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Dhiab v. Trump

United States Court of Appeals, District of Columbia Circuit

March 31, 2017

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

          Argued September 8, 2016

         Appeals 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. Collette, Attorney.

          David A. Schulz argued the cause for intervenors-appellees/cross-appellants. With him on the briefs was Matthew L. Schafer.

          Rachel B. Levinson-Waldman was on the brief for amici curiae Brennan Center for Justice and Electronic Frontier Foundation in support of intervenors-appellees.

          Hina 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:

         The 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.

         The 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 too extensive.


         The 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).[1]

         On 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 seal.[2]

         The 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).[3] 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.

         Press 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.

         In 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).

         In 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 moot.

         Our 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.

         When the case returned to the district court, it denied the government's motion for reconsideration and, over the government's objection, ordered the recordings[4] 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.[5] 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.[6] 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.


         The 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.

         Through 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.

         Here 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.

         Yet the 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.

         The intervenors rely heavily on Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986).[7] 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)).

         Press-Enterprise 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.

         Press-Enterprise 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.

         The second difference is just as obvious. Unlike Dhiab's case, which was civil in nature, [8] 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).[9] 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.[10] 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.

         There 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.[11]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).[12] 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.).

         In habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials.[13] 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, ...

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