DHIAB et al v. BUSH et al, No. 1:2005cv01457 - Document 349 (D.D.C. 2014)

Court Description: MEMORANDUM AND OPINION granting Press Intervenors' Motion [#263]to Intervene and Unseal Signed by Judge Gladys Kessler on 10-03-2014. (lcgk3, )

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DHIAB et al v. BUSH et al Doc. 349 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 Civil Federal Rule of Inc., Associated Press, Rule Procedure 7 (j), Procedure of Civil Hearst Corporation, Bloomberg L. P., The Contently Foundation, 2 4 and Local Inc., ABC, CBS Broadcasting, Dow Jones & Company, Inc., Inc., First Look Media, Inc., Guardian US, The McClatchy Company, National Public Radio, Inc., Tribune Post to The New York Times Publishing Company, LLC, Company, Reuters America LLC, USA TODAY, and The Washington ("Press Applicants" or "Intervenors") seek to intervene and unseal twenty-eight videotapes that have been entered into the record of the above captioned matter. Before Videotape filing the Motion Intervenors Evidence, Petitioner Abu Wa'el with their (Jihad) Government ("the Dhiab to Intervene conferred and with to Unseal counsel for ("Petitioner" or "Dhiab") and Government'' or "Respondents") . Dockets.Justia.com Petitioner consents to the intervention and does not oppose unsealing the videotapes. Intervenors' Mot. at 1 [Dkt. No. 263]. The Government Intervene, does not object to Press Applicants' Motion to 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' Applicants' Videotape Motion to Unseal Reply, and the entire record herein, below, Intervenors' Intervenors' Motion to Motion to Evidence, Press Intervenors' and for the reasons stated Intervene Unseal Opposition to is is hereby granted and hereby with granted, modifications. I. BACKGROUND A. Factual Background Wa' el the (Jihad) United Dhiab, States a citizen of Syria, Government in a detention has been held by facility at the United States Naval Base in Guantanamo Bay, Cuba since as early as 2002. 1 [Dkt. No. Force cleared Mr. at Guantanamo Bay. imprisoned there. 1]. In 2009, the Guantanamo Review Task Dhiab for release from his ongoing detention [Dkt. No. In protest 175]. of his To this day, indefinite Dhiab has been on a long-term hunger strike. he remains detention, Mr. [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 ｾ＠ 23]. -2- On April 9, counsel that, 2013, the Government notified Mr. Dhiab's in response to his on-going hunger strike, begun to feed Mr. No. 17 5] . Mr. the Government it had Dhiab nasogastrically against his will. Dhiab continues deems it to undergo necessary. Alka enteral Pradhan [Dkt. feeding Decl. when at <J[ 6 [Dkt. No. 256]. The follow to Government has instructions, resist"), anyone else, cause explained that resist (or disturbance, a guards when or prisoners "demonstrate endanger fail the to intent themselves or they are removed from their cells and taken to the medical facilities where enteral feeding takes place. Col.Bogdan Decl. at the <J[ 7 [Dkt. No. 288]. The military officials in charge of Guantanamo Forced Cell Bay facility Extraction feeding. The FCE facility are modeled sometimes in ("FCE") procedures on employ order practiced those used <J[<J[ the the Guantanamo Bay military Col. corrections Bogdan Decl. 4, 5. In May of 2014, videotapes of extractions. Mr. the Government disclosed that it possessed Dhiab's forced-feedings [ Dkt. No. 217] . Mr. No. 263]; Cortney Busch (Paralegal's · declaration and forcible cell Dhiab has left no doubt that he wants these videotapes to be made public. [Dkt. called accomplish facilities and the Federal Bureau of Prisons. at method to at by a Decl. at recounting Mr. -3- Intervenors' Mot. at 1 <J[<J[ 5-7 Dhiab' s [Dkt. No. 287] statements: "I want Americans to see what is going on at the prison today, they will prison understand should freedom, be why we closed. are If hunger-striking, the American they should watch these tapes. and people so why the stand for If they truly believe in human rights, they need to see these tapes."). B. Procedural Background On July 22, 2005, of Habeas Corpus, United States Alien Tort [ Dkt. No. of his Government His 28 confinement July 30, striking detainees violated Petition for a Writ U.S. C. § the U.S. 1350, and Petition further violated the States Constitution. On Dhiab filed his asserting that his indefinite detention by the Statute, 1] . Mr. Constitution, international the law. alleged that the conditions Fifth Amendment to the United [ Dkt. No. 1] . 2013, Mr. Dhiab and several submitted a motion to other hunger- 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. On February 11, Court does Bay have detainees' confinement. 2014, [Dkt. No. 183]. our Court of Appeals held that this subject matter challenges See Aamer v. jurisdiction to to Obama, 2014) . -4- the hear Guantanamo conditions 742 F.3d 1023, 1038 of (D.C. their Cir. Accordingly, Motion for enjoin the forcibly a on April 18, 2014, Preliminary Injunction, Government extracting from him from his of Mr. Dhiab again filed a requesting that the Court enterally Petitioner renewed his Motion, possessed videotapes Mr. feeding cell. [Dkt. him No. and 203]. from After the Government disclosed that it 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 produce those videotapes 217]. On May 23, 2014, part, and directed and forcible to cell extractions Petitioner's 2014, that the Government record complied to produce both [Mr. Dhiab' s] with that Order, to Petitioner's Forcible 225]. The later provided and [Dkt No. 250]. 2014, Petitioner placed 28 videotapes in the judicial record for this case. videotapes 262, to 267]. The Government Petitioner substantially the same as the and [other] at 4 n.3. -5- produced asserts Cell [Dkt. No. In a series of filings beginning June 14, 252, No. 2013 and February additional videotapes to Petitioner's counsel. Nos. to the Court granted Petitioner's Motion in Extractions and subsequent enteral feeding." Government [Dkt. counsel. counsel "all videotapes made between April 9, 19' and four that [Dkt. additional "they are 28 videos." Resp'ts' Opp'n The videotapes have been classified at the "secret" level, RDML Butler Decl. at 7, based on the Government's belief that ｾ＠ the contents of these twenty-eight videotapes "could reasonably be expected to disclosed[,]" standing cause Id. serious at protective 5. Thus, ｾ＠ order national security if in accordance with the Court's to all Guantanamo Bay the videotapes have been placed on the Court's docket under seal. containing to applicable detainee habeas proceedings, documents damage [Dkt. No. 57 classified 47] ｾ＠ information to (requiring all be filed under seal). On June 20, Videotape 2014, Evidence Intervenors' Mot. Intervenors filed their Motion to Unseal filed at 8. in this record. proceeding's Members of the news media may properly intervene for the purpose of seeking to unseal judicial records. See In (D. D.C. re Guantanamo 2009) Robinson, 935 Bay Detainee ("Detainee Lit. F.2d Government nor Intervene. 282, Resp'ts' I"); 289-90 Petitioner Opp'n (D.C. 2 624 F. Supp. 2d Cir. Press n.1. 31 v. Neither 1991). 27, Post Co. See also Wash. oppose at Lit., the Applicants' Therefore, Motion to Intervenors' Motion shall be granted. II. Standard for Unsealing Judicial Records A. The First Amendment Right to Judicial Records The First Amendment's freedom of the press, express guarantees of free speech, and the right to petition the government -6- carry with them an implicit right of public access to particular government 448 u.s. "[t] he information. Richmond 555, 575-76 (1980). first amendment Newspapers Inc. v. Virginia, Our Court of Appeals has held that 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 (D.C. Cir. 1991) Post v. Robinson, 935 F. 2d 2 82, 2 87 (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 access, courts the test of records are subject apply a two-part "experience and Superior Court, 478 U.S. 1, to logic," 8-9 (1986) right of commonly referred to as Press-Enterprise test, the public's v. Co. ("Press-Enterprise II"). The first prong of that test asks whether there is a history of access to the proceeding. The second prong Press-Enterprise II, considers whether public 478 U.S. access at 8-9. "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 -7- The public's qualified one. records are right of access, once established, is a Limits on the public's right to acc.ess judicial appropriate only upon the demonstration of an "overriding interest based on findings that closure is essential to preserve Court, 464 higher U.S. [overriding] values.n 501, interest 510 Press-Enterprise (1984) [must] Co. v. ("Press-Enterprise Superior In) . "The 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 suffice. Press Enterprise II, 478 U.S. at 14 providing for closure of harm does not (California statute 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. -8- burden on the defendant than the which . 'substantial probability' test . 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. proper at 510. only in Complete the closure absence of of the any judicial alternatives record that is 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 cases may be judicial sealed records demonstrate why, the what docket of Guantanamo from public under kind of disclosure. "the seal, Bay detainee In order to [G]overnment information requires habeas first protection keep must and and then must show exactly what information in the case at hand it seeks to protect." Ameziane v. (D.C. Cir. 2012) First, 913 Aug. 2008), 22, 551 F.3d 1068 699 F.3d 488, 495 (emphasis in original). in Bismullah v. 554 U.S. Obama, (2008), reinstated, petitions (D.C. Gates, Cir. 501 F.3d 178, Order, dismissed 2009) for No. 187-89 vacated 06-1197 lack of (D.C. Cir. jurisdiction, the Court of Appeals considered how and when to protect the sensitive information common to the Guantanamo Bay detainee habeas cases and made clear is the court, not the Government, -9- that "[i]t that has discretion to seal a judicial record, inspect and which the public ordinarily has the right to 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 "explanation under tailored rather than "spare, information." protect The from as the government (internal to the the Government specific Court rejected the disclosure Government's "all has labeled law enforcement names and identifying personnel to all of the more in mentioned marks Id. issue" in omitted.) motion record sensitive, information the of record." The Court to Id. all at concluded as U.S. 235 that equally applicable court, the to determine government whether effectively information is 'proposes protected.'" (citing Bismullah, 501 F.3d at 188). Third, Cir. an than one hundred other detainee cases now this unilaterally at nonclassified it quotation provide information "[b] y resting its motion on generic claims, pending must generic assertions of the need to protect public information that well seal, 2010) in Ameziane v. (citing Parhat, Obama, 699 F.3d 532 F.3d at 853) 488, 494-95 (D.C. (internal quotation marks omitted), the Court set out a two-part test to govern the -10- sealing of judicial records in detainee must put forth "at a minimum, for protecting a general cases: the Government [1] a specific, tailored rationale category of information, and [2] a precise designation of each particular item of information that purportedly observed falls that within "the the narrower government seeks protection, rationale will be The category described.'" the the sufficiently for category more likely the tailored[,]" Court which the government's 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 Government's not mean of classified in a over the However -- to be clear -- that does opposition. that information given factual discretion to do so if warranted. situation no court has the Quite the contrary. Our Court of Appeals has stated that it is the judiciary's responsibility, when ruling diminution that of on an our classification issue precious of the as overwhelmingly First Amendment items in -11- important rights, question, i.e., to as ensure the FCE videos, is proper. 3 See McGehee v. Casey, 718 1148 F.2d 1137, (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 have on the opined issue," and Judge uniformly Hogan held noted that the that "other Circuits 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 372 u.s. 391, 423 (1963)). Under "that Fay v. Noia, Press-Enterprise II' s 'public access plays a functioning' F.Supp.2d at second prong, significant positive role of these habeas proceedings." Detainee Lit. 36 (quoting Press-Enterprise "Publicly disclosing the factual returns proceedings] the Court would enlighten 3 the II, 478 U.S. found in the I, 62 4 at 8). [produced in the habeas citizenry and improve 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). -12- perceptions of the proceedings' fairness." Id. at 37 (citing New York 728 Times Co. v. (Stewart, J., national defense United States, concurring) and 403 (observing U.S. 713, that international in the (1971) areas "the relations, of 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 legitimacy that accompanies transparency." Detainee Lit. I, the 624 F.Supp.2d at 37. 4 Respondents identified by deny the that Court videotapes at issue here. of access to habeas in the Detainee I, Lit. They contend, corpus Second, 624 F.Supp.2d at 37 right I and of extends first, proceedings extend to classified information. Detainee Lit. qualified access to the that the history records does not pointing to dicta in ("any positive role would be severely diminished if the public gains access to classified information"), the Government argues that when been deemed classified by the Executive Branch, a document has 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. -13- 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 Government's arguments, if accepted, power record, to seal Government's Busmillah, its hands 501 own F. 3d at 188, II, the would displace the Court's putting However, alone. Press-Enterprise that the authority Court clearly stated that of in the Appeals "[i] t is in the court, not the Government that has discretion to seal a judicial record." The Fourth Circuit, 383, 391-92 (4th Cir. in In re Washington Post Co., 1986), concluded that 807 F.2d although the Executive has the sole authority to determine what information is properly classified for its purposes, the discretion to seal or unseal a Court admitted to being "troubled . -14- only the judiciary has judicial record. by the While the risk that disclosure of classified information could endanger the lives of both Americans and troubled by the their notion foreign that informants, the [it was] judiciary should equally abdicate its decision-making responsibility to the executive branch whenever national security concerns easily the spectre of a are present. threat to History teaches us how '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 without a impermissibly compromise the argument, and notice to statement of open the door to possible abuse." Id. without would reasons, of independence others, the judiciary and (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 the to a compelling interest: ( 1) development of countermeasures to FCEs; videos ( 2) could depictions aid the of camp infrastructure in the videos could allow detainees or others to disrupt the camp; videos by propaganda; detainees might respond to release of the deliberately necessitates "inflame ( 3) greater Muslim (5) trying use of to the sensitivities release of the -15- behave FCEs; in (4) such the overseas" or videotapes could a way videos that could used as subject Mr. be Dhiab to other "public states curiosity" in this and "could affect regard, protections afforded U.S. which would the in practice turn of dilute service personnel in ongoing overseas contingency operations and future conflicts." Resp'ts' Opp'n at 27. 1. In The Government's Burden order public's to seal qualified heavy burden. tailored right judicial of access, record the for and [2] a protecting precise and defeat Government It must put forth "at a minimum, rationale information, the [1] designation of carries a each within the described." (citing F. 3d at 853) gives for 699 F. 3d 494-95 (internal quotation marks omitted). protecting Press-Enterprise II, already information the "substantial probability of As at harm" to an of particular i tern of information that purportedly falls Ameziane, a specific, category general a the category Parhat, 532 The reasons it a demonstrate must "overriding interest." 478 U.S. at 14. the noted, fact that the Government has unilaterally deemed information classified is not sufficient to defeat the public's right. when the Government's substantial probability See Bismullah, reasons of for harm, 501 F.3d at 188. classification the Court must point assure Even to a itself that the justifications given are "rational and plausible." See McGehee, 718 F.2d at 1149. The Government must provide "reasoned -16- and detailed explanations" themselves that the and courts satisfy "must [Government] in fact had good reason to classify." Id. at 1148-49. In short, our it is our responsibility, obligation under the as judges, Constitution, to as part of 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. when Therefore, maintaining the documents despite what the sealed under facts seal public already is are only knows, the already public, appropriate documents' when, release would still give rise to a substantial probability of harm. Robinson, 935 F.2d at 291-92 Government's concerns that threaten an ongoing criminal See (unsealing a plea agreement because "release of ｩｮｶ･ｳｴｧ｡ｯｾ＠ a plea agreement may 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., the basis the record for 73.4 F.2d 93, apprehending harm to raises a question as 101 (2d Cir.1984) the defendant to whether the is ("Though apparent, information sought to be kept confidential has already been given sufficient public exposure to preclude a closure order on this account."). -17- Our Court of Appeals has cautioned that while "it is our customary policy to accord deference to the President in matters of foreign Ameziane, affairs [the] 699 F.3d at 494 detainee cases (emphasis added) and quotation marks omitted) . are unique." (internal citations "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 Government, and has Declaration of the viewed the read, re-read, Rear Admiral Government's initial for videos made by the and carefully analyzed the Richard W. justification 28 Butler, opposing which disclosure contains of the forced-feeding and FCE videos in this case, as well as Exhibit 1 attached to his Declaration. In closure, reviewing Rear Admiral Butler's justifications for the Court finds -- as it will now detail -- that most of them are unacceptably vague, speculative, or are just plain implausible. -18- lack specificity, 2. The Government's Concerns a. At Development of Countermeasures several points, the Declaration relied on by the Government refers to the possibility that "detainees and other enemies" may develop countermeasures to feeding procedures. RDML Butler Decl. at 11-14. Nowhere does the the ｾ＠ FCE and 12; accord. Government specify forced- Id. at what ｾ＠ these "countermeasures" may be or what form they might take. Paragraph depict, space, 13 discusses among other things, enteral videos, which "the layout of the enteral feeding location of equipment that could be used as a weapon, [in the enteral feeding [according to the Government] and the number of personnel involved feeding process] . " The declaration states that the "release of any footage of this type provides the enemy with opportunity exposing to FCE (emphasis search and added). release of FCE ability to process [.]" for medical Paragraph videos devise However, weaknesses personnel 13 could new the ways and also to vulnerabilities attack." possible states that "[p]ublic provide detainees to detainees thwart the enteral subjected to with the feeding forced-feeding are already intimately familiar with the enteral feeding process and facilities. substantial including the Moreover, information layout of the Government relating and to equipment -19- has the in already feeding the enteral released process, feeding space. videos 5 It strains credulity to conclude that release of these 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 information as detainees can develop procedures [, ] " Id. that upon information release from of The communications with enemies Paragraph 17, the relatives fact other countermeasures at '][ 12. "countermeasures." This understand. and "videos" that statement of the are such tactics FCE with and in particular, help could them claims obtain develop particularly difficult matter outsiders to detainees would is armed is that closely all FCE to detainees' 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-medicalgroup#.U9Qkv4BdWvO (picture of feeding chair); http://www.dvidshub.net/image/920537/joint-medicalgroup#.U9QlL4BdWvO (picture of enteral feeding preparation kit); http://www.dvidshub.net/image/920535/joint-medical(same) ; group#.U9QldiBdWv0 http://www.dvidshub.net/image/920549/joint-medicalgroup#.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-baydetaineesfamily-members-may-be-allowed-tovisit/2011/05/11/AFGAMtsG_story.html (reporting that the "[a] 11· -20- 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. 12; see also Id. at feedings] could a <JI 14 ("Divulging videos of [FCEs and enteral <JI reasonably be development of countertactics") . show at "substantial expected result in the The Government's burden is to probability" interest. Press Enterprise II, to of harm 478 U.S. at 14 to a compelling (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, videos would the lead to Government's unspecified claim FCE that release of the "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). -21- The Government notes that some elements of the FCE procedure are performed outside the detainees' view. RDML Butler Decl. at ｾ＠ 12. But those procedures, described in minute detail, are already in the public sphere. on which the Guantanamo Opp. 3; Bogdan Decl. ｡ｴｾ＠ regulations. 10 8 Bureau of Prison regulations, Bay regulations 4, are public, 9 are modeled, Resp' ts' as are analogous state 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 ｾ＠ 10 -- is easy to locate on-line. 11 Given what is already available to the public and known to the detainees, of the harm by it simply is not plausible to argue that release videos will encouraging give the rise to an additional development 8 of FCE probability of countermeasures. Id. 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 . ") . 9 -22- 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") b. Disclosure of the Infrastructure (emphasis added). Physical Layout of Camp A number of paragraphs in Rear Admiral Butler's Declaration argue that release of the reconstruct considerable "videos" would allow adversaries to portions of the camp infrastructure, See, thereby threatening the security of the camps. Butler Decl. at ']['][ 10, 15. Intervenors note that e.g. , RDML 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 information themselves, about the Intervenors infrastructure contend of the public that 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, at 2014), available http://www.miamiherald.com/2014/06/15/2558413/web-extra-aprison-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 -23- For example, cellblocks actual medical and the Government medical pictures of facilities, several 13 facilities. has The released pictures rooms, surveillance camps, which Government of and include claims of release that images 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. Government has already released, its In the face of what the concerns are simply not or plausible." See McGehee, 718 F.2d at 1148. ｾｲ｡ｴｩｯｮｬ＠ Ameziane Government's made own whether to seal a clear prior that release record. courts of Ameziane, choosing 699 F.3d at 498 (Although his cleared status [,]" the government the when was error to rely on third parties' whether consider information ｾｩｴ＠ ｾｩｴ＠ may purported knowledge of would have been proper to consider already had publicly acknowledged http://www.businessinsider.com/gitmo-guantanamo-bay-photo-tour2013-4?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) ï¼¨ï½¾ï½ ï½®ï½³ï½©ï½¤ï½¥ï¼  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) ï¼¨ï½¾ï½ ï½®ï½³ï½©ï½¤ï½¥ï¼  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. -24- Ameziane's clearance Government cannot for meet transfer."). its burden by Accordingly, simply the 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. the to Government provide Ameziane, "a 699 specific, F. 3d at 4 95 requires 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 ｰｵ｢ｬｩｾ＠ 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 Brown v. Louisiana, afforded by the would 383 First U.S. give 131, Amendment -25- rise 133 to a n.1 cannot be "heckler's (1966). The defeated veto." rights "simply because [the rights Forsyth Cnty., (1992). As exercised] might offend Ga. v. Nationalist Movement, was aptly stated in ACLU v. 389 F.Supp.2d 547, mob." 505 U.S. 123, 134-35 Department of Defense, do not need pretexts for their barbarism." 14 Accordingly, "fear of court] not a (S.D.N.Y. hostile "[t]errorists blackmail is 576 a 2005), legally sufficient argument to prevent from performing a statutory command [,]" Id. [the at 57 5, much less, complying with a Constitutional mandate. d. Detainee FCEs Behavior that Would Require More The Government also contends that if any videotapes of FCEs were to engage be released, in Guantimamo Bay at for staff the judicial <]I records and, 16; prisoners behavior, disruptive Butler Decl. denying other public's fails to national Opp' n at 27. First Amendment show a security. This right substantial likely to themselves, endangering eventually, Resp' ts' would be more RDML justification of access to probability of harm. Paragraph 18 video recordings the public, of RDML Butler's of forced detainees cell extractions" were would become 14 Declaration claims aware of this that released "if to and react by 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. -26- 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. Public Curiosity Reputation e. International and What the Government means when it worries that "any portion of the videotapes expose him to public Opp'n at 28. Mr. the videotapes. particular containing an image curiosity" is of the not Petitioner could immediately Dhiab has been clear that he wishes release of It is hard to believe that Mr. videos are the only ones at Dhiab -- whose would issue offended or distressed by knowing that the public was view his apparent. treatment at Guantanamo publicity about his situation, Bay. Given the be able to extensive 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. -27- 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 detainees from our country's public "longstanding curiosity, policy consistent to the with protect 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 detainees) treatment Mr. Dhiab (and undoubtedly other believe to be inhumane. Am. Civil Liberties Union v. Dep't of Def., judgment that 543 vacated F.3d 59, on other 91 (2d Cir. grounds, 2008) 558 cert. u.s. granted, 1042 (2009) ("Release of the photographs [showing mistreatment of Abu Ghraib prisoners] Conventions is likely by to further the deterring future abuse purposes of of the prisoners. Geneva To extent the public may be 'curious' about the Army photos, not in a way that the text of the Conventions the it is prohibits; curiosity about enemy prisoners being subjected to mistreatment through the streets is concern the plaintiffs different seek to in kind inspire.") and quotation marks omitted). -28- from the (internal type of citations 6. The Personally Identifying Information about Members of the FCE Team and the Possibility of Covert Communication Government Intervenors contends, acknowledge, protection of the legitimate goal. Resp'ts' Intervenors' identities Such of by protection, screening portions appropriate names of and audio voices, uniforms, Government's and Reply Guantanamo however, complete sealing of the videotapes. provided Opp'n at and visual blacking-out The concerns covert communications through the 29, at 20-21, Bay staff and does not that is a require Adequate protection can be blurring walls. 9-10, edits, faces \ for and written regarding the example, identifying materials on possibility of 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, and to Unseal Videotape Intervenors' Motion to Intervene Evidence is hereby granted with specified conditions. ï½ ï½¬ï½¡ï½¤ï½¾ï¼  October 3, 2014 United States District Judge Copies to: attorneys on record via ECF -29-

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