United States Court of Appeals, District of Columbia Circuit
Jihad Dhiab, Detainee, Guantanamo Bay Naval Station and Shaker Aamer, as Next Friend of Jihad Dhiab, Appellees
Donald J. Trump, President of the United States, et al., Appellants Hearst Corporation, et al., Appellees
September 8, 2016
from the United States District Court for the District of
Columbia (No. 1:05-cv-01457)
Catherine H. Dorsey, Attorney, U.S. Department of Justice,
argued the cause for respondents-appellants/cross-appellees
(US). With her on the briefs were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, and Matthew M.
A. Schulz argued the cause for
intervenors-appellees/cross-appellants. With him on the
briefs was Matthew L. Schafer.
B. Levinson-Waldman was on the brief for amici curiae Brennan
Center for Justice and Electronic Frontier Foundation in
support of intervenors-appellees.
Shamsi and Arthur B. Spitzer were on the brief for amici
curiae American Civil Liberties Union of the Nation's
Capital and The Reporters Committee for Freedom of The Press
in support of intervenors-appellees/cross-appellants.
Before: Rogers, Circuit Judge, and Williams and Randolph,
Senior Circuit Judges.
Randolph, Senior Circuit Judge:
government's appeal, and the intervenors'
cross-appeal, are from the district court's orders
releasing video recordings made at the United States Naval
Base, Guantanamo Bay, Cuba. The recordings are of military
personnel removing a detainee from his cell, transporting him
to a medical unit, and force-feeding him to keep him alive
while he was on a hunger strike.
government classified these recordings as "SECRET"
because disclosing them could damage the national security.
The district court decided that under the Constitution the
public has a right to view the recordings because the
detainee's attorney filed some of them under seal, at
which point the recordings became part of the court's
record. The government's appeal is on the ground that the
public has no such constitutional right. The intervenors'
cross-appeal is on the ground that several categories of
redactions the court approved prior to public release were
case began when Abu Wa'el (Jihad) Dhiab filed a petition
for a writ of habeas corpus to prevent the government from
force-feeding him. The district court denied Dhiab's
motion for a preliminary injunction, finding that it lacked
habeas jurisdiction to correct conditions of confinement.
Dhiab v. Obama, 952 F.Supp.2d 154, 155 (D.D.C.
2013). On appeal, a panel of this court held that a
Guantanamo habeas petitioner may seek not only relief from
confinement, the traditional remedy in habeas corpus, but
also an injunction to alter the conditions of his
confinement. Aamer v. Obama, 742 F.3d 1023, 1033
(D.C. Cir. 2014).
remand, Dhiab moved again for a preliminary injunction, this
time challenging particular government force-feeding
practices. He also filed an emergency application for a
temporary restraining order. The district court denied both
motions. Dhiab v. Obama, 74 F.Supp.3d 16, 19 (D.D.C.
2014); Order, Dhiab v. Obama, No. 05-01457 (GK),
(D.D.C. June 16, 2014), ECF No. 254. In considering
Dhiab's motions, the district court ordered the
government to provide Dhiab's attorney, who had been
given a security clearance, copies of the video recordings,
the existence of which the government had disclosed. After
the government complied with the order, to which it objected,
Dhiab's attorney filed some of the recordings under
government recorded Dhiab's removal from his cell and his
force-feeding in order to train military guards about how to
handle detainees in such circumstances. In classifying each
recording as "SECRET, " we shall assume that the
government complied with Executive Order No. 13, 526, 75 Fed.
Reg. 707 (Dec. 29, 2009). This Executive Order, and those of past
Presidents, see Dep't of Navy v. Egan, 484 U.S.
518, 527-28 (1988), specified three levels of classified
national security information: "TOP SECRET, "
"SECRET, " and "CONFIDENTIAL." The
"SECRET" classification is reserved for
"information, the unauthorized disclosure of which
reasonably could be expected to cause serious damage to the
national security" of the United States. Exec. Order No.
13, 526 § 1.2(a)(2). Unauthorized disclosure of such
classified information can be a federal criminal offense.
See, e.g., 18 U.S.C. § 793.
organizations - sixteen of them - sought to intervene in
Dhiab's habeas case and asked the district court to
unseal the recordings Dhiab's attorney had filed. Their
motion asserted that under the First Amendment, and common
law, the public had a right to see these recordings because
the recordings had become part of the record of Dhiab's
habeas corpus proceeding. The government did not oppose their
intervention motion but it did oppose the organizations'
motion to unseal the recordings. In support of its
opposition, the government filed declarations from military
officers explaining how release of the classified recordings
would threaten national security.
October 2014, the district court granted the
organizations' motion to intervene and their motion to
unseal the recordings, subject to further proceedings to
determine what portions of the recordings should be redacted
to protect information identifying government personnel.
Dhiab v. Obama, 70 F.Supp.3d 486, 501 (D.D.C. 2014).
December of that year, the government released Dhiab from
Guantanamo and transferred him to the control of the
government of Uruguay, thus rendering his habeas petition
court nevertheless heard the government's appeal from the
district court's October 2014 order unsealing the
recordings and determined that we lacked appellate
jurisdiction. We lacked appellate jurisdiction because the
district court's ruling was not an appealable final order
or an appealable collateral order in light of further
proceedings the court had scheduled. Dhiab v. Obama,
787 F.3d 563, 565-66 (D.C. Cir. 2015). We encouraged the
district court on remand to consider the government's
additional declarations, filed in support of a stay of the
unsealing order pending that appeal. Id. at 567.
These new declarations "set out the harm associated with
release of the videotapes in considerably more detail"
than the earlier ones. Id.
the case returned to the district court, it denied the
government's motion for reconsideration and, over the
government's objection, ordered the
recordings released after the government redacted
identifying information such as faces, voices and names of
government personnel. Dhiab v. Obama, 141 F.Supp.3d
23, 28-29 (D.D.C. 2015). By then Dhiab was no longer at
Guantanamo. Even so, the intervenors persisted in
their objections to some of the redactions and sought
reinstatement of some of the deleted audio portions of the
recordings or a transcript and subtitles. The district
court denied the intervenors' motion regarding redaction,
Dhiab v. Obama, 151 F.Supp.3d 28, 29 (D.D.C. 2015),
ordered the redacted recordings unsealed on or before January
11, 2016, and granted a stay pending this appeal and
cross-appeal, Order, Dhiab v. Obama, No. 05-01457
(GK), (D.D.C. Jan. 4, 2016), ECF No. 418.
intervenors' claim that the Constitution requires this
national security information, properly classified as
"SECRET, " to be divulged to the world because a
lawyer representing a Guantanamo detainee filed some of the
recordings under seal in his client's now-moot habeas
corpus action is untenable. It is important to bear in mind
that the Constitution gives "the President as head of
the Executive Branch and as Commander in Chief" the
"authority to classify and control access to information
bearing on national security . . .." Egan, 484
U.S. at 527.
the years our government has been steadfast in protecting
information that, if made public, would jeopardize the
security of the United States. Statutes, longstanding
regulations, comprehensive Executive Orders, rules of the
Chief Justice of the United States, local rules and practices
of the federal courts - and more, enforce and support the
President's constitutional duty to prevent our
government's secret information from seeing the light of
day, in judicial proceedings or otherwise.
the government established that the recordings of Dhiab were
properly classified as "SECRET." The district court
did not rule otherwise, and the intervenors did not claim,
let alone show, that the classifications were improper. The
government submitted declarations, about which more later,
demonstrating the harm that would result from releasing any
of these recordings, redacted or not.
intervenors insist that under the First Amendment, classified
information submitted under seal in a judicial proceeding
becomes fair game for a judicial disclosure order, such as
the one the district court issued in this case. Neither the
First Amendment nor any other provision of the Constitution
stands for such a principle.
intervenors rely heavily on Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8-9 (1986). This
Press-Enterprise II decision will not bear the
weight they place on it. The Supreme Court framed the
question in Press-Enterprise II this way: whether
the public had "a First Amendment right of access to the
transcript of a preliminary hearing growing out of a criminal
prosecution." Id. at 3. The Court put the
question in terms of the public's right because the
"First Amendment generally grants the press no right to
information about a trial superior to that of the general
public." Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589, 609-10 (1978) (citing Estes v. Texas,
381 U.S. 532, 589 (1965) (Harlan, J., concurring); Saxbe
v. Washington Post Co., 417 U.S. 843 (1974); Pell v.
Procunier, 417 U.S. 817 (1974); and Zemel v.
Rusk, 381 U.S. 1, 16-17 (1965)).
II discovered a constitutional right in the public,
although it was a qualified one: such proceedings may be
sealed but only if "specific, on the record findings are
made demonstrating that 'closure is essential to preserve
higher values and is narrowly tailored to serve that
interest.'" 478 U.S. at 13-14 (quoting
Press-Enterprise Co. v. Super. Ct.
(Press-Enterprise I), 464 U.S. 501, 510 (1984)
(considering the closure of voir dire in a criminal
trial)). The district court invoked this formulation in
ordering the classified Guantanamo recordings unsealed.
Dhiab, 70 F.Supp.3d at 493.
II is not comparable to this case. Two differences are
immediately apparent. When the Court wrote of the importance
of public access to evidentiary proceedings it could not
possibly have had in mind classified national security
information. The case came up from a California state court.
In criminal cases in California a preliminary hearing
functioned "much like a full-scale trial." 478 U.S.
at 7. The sealed record in Press-Enterprise II
consisted of testimony and exhibits relating to murder
charges, not classified material. Id. at 4.
second difference is just as obvious. Unlike Dhiab's
case, which was civil in nature,  the underlying action in
Press-Enterprise II was a criminal prosecution. When
it comes to classified national security information the
Supreme Court has decided that the distinction makes a
difference. See United States v. Reynolds, 345 U.S.
1, 12 (1953). In criminal cases, the government initiates the
prosecution. Access and disclosure rights in criminal cases
"do not endanger the government's paramount interest
in national security. The government's interest can be
protected by dismissal of the prosecution or less drastic
concessions by the government in a criminal case." Bruce
E. Fein, Access to Classified Information:
Constitutional and Statutory Dimensions, 26 Wm.
& Mary L. Rev. 805, 828 (1985). Matters are quite
different in civil cases: "the Government is not the
moving party, but is a defendant . . .."
Reynolds, 345 U.S. at 12. For this reason, the Court
in Reynolds held that the rationale behind access to
national security information in criminal cases had "no
application in a civil forum."
Id. For the same reason, a noted commentator
concluded that "plaintiffs suing the United States enjoy
no right of access to classified information pertinent to the
litigation." Fein, supra, at 828.
are additional reasons why Press-Enterprise II does
not apply to this case. To reach its result, the Supreme
Court recounted the English tradition of public criminal
trials, beginning - the Court wrote - before the Norman
conquest.Press-Enterprise II, 478 U.S. at
8. Although the Court did not say as much, the idea
apparently was that the Framers of the First Amendment must
have had this history in the back of their collective minds.
See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596,
604-05 (1982). The Court cited no historical evidence
supporting that proposition and the wording of the First
Amendment reveals no such understanding, as the Court itself
acknowledged in an earlier opinion. Id. at 604.
"With neither the constraint of text nor the constraint
of historical practice, nothing would separate the judicial
task of constitutional interpretation from the political task
of enacting laws currently deemed essential." In re
Reporters Comm. for Freedom of the Press, 773 F.2d 1325,
1332 (D.C. Cir. 1985) (Scalia, J.).
habeas corpus cases, there is no tradition of public access
comparable to that recounted in Press-Enterprise II
with respect to criminal trials. Habeas corpus proceedings
do not involve juries. Since the beginning they have been
decided by judges. Early English courts were in session for
only a few months each year. Paul D. Halliday, Habeas Corpus:
From England to Empire 355 n.79 (2010). Yet from the
fifteenth to eighteenth century, English courts regularly
adjudicated habeas petitions between sessions. Id.
at 56-57. At such times the English judges required jailers
to make their returns to the writ to the judge's private
chambers or to the judge's home. Id. at 54. The
judge then made his habeas decision in private. Id.
Between 1500 and 1800, about one-fifth of the writs the
judges of England issued required the jailer make the return
to chambers. Id. Although English judges more
frequently requested returns to chambers during the
vacations, the practice also occurred during terms of court.
Id. The Habeas Corpus Act of 1679, ...