), "[t]errorists do
not need pretexts for their barbarism." 14 Accordingly, "fear of
blackmail is not a legally sufficient argument to prevent [the
court] from performing a statutory command [,]" Id. at 57 5, much
less, complying with a Constitutional mandate.
d. Detainee Behavior that Would Require More
FCEs
The Government also contends that if any videotapes of FCEs
were to be released, other prisoners would be more likely to
engage in disruptive behavior, endangering themselves,
Guantimamo Bay staff and, eventually, national security. RDML
Butler Decl. at <]I 16; Resp' ts' Opp' n at 27. This justification
for denying the public's First Amendment right of access to
judicial records fails to show a substantial probability of
harm.
Paragraph 18 of RDML Butler's Declaration claims that "if
video recordings of forced cell extractions" were released to
the public, detainees would become aware of this and react by
14
Congress subsequently passed legislation that temporarily
exempted the photos at issue in ACLU from disclosure under the
Freedom of Information Act. See Protected National Security
Documents Act of 2009, 123 Stat. 2184, Pub. L. 111-83, Title V,
§ 565 (Oct. 28, 2009). Pursuant to the language of the statute,
that temporary exemption later expired.
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behaving in ways "likely [to] result in more [FCEs] ." This
argument fails to show a substantial probability of harm and is
entirely too speculative to defeat the public's right of access.
Intervenors' Motion does not ask that all videotapes of all FCEs
performed at Guantanamo Bay be released to the public. They ask
only to unseal those tapes that compose the particular record
for this proceeding. Nothing in this Court's decision would give
Guantanamo Bay detainees the unilateral right to publicize
videos of their own FCEs.
e. Public Curiosity and International
Reputation
What the Government means when it worries that "any portion
of the videotapes containing an image of the Petitioner could
expose him to public curiosity" is not immediately apparent.
Opp'n at 28. Mr. Dhiab has been clear that he wishes release of
the videotapes. It is hard to believe that Mr. Dhiab -- whose
particular videos are the only ones at issue would be
offended or distressed by knowing that the public was able to
view his treatment at Guantanamo Bay. Given the extensive
publicity about his situation, and the fact that on any number
of occasions his lawyers have talked to members of the press to
describe his plight, the Government's concern that he would be
harmed in any way by release of the videos is not plausible.
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Rear Admiral Butler claims in Paragraph 20 that release of
"videos, of detainees subject to forced cell extraction or
enteral feeding would raise serious questions by United States
allies and partners and others in the international community as
to whether the United States is acting in accordance" with what
he states is our country's "longstanding policy to protect
detainees from public curiosity, consistent with the Geneva
Conventions."
The Government's claim, if accepted, would turn the Third
Geneva Convention on its head. Rather than a source of rights to
humane treatment, Article 13 would become a means to shield from
public view treatment that Mr. Dhiab (and undoubtedly other
detainees) believe to be inhumane. Am. Civil Liberties Union v.
Dep't of Def., 543 F.3d 59, 91 (2d Cir. 2008) cert. granted,
judgment vacated on other grounds, 558 u.s. 1042 (2009)
("Release of the photographs [showing mistreatment of Abu Ghraib
prisoners] is likely to further the purposes of the Geneva
Conventions by deterring future abuse of prisoners. To the
extent the public may be 'curious' about the Army photos, it is
not in a way that the text of the Conventions prohibits;
curiosity about enemy prisoners being subjected to mistreatment
through the streets is different in kind from the type of
concern the plaintiffs seek to inspire.") (internal citations
and quotation marks omitted).
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6. Personally Identifying Information about Members
of the FCE Team and the Possibility of Covert
Communication
The Government contends, Resp'ts' Opp'n at 9-10, 29, and
Intervenors acknowledge, Intervenors' Reply at 20-21, that
protection of the identities of Guantanamo Bay staff is a
legitimate goal. Such protection, however, does not require
complete sealing of the videotapes. Adequate protection can be
provided by appropriate audio and visual edits, for example,
screening names and voices, blurring faces
\
and identifying
portions of uniforms, and blacking-out written materials on
walls. The Government's concerns regarding the possibility of
covert communications through the released videos can likewise
be so addressed. Complete closure is only appropriate when there
are no reasonable alternatives. Robinson, 935 F.2d at 290. That
is not the case here.
IV. CONCLUSION
For the foregoing reasons, Intervenors' Motion to Intervene
and to Unseal Videotape Evidence is hereby granted with
specified conditions.
October 3, 2014 Glad``~
United States District Judge
Copies to: attorneys on record via ECF
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