guantanamo force feeding tapes motion

5/24/2018 Guantanamo Force Feeding Tapes Motion

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UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

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ABI WAEL (JIHAD) DHIAB,

Petitioner/Plaintiff,-v-

BARACK H. OBAMA, et al.,

Respondents/Defendants.

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Civ. No. 05-1457 (GK)

PRESS APPLICANTS

MOTION TO INTERVENE

AND TO UNSEAL

VIDEOTAPE EVIDENCE

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Pursuant to Federal Rule of Civil Procedure 24 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

(collectively Press Applicants) by and through their undersigned counsel, hereby move to

intervene and to unseal certain videotape evidence entered into the record of the above-captioned

action.

In an effort to facilitate the Courts resolution of the Motion to Intervene, Press

Applicants have conferred with the Government and counsel for petitioner Dhiab in a good faith

effort to obtain their consent to Press Applicants intervention. The Government has reserved its

position. Mr. Dhiab consents to the intervention.

In support of their motion, Press Applicants submit the accompanying: (i) Memorandum

of Points and Authorities; (ii) Corporate Disclosure Certification; and (iii) Proposed Order.

ORAL HEARING REQUESTED.

Case 1:05-cv-01457-UNA Document 263 Filed 06/20/14 Page 1 of 2


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Dated: June 20, 2014 Respectfully submitted,

LEVINESULLIVANKOCH&SCHULZ,LLP

By:/s/David A. Schulz

David A. Schulz, DC Bar No. 459197Julie B. Ehrlich*

321 West 44th Street, Suite 1000New York, NY 10036

(212) 850-6100

[email protected]

[email protected]

Counsel for Press Applicants

* Pro hac vicemotion forthcoming

Case 1:05-cv-01457-UNA Document 263 Filed 06/20/14 Page 2 of 2


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Petitioner/Plaintiff,

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Civ. No. 05-1457 (GK)

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MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF PRESS APPLICANTS

MOTION TO INTERVENE AND TO UNSEAL VIDEOTAPE EVIDENCE



321 West 44th Street, Suite 1000New York, NY 10036

(212) 850-6100

[email protected]@lskslaw.com


* Pro hac viceapplication forthcoming

Case 1:05-cv-01457-UNA Document 263-1 Filed 06/20/14 Page 1 of 34


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND .............................................................................................................................2

A. Press Applicants .......................................................................................................2

B. Abu Wael (Jihad) Dhiab .........................................................................................2

C. Procedural Background to the Instant Motion .........................................................5

D. Previous Press Intervention in This Litigation.........................................................6

E. Relief Requested ......................................................................................................8

ARGUMENT ...................................................................................................................................8

I. PRESS APPLICANTS SHOULD BE PERMITTED TO

INTERVENE TO ENFORCE THE RIGHT OF PUBLIC ACCESS ..................................8

II. THE GOVERNMENT MUST SATISFY A HEAVY BURDEN

TO DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE ...............................10

A. The Press and Public Have a Qualified Rightto Inspect and Copy the Videotape Evidence ........................................................10

B. The Government Bears a Heavy Burden to Abridgethe Public Right of Access to the Videotape Evidence..........................................13

C. The Same Strict Standards Apply When the Government

Seeks to Seal Records in the Interest of National Security ....................................14

III. THE GOVERNMENT HAS NOT MET ITS BURDEN TO

DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE......................................18

A. Classification at the Secret Level Does Not Satisfy

the Constitutional Standard to Seal a Court Record ..............................................18

B. No Proper Basis Exists to Seal Informationthat is Largely Known to the Public ......................................................................21

CONCLUSION ..............................................................................................................................26



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TABLE OF AUTHORITIES

Page(s)

Cases

Aamer v. Obama,742 F.3d 1023 (D.C. Cir. 2014) .................................................................................................3

ACLU v. Dept of State,

878 F. Supp. 2d 215 (D.D.C. 2012) .........................................................................................18

ACLU v. Office of Dir. Natl Intelligence,

2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) .........................................................................20

In re ABC,

537 F. Supp. 1168 (D.D.C. 1982) ............................................................................................11

Application of CBS, Inc.,

828 F.2d 958 (2d Cir. 1987) ....................................................................................................11

In re Application of the N.Y. York Times Co. for Access to Certain Sealed Court Records,585 F. Supp. 2d 83 (D.D.C. Nov. 17, 2008) ..............................................................................8

*Application of NBC,635 F.2d 945, 952 (2d Cir. 1980) ............................................................................................11

In re Application of Newsday, Inc.,

895 F.2d 74 (2d Cir. 1990).........................................................................................................9

Ashworth v. Bagley,351 F. Sup. 2d 786, 792 (S.D. Ohio 2005) ..............................................................................11

Associated Press v. U.S. Dist. Ct.,

705 F.2d 1143 (9th Cir. 1983) .................................................................................................14

Berntsen v. CIA,

618 F. Supp. 2d 27 (D.D.C. 2009) ...........................................................................................16

Bismullah v. Gates,

501 F.3d178 (D.C. Cir. 2007) ....................................................................................................8

Ctr. for Natl Sec. Studies v. U.S. Dept of Justice,

331 F.3d 918 (D.C. Cir. 2003) .................................................................................................15

In re Charlotte Observer,

882 F.2d 850 (4th Cir. 1989) ...................................................................................................24



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Coldiron v. Dept of Justice,

310 F. Supp. 2d 44 (D.D.C. 2004) ...........................................................................................18

Detroit Free Press v. Ashcroft,

303 F.3d 681 (6th Cir. 2002) ...................................................................................................13

*Dhiab v. Obama,952 F. Supp. 2d 154 (D.D.C. 2013) .......................................................................................1, 3

EEOC v. Natl Childrens Ctr., Inc.,146 F.3d 1042 (D.C. Cir. 1998) .................................................................................................9

*Globe Newspapers Co. v. Super. Ct.,

457 U.S. 596 (1982) ...................................................................................................................9

Goldberg v. U.S. Dept of State,

818 F.2d 71 (D.C. Cir. 1987) ...................................................................................................18

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) .................................................................................................................12

*In re Guantanamo Bay Detainee Lit.,

624 F. Supp. 2d 27 (D.D.C. 2009) .............................................................................7, 8, 11, 15

*In re The Herald Co.,734 F.2d 93 (2d Cir. 1982).................................................................................................13, 14

Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123 (1951) .................................................................................................................20

In re Knight Publg Co.,

743 F.2d 231 (4th Cir. 1984) .....................................................................................................9

*Lugosch v. Pyramid Co.,

435 F.3d 110 (2d Cir. 2006).........................................................................................10, 11, 14

*McGehee v. Casey,

718 F.2d 1137 (D.C. Cir. 1983) ...............................................................................................16

N.Y. Civil Liberties Union v. NYC Trans. Auth.,

684 F.3d 286 (2d Cir. 2012).....................................................................................................10

In re N.Y. Times,

828 F.2d 110 (2d Cir. 1987).....................................................................................................14

N.Y. Times Co. v. United States,

403 U.S. 713 (1971) .................................................................................................................15



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In re NBC,

653 F.2d 609 (D.C. Cir. 1981) ...........................................................................................10, 11

Newman v. Graddick,

696 F.2d 796 (11th Cir. 1983) .................................................................................................11

*Nixon v. Warner Commcns, Inc.,435 U.S. 589 (1978) .................................................................................................................10

Oregonian Publg Co. v. Dist. Ct.,920 F.2d 1462 (9th Cir. 1990) .................................................................................................19

Osband v. Ayers,

2007 WL 3096113 (E.D. Cal. Oct. 22, 2007) ..........................................................................11

Phoenix Newspapers, Inc. v. U.S. Dist. Ct. for the Dist. of Ariz.,

156 F.3d 940 (9th Cir. 1998) ...................................................................................................14

*Press Enterprise Co. v. Super. Ct.,

464 U.S. 501 (1984) ...........................................................................................................12, 13

*Press-Enterprise v. Super. Ct.,

478 U.S. 1 (1986) .............................................................................................................passim

Ramirez v. Attorney Gen. of the State of N.Y.,1999 WL 1059966 (S.D.N.Y. Nov. 22, 1999) .........................................................................11

In re Reporters Comm. for Freedom of the Press,

773 F.2d 1325 (D.C. Cir. 1985) ...............................................................................................11

*Richmond Newspapers Inc. v. Virginia,

448 U.S. 555 (1980) .....................................................................................................10, 12, 13

Shelton v. Tucker,

364 U.S. 479 (1960) .................................................................................................................13

*Shingara v. Skiles,

420 F.3d 301 (3d Cir. 2005)...................................................................................................8, 9

Stillman v. CIA,

319 F.3d 546 (D.C. Cir. 2003) .................................................................................................16

Union Oil Co. v. Leavell,

220 F.3d 562 (7th Cir. 2000) ...................................................................................................15

United States v. Abegg,

21 Media L. Rep. (BNA) 1442 (S.D. Fla. 1993) ....................................................................11



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United States v. Amodeo,

71 F.3d 1044 (2d Cir. 1995).....................................................................................................12

United States v. Antar,

38 F.3d 1348 (3d. Cir. 1994)....................................................................................................19

United States v. Aref,533 F.3d 72 (2d Cir. 2008).......................................................................................................17

United States v. Criden,648 F.2d 814 (3d Cir. 1981).....................................................................................................11

United States v. Graham,

257 F.3d 143 (2d Cir. 2001).....................................................................................................11

United States v. Grunden,

2 M.J. 116 (C.M.A. 1977) .................................................................................................16, 24

United States v. Guzzino,

766 F.2d 302 (7th Cir. 1985) ...................................................................................................11

United States v. Hershey,

20 M.J. 433 (C.M.A. 1985) ................................................................................................16, 17

United States v. Mitchell,551 F.2d 1252 (D.C. Cir. 1976) ...............................................................................................12

United States v. Moussaoui,

65 F. Appx 881 (4th Cir. 2003) ..............................................................................................17

United States v. Mouzin,

559 F. Supp. 463 (C.D. Cal. 1983) ..........................................................................................11

United States v. Myers,

635 F.2d 942 (2d Cir. 1980).....................................................................................................11

United States v. Pelton,

696 F. Supp. 156 (D. Md. 1986) ..............................................................................................17

United States v. Poindexter,

732 F. Supp. 165 (D.D.C. 1990) ..............................................................................................17

United States v. Progressive, Inc.,

467 F. Supp. 990 (W.D. Wis. 1979) ........................................................................................15

United States v. Rosen,

487 F. Supp. 2d 703 (E.D. Va. 2007) ......................................................................................17



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United States v. Torres,

602 F. Supp. 1458 (N.D. Ill. 1985) ..........................................................................................11

Valley Broad. Co. v. U.S. Dist. Ct.,

798 F.2d 1289 (9th Cir. 1986) .................................................................................................11

*In re Wash. Post Co.,807 F.2d 383 (4th Cir. 1986) ...........................................................................................passim

*Wash. Post Co. v. Robinson,935 F.2d 282 (D.C. Cir. 1991) .........................................................................................passim

Statutes & Governmental Materials

Exec. Order 13526, dated Dec. 29, 2009 .......................................................................................18

Classified Information Procedures Act, 18 U.S.C., App. 3 (2000)................................................17

Reducing Over-Classification Act, Pub. L. 111-258, 2, 124 Stat. 2648 (Oct. 7, 2010) .............19

28 C.F.R. 549.65 ..........................................................................................................................25

Senate Report of the Commission on Protecting and Reducing Government Secrecy, 103rdCong., 1997, S. Doc. 105-2 (GPO 1997) ................................................................................19

Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing,Hearing Before the Subcomm. on National Security, Emerging Threats,

and Intl Relations of the Comm. on Government Reform,

108th Cong. 263 at 82-83 (2004) .............................................................................................19

Selected Other Authorities

Moath Al-Alwi,My Life at Guantanamo,

Al-Jazeera, July 7, 2013 ...........................................................................................................22

Amanda Gordon, The Constitutional Choices Afforded to A Prisoner on Hunger Strike:Guantanamo, 9 Santa Clara J. Intl L. 345 (2011) ..................................................................25

Emily Greenhouse,Mos Defs Act of Protest,

New Yorker, July 9, 2013 ........................................................................................................23

Erwin Griswold, Secrets Not Worth Keeping, Wash. Post,Feb. 15, 1989 ....................................20

George J. Annas,American Vertigo: Dual Use, Prison Physicians, Research, andGuantanamo, 43 Case W. Res. J. Intl L. 631 (2011) ..............................................................25

Janice L. Richter, We Have Waited So Long: The Story of Alice Paul,

New Jersey Lawyer, 171-SEP N.J. Law. 25 (1995). ...............................................................25



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Tracey M. Ohm,What They Can Do About It: Prison AdministratorsAuthority to Force-Feed Hunger-Striking Inmates,

23 Wash U. J. L. & Poly 151 (2007) ......................................................................................25



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PRELIMINARY STATEMENT

Through this motion 16 news organizations seek permission to intervene to enforce the

publics right of access to judicial records. Specifically, the Press Applicants seek to unseal

videotape evidence submitted in connection with petitioners efforts to stop the Government

from forcibly feeding him, utilizing procedures that he contends constitute torture and violate

his rights, Dkt. 203-1 at 11, and that this Court has described as painful, humiliating and

degrading,Dhiab v. Obama, 952 F. Supp. 2d 154, 156 (D.D.C. 2013).

Petitioner has submitted the videotape evidence to support two requests for extraordinary

injunctive relief. As established below, the public has a qualified right under both the First

Amendment and the common law to inspect and copy this evidence. No compelling reason

exists to abridge that right. Although the Government has classified the videotapes, it is no

secret that force-feeding is being used at Guantanamo; nor is there any secret regarding how it is

used. To the contrary, the public access right should be fully enforced because the videotapes

are the most direct and informative evidence of Government conduct that petitioner alleges to be

unlawful, and the videotapes form an important part of the record upon which the Court

evaluated Dhiabs application for a TRO and will base its preliminary injunction ruling. The

public is entitled to view this evidence to satisfy itself of the fairness of the outcome of this

proceeding and to exercise democratic oversight of its Government.



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BACKGROUND

A. Press ApplicantsPress Applicants are news organizations that regularly gather and publish news

concerning the Guantanamo detainees and the federal courts.1 They have covered the militarys

detention of alleged terrorists at Guantanamo Bay and their related habeas proceedings,

including this proceeding filed by Mr. Dhiab. In reporting on these issues, Press Applicants

routinely rely upon the publics constitutional and common law rights of access to court records

in order to gather the news and to inform the public accurately about the Governments actions

and the developments in these judicial proceedings.

B. Abu Wael (Jihad) DhiabPetitioner Abu Wael (Jihad) Dhiab has been detained at Guantanamo Bay since 2002.2

A 43-year-old Syrian national, he was arrested in Pakistan in April 2002 for unknown reasons.

According to his attorneys, soon thereafter, he was turned over to the United States government

and transferred to Guantanamo. See www.reprieve.org.uk/cases/abuwaeldhiab/. Dhiab filed his

petition for a writ of habeas corpus on July 22, 2005, asserting that his detention at Guantanamo

is unlawful under the U.S. Constitution, the Alien Tort Statue, 28 U.S.C. 1350, and

international law, and that conditions of his confinement violate the Fifth Amendment. In 2009,

President Obama cleared Dhiab for release from Guantanamo Bay. See Dkt. 175 at 10. He has

yet to be released.

1The Press Applicants are The Hearst Corporation, ABC, Inc., The 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, Tribune Publishing Company, LLC, USA TODAY, and The Washington Post.

2Unless otherwise noted, the facts concerning Mr. Dhiabs background are drawn from his petition. SeePetition (Dkt. 1),Dhiab v. Obama, No. 05-cv-01457 (D.D.C. July 22, 2005) (Pet.).



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Dhiab and several other Guantanamo detainees are on a long-term hunger strike to protest

their indefinite detention. More than a year ago, at some point before April 9, 2013, the

Government began to feed Dhiab nasogastrically against his will. Id. On June 30, 2013, Dhiab

and several other hunger striking detainees filed a motion for an injunction to prevent the

Government from force-feeding them. See Dkt. 175. Dhiabs motion asserted that the force-

feeding causes him significant pain and that, if not forcibly fed, he would continue his fast. Id.

This Court denied the preliminary injunction motion and a subsequent motion for

reconsideration on the basis that it lacked jurisdiction. SeeDkts. 182, 192;Dhiab v. Obama, 952

F. Supp. 2d 154 (D.D.C. 2013). Although the Court was constrained to deny Dhiabs

application for injunctive relief by a perceived lack of subject-matter jurisdiction, the Court

expressed its dim view of force-feeding, stating that

it is perfectly clear from the statements of detainees, as well as the

statements from [the American Medical Association, the World Medical

Association, the UN High Commissioner for Human Rights, and the UNRapporteur on Human Rights and Counter-Terrorism], that force-feeding

is a painful, humiliating, and degrading process.

952 F. Supp. 2d at 156.

On February 11, 2014, the Court of Appeals reversed, holding that this Court does have

jurisdiction to consider Guantanamo detainees challenges to the conditions of their confinement

there. See Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). In light of that ruling, on April 18,

2014, Dhiab again moved for a preliminary injunction, asking the Court to block the forcible

removals from his cell and to halt the forced feedings. See Dkts. 203 & 203-1. The Court

granted a temporary injunction on May 16, 2014, see Dkt. 221, but declined to extend it by order

dated May 22, 2014, out of concern for Dhiabs health, see Dkt. 224. Dhiab continues to be

extracted from his cell and forcibly fed enterally. See Dkt. 256.



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Dhiabs habeas petition, his participation in the hunger strike, and (in particular) his

repeated requests that the Court prohibit the Government from extracting him from his cell by

force and force-feeding him, have garnered significant public attention.3 The Governments use

of force-feedings in response to the hunger strikes remains the subject of ongoing debate and

significant public scrutiny.4 The public has a demonstrated and continuing interest in the

Governments detention of Mr. Dhiab, the conditions of his detention, the status of the hunger

strike and the Governments response.5

3See, e.g., Michael Doyle,Judge: I cant stop Guantanamo force-feeding but Obama can,Miami Herald,

July 8, 2013, available athttp://www.miamiherald.com/2013/07/08/3490834/judge-i-cant-stop-

guantanamo-force.html#; Michael Doyle,Appeals court declines to stop Guantanamo force-feeding,

McClatchy, February 11, 2014, available at http://www.mcclatchydc.com/2014/02/11/217730/appeals-

court-declines-to-stop.html; Carol Rosenberg,Judge halts force-feeding of Syrian Guantanamo captive,

Miami Herald, May 16, 2014, available at http://www.miamiherald.com/2014/05/16/4122110/federal-

judge-halts-forced-feeding.html;Dan Lamothe, U.S. judge permits Pentagon to force-feed Guantanamo

prisoner but issues rebuke, The Wash. Post, May 23, 2014, available athttp://www.washingtonpost.com/world/national-security/us-judge-permits-pentagon-to-force-feed-

guantanamo-prisoner-says-pain-possible/2014/05/23/a385cf72-e290-11e3-8dcc-

d6b7fede081a_story.html; Ed Pilkington, Guantanamo inmate makes new force-feeding complaint after

judges ruling, The Guardian, June 3, 2014, available at

http://www.theguardian.com/world/2014/jun/03/guantanamo-inmate-second-complaint-force-feeding.

4See, e.g., Karen McVeigh, Guantanamo inmate vomited blood after force-feeding, documents show, The

Guardian, May 22, 2014, available at http://www.theguardian.com/world/2014/may/22/guantanamo-

inmate-vomit-blood-force-feeding; Letter of Human Rights Organizations to Hon. Chuck Hagel,

Secretary, U.S. Dept of Defense, May 13, 2013, available at http://www.hrw.org/fr/node/115521 (calling

on the Department of Defense to end the force-feeding of competent hunger-striking prisoners in

Guantanamo Bay, which medical organizations repeatedly [have] condemned); Hayes Brown, U.N.

Official Says Gitmo Force-Feeding Violates Intl Law, ThinkProgress, May 1, 2013, available athttp://thinkprogress.org/security/2013/05/01/1946641/un-gitmo-torture/; Office of the High

Commissioner for Human Rights, Statement: IACHR, UN Working Group on Arbitrary Detention, UN

Rapporteur on Torture, UN Rapporteur on Human Rights and Counter-Terrorism, and UN Rapporteur

on Health reiterate need to end indefinite detention of individuals at Guantanamo Naval Base in light of

current human rights crisis, May 1, 2013, available athttp://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13278 (referring to force-

feeding of competent hunger strikers as unjustifiable and contrary to the principles set forth in the

World Medical Assemblys Declaration of Malta).

5See, e.g.,Lazaro Gamio and Carol Rosenberg, Tracking the Hunger Strike, Miami Herald, available athttp://www.miamiherald.com/static/media/projects/gitmo_chart; Carol Rosenberg,Military imposes

blackout on Guantanamo hunger-strike figures, Miami Herald, Dec. 3, 2013, available athttp://www.miamiherald.com/2013/12/03/3795285/guantanamo-ends-daily-hunger-strike.html.



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C. Procedural Background to the Instant MotionAfter Dhiab renewed his motion for a preliminary injunction in April 2014, the

Government disclosed that it possessed videotapes showing forcible cell extractions and force-

feedings at Guantanamo, but refused to produce them to Dhiabs counsel. See Dkt. 217 at 2. On

May 13, 2014, Dhiab filed an emergency motion for an order compelling the Government to

both (a) preserve the videotapes of his force-feedings and forcible cell extractions between April

9, 2013 and May 7, 2014, and (b) produce those videotapes to Dhiabs counsel. Dkt. 217.

After a conference on May 21, 2014, the Court granted Dhiabs motion in part, and (in

pertinent part) directed the Government to produce to counsel all videotapes made between

April 9, 2013, and February 19, 2014, that record both [Dhiabs] Forcible Cell Extraction and

subsequent enteral feeding no later than June 13, 2014. Dkt. 225 at 2. Pursuant to that order, on

June 13, 2014, the Government provided Dhiabs counsel with access to several of the

videotapes. The Court permitted the Government until June 16, 2014 to produce an additional

10 tapes. See Dkt. 250.6

On June 12, 2014, Dhiab filed a sealed emergency motion for a temporary restraining

order (TRO), the nature of which was not made public at that time. See Dkt. 253. After

viewing the first batch of recordings, on June 14, 2014, Dhiab filed a reply in support of his

motion for a TRO, together with two exhibits: (1) Dhiabs medical records, and (2) three of the

videotapes disclosed to Dhiab on June 13, 2014. See Dkt. 252 (Notice of Filing). The sealed

motion for a TRO was denied without prejudice after a closed hearing on June 16, 2014, see Dkt.

254, and the motion, reply, and supporting declaration subsequently were unsealed, see Dkts.

6On June 5, 2014, Dhiab also moved for the production of videotapes of forcible cell extractions and

force-feedings on May 29 and 30, 2014. The Court granted the motion over the Governments objection

on June 18, 2014, and ordered the Government to produce these additional videotapes by July 3, 2014.

SeeDkt. 258.



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255, 255-1, 259.7 Dhiabs medical records likewise were unsealed in redacted form. See Dkt.

259 at 21-40. However, the videotapes filed with the Court remain under seal.

On June 17, 2014, Dhiabs counsel filed a classified motion seeking permission to file 13

additional videotapes with the Court, in further support of his preliminary injunction motion. See

Dkt. 257. The next day, during a court conference, Dhiab orally supplemented his motion, now

seeking permission to file all 28 videos produced by the Government. See Dkt. 260. The

Government has consented to the filing with the Court of all 28 videos it has or will produce to

petitioner. See id. On June 20, 2014, the Court granted Dhiabs request to enter the videotapes

into the Court record. See Dkt. 262.

However, because the Government has designated the videotapes provided to Dhiabs

counsel as classified at the Secret level, the videotape evidence filed by Dhiab has all been

filed under seal pursuant to the terms of the standing protective order that governs all

Guantanamo habeas proceedings. See Dkt. 57, 47. As required by the protective order, the

public docket sheet in this case contains only a Notice of Filing of classified documents as

exhibits to Dhiabs reply in support of his TRO and as evidence in support of his motion for an

injunction. See Dkts. 252, 257. Thus, the videotape evidence upon which the Court decided the

TRO application and will decide Dhiabs motion for preliminary injunctive relief is currently

under seal in the court file and not available for public inspection.

D. Previous Press Intervention in This LitigationThis is not the first time that members of the press have sought access to the records of

this proceeding. In 2009, the Associated Press, TheNew York Times, and USA TODAY (the

7The motion requested a TRO requiring the Government to permit Mr. Dhiab to use a wheelchair and

mandating the continued videotaping of all forcible cell extractions and force-feedings. See Dkt. 255.

While Dhiabs papers have been unsealed, the Governments response remains inaccessible.



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Press Intervenors) sought to intervene for the limited purpose of enforcing the publics right of

access to court records and opposing a motion by the Government to designate all information in

its factual returns as protected from public disclosure under the omnibus Protective Order. See

In re Guantanamo Bay Detainee Lit., 624 F. Supp. 2d 27, 30 (D.D.C. 2009) (Detainee Lit.).8

Then-Chief Judge Hogan granted both the intervention motion, id.at 31, and Press Intervenors

substantive request for relief, id.at 38, 39.

Judge Hogan first concluded that the Press Intervenors had standing to enforce the public

access right, noting D.C. Circuit law permit[ting] third parties to permissively intervene for the

limited purpose of seeking access to materials that have been shielded from public view either by

seal or by protective order. Id.at 31 (internal quotation marks omitted). The court then held

that both the First Amendment and common law access rights apply to the judicial records of

habeas proceedings, noting the consensus of the Circuits . . . that there has been a history of

public access to civil proceedings, id.at 36, and recognizing the significant positive role

public access plays in habeas proceedings, id.at 36-37. Allowing the Press Intervenors to

enforce these rights, the court rejected the Governments attempt[] to broadly designate

unclassified information as protected and subject to sealing. Id.at 31. Judge Hogan stressed

the critical importance and relevance of the habeas proceedings to the public, and concluded

that the Government had failed to satisfy its heavy burden to overcome the public access right.

Id.at 37. See also id.(publicly disclosing records from this proceeding would enlighten the

citizenry and improve perceptions of the proceedings fairness).

The Press Intervenors in that earlier proceeding did not challenge provisions of the

Protective Order that allow classified information submitted to the court to be sealed in the first

8The protective order permits certain narrow categories of unclassified material to be sealed without a

case-by-case demonstration of need. See Dkt. 57 49(a)-(b).



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instance, objecting then only to the Governments request to seal all unclassified material. See

id.at 30-31. While Judge Hogan thus did not at that time choose[] . . . to question, generally,

government determinations that providing classified information to the public would cause

serious damage to national security, id.at 37, neither did he foreclose such close scrutiny of the

Governments classification decisions at a later date.

E. Relief RequestedPress Applicants seek to unseal all videotape evidence submitted into the record of this

proceeding. See Dkt. 244 at 3.9 While the Executive has the sole discretion to classify

information in its possession, only the judiciary has the authority to seal or unseal a judicial

record. See Detainee Lit.at 31-32 (quotingBismullah v. Gates, 501 F.3d178, 188 (D.C. Cir.

2007)). The continued sealing of the videotape evidence submitted by Dhiab violates the

publics constitutional and common law rights to inspect and copy court records, as will now be

demonstrated.

ARGUMENT

I.

PRESS APPLICANTS SHOULD BE PERMITTED TO

INTERVENE TO ENFORCE THE RIGHT OF PUBLIC ACCESS

As was recognized earlier in this case, members of the news media have standing to

enforce the right of public access to judicial records, and a right to be heard on their sealing. See

Detainee Lit.at 31. See also, e.g.,In re Application of the N.Y. Times Co. for Access to Certain

Sealed Court Records, 585 F. Supp. 2d 83, 87, 93-94 (D.D.C. Nov. 17, 2008) (granting

newspapers motion to unseal search warrant materials); Shingara v. Skiles, 420 F.3d 301, 305

9Press Applicants seek access not only to the videotapes that have been offered to date by Dhiab in

support of his requests for injunctive relief, but also to any additional tapes that are made part of the

record of these proceedings.



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(3d Cir. 2005) (granting newspapers motion to vacate protective order so that it can report the

news). Indeed, the Supreme Court repeatedly has held that representatives of the press and

general public must be given an opportunity to be heard on the question of their exclusion from

judicial proceedings. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982)

(internal quotation marks and citations omitted); see also In re Knight Publg Co., 743 F.2d 231,

234 (4th Cir. 1984) (same). This right to be heard undeniably extends to the sealing of court

records. See Wash. Post Co. v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (Robinson) (to

safeguard First Amendment access right, court must promptly allow interested persons the

opportunity to be heard on a motion to seal).

Intervention is the appropriate procedural vehicle for news organizations to vindicate the

public access rights. As the Court of Appeals has observed, every circuit court that has

considered the question has come to the conclusion that nonparties may permissively intervene

for the purpose of challenging confidentiality orders. EEOC v. Natl Childrens Ctr., Inc., 146

F.3d 1042, 1045-46 (D.C. Cir. 1998); see alsoIn re Application of Newsday, Inc., 895 F.2d 74,

75, 79 (2d Cir. 1990);In re Wash. Post Co., 807 F.2d 383, 388 & n.4 (4th Cir. 1986).

Intervention is particularly appropriate here. The level of public interest in and concern

with the substantial issues regarding national security and administration of justice presented by

this case cannot be overstated. There is significant ongoing public controversy over the

Governments handling of the Guantanamo detainees involved in the long-running hunger

strikethe very issue to which the videotape evidence relates and the basis for Dhiabs motion

for an injunction. Without access to this evidence, the public cannot evaluate the credibility of

the allegations made against the Government, assess the fairness of the treatment of the



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Guantanamo detainees by the Executive and by the Court, or exercise democratic control over

the institutions of government.

Press Applicants accordingly should be permitted to intervene for the limited purpose of

enforcing the right of public access to the videotape evidence submitted in this proceeding.

II.

THE GOVERNMENT MUST SATISFY A HEAVY BURDEN

TO DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE

A. The Press and Public Have a Qualified RightTo Inspect and Copy the Videotape Evidence

InNixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978), the Supreme Court

recognized a common law right to inspect and copy . . . judicial records and documents. See

also In re NBC, 653 F.2d 609, 612 (D.C. Cir. 1981) (same). Subsequently, inRichmond

Newspapers Inc. v. Virginia, 448 U.S. 555 (1980), the Court held that the express guarantees of

free speech, freedom of the press and the right to petition the government enshrined in the First

Amendment carry with them an implicit right of public access to certain government

information. It is now well settled that [t]he first amendment guarantees the press and the

public a general right to court proceedings and court documents unless there are compelling

reasons demonstrating why it cannot be observed. Robinson, 935 F.2d at 287.10 It is also well

settled that the First Amendment and common law access rights apply to the proceedings and

10See, e.g., Press-Enterprise v. Super. Ct., 478 U.S. 1, 13-14 (1986) (Press-Enterprise II) (recognizing

constitutional right of access to pretrial hearings);Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006)

(recognizing constitutional and common law right of access to motion papers and supporting

documentary evidence);N.Y. Civil Liberties Union v. NYC Trans. Auth., 684 F.3d 286, 298 (2d Cir. 2012)

(noting nearly universal recognition of right of access to evidence).



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records of habeas cases,11and it is law of this case that these access rights extend to the records

of this habeas proceeding. Detainee Lit., 624 F. Supp. at 38-39.

The public access rights unquestionably attach to video recordings that are introduced as

exhibits or otherwise become part of the record of a court proceeding, such as the videotape

evidence now at issue.12 The right to access this evidence includes not only the right to inspect,

but also the right to copy evidence that is in a form that can be copied without any significant

risk of impairing the integrity of the evidence. Application of NBC, 635 F.2d 945, 952 (2d Cir.

1980).13 And this right to inspect and copy is a right of contemporaneous access to evidence. As

held inIn re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1334 n.7 (D.C. Cir.

1985), the right attaches no later than the time the material in question is accepted into evidence

at trial.14 See Lugosch v. Pyramid Co., 435 F.3d 110, 125 (2d Cir. 2006).

11E.g., Osband v. Ayers, 2007 WL 3096113, at *1 (E.D. Cal. Oct. 22, 2007) (constitutional right);

Ramirez v. Attorney Gen. of the State of N.Y., 1999 WL 1059966, at *4 (S.D.N.Y. Nov. 22, 1999) (same);

Ashworth v. Bagley, 351 F. Sup. 2d 786, 792 (S.D. Ohio 2005) (common law right); see alsoNewman v.Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (constitutional access right extends to proceedings which

pertain to the release or incarceration of prisoners and the conditions of their confinement).

12See, 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);United States v. Graham, 257 F.3d 143, 153-54

(2d Cir. 2001) (videotape relied upon by court subject to 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).

13See also, e.g.,In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (recognizing right to copy videotape material

admitted into evidence);United States v. Guzzino, 766 F.2d 302, 303-04 (7th Cir. 1985) (reversing as

abuse of discretion trial judges refusal to permit media to copy audiotapes admitted in evidence);Criden,648 F.2d at 829-30 (same for videotapes admitted into evidence).

14See also United States v. Myers, 635 F.2d 942, 945 (2d Cir. 1980) (permitting media to copyvideotape evidence on a daily basis during trial); Valley Broad. Co. v. U.S. Dist. Ct., 798 F.2d 1289,

1297 (9th Cir. 1986) (same); United States v. Abegg, 21 Media L. Rep. (BNA) 1442, 1444 (S.D. Fla.1993) (ordering parties to make copies of videotape available to the public when admitted into

evidence); United States v. Torres, 602 F. Supp. 1458, 1460 (N.D. Ill. 1985) (same); United States v.Mouzin, 559 F. Supp. 463, 464 (C.D. Cal. 1983) (same).



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Both the constitutional and common law access rights exist to ensure that courts have a

measure of accountability and to promote confidence in the administration of justicegoals

that cannot be accomplished without access to testimony and documents that are used in the

performance of Article III functions. United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.

1995). The access rights promote an informed and enlightened public opinion, United States

v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976), revd,Nixon v. Warner Commcns, 435 U.S.

589 (1978), which is the most potent of all restraints upon misgovernment, Grosjean v. Am.

Press Co., 297 U.S. 233, 250 (1936). Closed proceedings and records, in contrast, inhibit the

crucial prophylactic aspects of the administration of justice and lead to distrust of the judicial

system if, for example, the outcome is unexpected and the reasons for it are hidden from public

view. Richmond Newspapers, 448 U.S. at 571. See Press Enterprise Co. v. Super. Ct., 464 U.S.

501, 508 (1984) (Press-Enterprise I) (openness enhances both the basic fairness of the

criminal trial and the appearance of fairness so essential to public confidence in the system).

These objectives apply with special force to this proceeding that addresses the propriety

of the Governments use of force-feedingsa tactic that has been widely condemned, including

by former military doctors. See, e.g.,Dkts. 175-2 (Declaration of Steven H. Miles, MD); 175-3

(Declaration of Stephen N. Xenakis, MD); 203-6 (Second Declaration of Stephen N. Xenakis,

MD). Norm-setting institutions around the world, including the American Medical Association

and the World Medical Association, have made clear that force-feeding a competent hunger

striker is always unethical.

15

15Institute on Medicine as a Profession, Ethics Abandoned: Medical Professionalism and Detainee Abuse

in the War on Terrorxxv (2013), available at http://www.imapny.org/wp-

content/themes/imapny/File%20Library/Documents/IMAP-EthicsTextFinal2.pdf. See alsoJ. Lazarus Ltr.To Hon. Chuck Hagel, dated Apr. 25, 2013, available athttp://www.jhsph.edu/research/centers-and-

institutes/center-for-public-health-and-human-rights/_pdf/AMA%20Hunger%20Strikes%20Letter.pdf



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The public has a compelling interest in knowing whether the Government is violating

international law or constitutional rights through its forced-feedings as petitioner contends. In

such matters undertaken in the name of national security, the press and the public serve as

perhaps the only check on abusive government practices. Detroit Free Press v. Ashcroft, 303

F.3d 681, 704 (6th Cir. 2002).

B. The Government Bears a Heavy Burden to AbridgeThe Public Right of Access to the Videotape Evidence

The Supreme Court has mandated a strict test for the closure of judicial proceedings or

records where the constitutional access right applies. While different formulations have been

used by various courts to define the showing that must be made, the standard applied by the

Supreme Court to overcome the constitutional right encompasses four distinct factors:

1. There must be asubstantialprobabilityof prejudice to a compelling

interest. Anyone seeking to restrict the access right must demonstrate a substantial

probability that openness will cause harm to a compelling governmental interest. See,e.g.,Richmond Newspapers, 448 U.S. at 581; Press-Enterprise I, 464 U.S. at 510; Press-

Enterprise II, 478 U.S. at 13-14;Robinson, 935 F.2d at 287. In Press-Enterprise I, the

Supreme Court stressed that a denial of access is permissible only when essential topreserve higher values. 464 U.S. at 510. In Press-Enterprise IIit specifically held that

a reasonable likelihood standard is not sufficiently protective of the access right, and

directed that a substantial probability standard must be applied. 478 U.S. at 14-15.

2. There must be no alternative to adequately protect the threatened

interest. Anyone seeking to defeat access must further demonstrate that there is nothing

short of a limitation on access that can adequately protect the threatened interest. As the

Second Circuit has explained, a trial judge must consider alternatives and reach areasoned conclusion that closure is a preferable course to follow to safeguard the interests

at issue. In re The Herald Co., 734 F.2d 93, 100 (2d Cir. 1982). See also, e.g.,Press-

Enterprise II, 478 U.S. at 13-14.

3. Any restriction on access must be narrowly tailored. The SupremeCourt has long recognized that even legitimate and substantial governmental interestscannot be pursued by means that broadly stifle fundamental personal liberties, when the

end can be more narrowly achieved. Shelton v. Tucker, 364 U.S. 479, 488 (1960).

(indicating the American Medical Associations opposition to force feeding any detainee who is

competent to decide whether he wishes to eat).



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Thus, where no adequate alternative to closure or sealing exists, any limitation imposed

on public access must be no broader than necessary to protect the threatened interest.See, e.g.,Press-Enterprise II, 478 U.S. at 13-14;Robinson, 935 F.2d at 287;Lugosch,

435 F.3d at 124.

4. Any restriction on access that is imposed must be effective. Any orderlimiting access must be effective in protecting the threatened interest for which the

limitation is imposed. As articulated in Press-Enterprise II, 478 U.S. at 14, the partyseeking secrecy must demonstrate that closure would prevent the harm sought to be

avoided. SeeIn re The Herald Co., 734 F.2d at 101 (closure order cannot stand if the

information sought to be kept confidential has already been given sufficient publicexposure);Associated Press v. U.S. Dist. Ct., 705 F.2d 1143, 1146 (9th Cir. 1983) (must

be a substantial probability that closure will be effective in protecting against the

perceived harm (citation omitted)).

When a party seeks to restrict the right of access, it is the duty of the court to make

factual findings demonstrating that these standards have been met. See, e.g.,In re Wash. Post

Co., 807 F.2d at 392 (requiring court to make specific factual findings before sealing

documents or a courtroom); Phoenix Newspapers, Inc. v. U.S. Dist. Ct. for the Dist. of Ariz., 156

F.3d 940, 949 (9th Cir. 1998) (same). The basis for closure must be explained in specific, on the

record, findings with sufficient detail to be reviewed on appeal. See Press-EnterpriseII, 478

U.S. at 13-14;In re The Herald Co., 734 F.2d at 100;Associated Press, 705 F.2d at 1147.

C. The Same Strict Standards Apply When the GovernmentSeeks to Seal Records In the Interest of National Security

As an element of the supreme law of the land, the constitutional access right necessarily

supersedes any contrary law, rule or regulation, including Executive Order 13526 under which

Executive Branch officers designate information as classified. E.g.,In re N.Y. Times, 828 F.2d

110, 115 (2d Cir. 1987) (obviously, a statute cannot override a constitutional right). Where a

judicial record is subject to the constitutional access right, the Government must still demonstrate

a proper basis for sealing the record and abridging the access right, and the Court must make

findings showing that the constitutional standards have been met.



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Of course, national security can constitute a compelling interest sufficient to require the

sealing of judicial records, but an independent judicial assessment remains critically important.

As Justice Black cautioned in the Pentagon Papers case:

The word security is a broad, vague generality whose contours should

not be invoked to abrogate the fundamental law embodied in the First

Amendment. The guarding of military and diplomatic secrets at theexpense of informed representative government provides no real security

for our Republic.

N.Y. Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black, J., concurring). Accord Union

Oil Co. v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (disputes about claims of national security

are litigated in the open.);United States v. Progressive, Inc.

, 467 F. Supp. 990, 995 (W.D. Wis.

1979) (scrutinizing basis for government claim that publication of a magazine article would

increase thermonuclear proliferation and irreparably impair the national security).

In deciding whether a judicial record may be sealed from public inspectioneven a

record the Executive Branch has classifiedthe Court must make its owndetermination that the

Government has satisfied the constitutional standard. Otherwise, an uncritical deference to

vague, poorly explained arguments for withholding broad categories of information can

quickly eviscerate the principles of openness in government. Ctr. for Natl Sec. Studies v. U.S.

Dept of Justice, 331 F.3d 918, 937 (D.C. Cir. 2003) (Tatel, J., dissenting). As Judge Hogan

underscored earlier in this case, it is the court, not the Government, that has the discretion to

seal a judicial record. Detainee Lit., 624 F. Supp. 2d at 31 (quotation marks and citation

omitted). Accord N.Y. Times, 403 U.S. at 714(refusing to grant a prior restraint against

publication of classified information).

Indeed, courts regularly look behind claims that national security justifies secrecy where

First Amendment rights are at stake. In a challenge to the CIAs removal of classified



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information from a book manuscript, for example, the D.C. Circuit articulated a standard to

apply when the need to protect classified information competes with First Amendment rights:

While we believe courts in securing such determinations should defer to

CIA judgment as to the harmful results of publication, they mustnevertheless satisfy themselves from the record, in camera or otherwise,

that the CIA in fact had good reason to classify, and therefore censor, the

materials at issue. . . .

[W]hile the CIAs tasks include the protection of the national securityand the maintenance of the secrecy of sensitive information, the

judiciarys tasks include the protection of individual rights. Considering

that speech concerning public affairs is more than self-expression; it is

the essence of self-government, and that the line between informationthreatening to foreign policy and matters of legitimate public concern is

often very fine, courts must assure themselves that the reasons forclassification are rational and plausible ones.

McGehee v. Casey, 718 F.2d 1137, 1148-50 (D.C. Cir. 1983) (internal marks and citations

omitted). See alsoStillman v. CIA, 319 F.3d 546, 548-49 (D.C. Cir. 2003) (courts have duty to

review classification claim used to censor former CIA employee);Berntsen v. CIA, 618 F. Supp.

2d 27, 29-30 (D.D.C. 2009) (same).

The Court of Military Appeals applied a similar standard in weighing a claimed need to

protect security against a defendants Sixth Amendment public trial right:

Although the actual classification of materials and the policydeterminations involved therein are not normal judicial functions,

immunization from judicial review cannot be countenanced in situations

where strong countervailing constitutional interests exist which meritjudicial protection. Before a trial judge can order the exclusion of the

public on this basis, he must be satisfied from all the evidence and

circumstances that there is a reasonable danger that presentation of these

materials before the public will expose military matters which in the

interest of national security should not be divulged.

United States v. Grunden, 2 M.J. 116, 122 (C.M.A. 1977) (citations omitted). Put differently,

even when the interest sought to be protected is national security, the Government must



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demonstrate a compelling need to exclude the public. United States v. Hershey, 20 M.J. 433,

436 (C.M.A. 1985).

Case law in federal courts under the Classified Information Procedures Act, 18 U.S.C.,

App. 3 (2000) (CIPA), confirms that the fact of classification does not automatically trump the

constitutional access right. CIPA does not purport to override the requirements of the First

Amendment with respect to public access to a criminal prosecutionnor could it. E.g., United

States v. Rosen, 487 F. Supp. 2d 703, 710, 716-17 (E.D. Va. 2007) (a statute cannot defeat a

constitutional right and governments ipse dixit that information is damaging to national

security is not sufficient to close the courtroom doors). As the Fourth Circuit aptly noted in

applying CIPA procedures:

the mere assertion of national security concerns by the Government is

not sufficient reason to close a hearing or deny access to documents.Rather, [courts] must independently determine whether, and to what

extent, the proceedings and documents must be kept under seal.

United States v. Moussaoui, 65 F. Appx 881, 887 (4th Cir. 2003) (unpublished) (citations

omitted). Thus, to seal classified information where CIPA is involved, the government must still

make a sufficient showing that disclosure of the information sought would impair identified

national interests in substantial ways, and the court must conduct an independent review to

determine that closure is narrowly tailored to protect national security. United States v. Aref,

533 F.3d 72, 82-83 (2d Cir. 2008);In re Wash. Post,807 F.2d at 393 (district court not excused

under CIPA from making the appropriate constitutional inquiry); United States v. Poindexter,

732 F. Supp. 165, 167 n.9 (D.D.C. 1990) (CIPA obviously cannot override a constitutional right

of access); United States v. Pelton, 696 F. Supp. 156, 159 (D. Md. 1986) (same).16

16Even in resolving statutoryaccess rights under the Freedom of Information Act (FOIA), courtsrecognize that deference to the governments assertion of a national security concern is not equivalent to

acquiescence, and that government declarations invoking national security must provide a basis for the



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The Fourth Circuit has also forcefully explained the importance of a separate judicial

determination of the need to close a judicial proceeding to protect classified information:

[T]roubled as we are by the risk that disclosure of classified information

could endanger the lives of both Americans and their foreign informants,we are 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 thespectre of a threat to national security may be used to justify a wide

variety of repressive government actions. A blind acceptanceby the

courts of the governments insistence on the need for secrecy, withoutnotice 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.

In re Wash. Post, 807 F.2d at 391-92.

III.

THE GOVERNMENT HAS NOT MET ITS BURDEN TO

DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE

On the public record here, there is no basis to conclude that the Government has satisfied

its burdens to justify continued sealing.

A. Classification at the Secret Level Does Not SatisfyThe Constitutional Standard to Seal a Court Record

The record reflects that the videotape evidence submitted by Dhiab is classified at the

Secret level. See Dkt. 244 at 2, 3. Information can be classified as Secret under Executive

Order 13526 if it reasonably could be expected to cause serious damage to the national

security. Exec. Order 13526, dated Dec. 29, 2009, at 1.2(a)(2)). This classification standard is

a low and broad standard that, alone, does not satisfy the strict standards for closure imposed by

the Supreme Court in Press Enterprise II.

FOIA requester to contest, and the court to decide, the validity of the withholding. Coldiron v. Dept of

Justice, 310 F. Supp. 2d 44, 49 (D.D.C. 2004) (internal quotations omitted). See also, e.g., Goldberg v.

U.S. Dept of State, 818 F.2d 71, 77 (D.C. Cir. 1987) (a district court is required to conduct a de novo

review of the classification decision, with the burden on the agency claiming the exemption);ACLU v.

Dept of State, 878 F. Supp. 2d 215, 223, 224 (D.D.C. 2012) (same).



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In Press Enterprise II, the Supreme Court specifically rejected a reasonable likelihood

of harm standard as insufficiently protective of the publics constitutional access right, holding to

the contrary that the Constitution requires a finding of a substantial probability of harm before

the public access right may be denied. 478 U.S. at 14-15. See, e.g.,In re Wash. Post Co., 807

F.2d at 392-93 (requiring substantial probability of harm to national security to close a

hearing);Robinson, 935 F.2d at 290-92 (requiring substantial probability of harm to defendant

to seal a plea agreement); Oregonian Publg Co. v. Dist. Ct., 920 F.2d 1462, 1466 (9th Cir.

1990) (same); United States v. Antar, 38 F.3d 1348, 1359-60 (3d. Cir. 1994) (requiring

substantial probability of harm to jurors to seal voir dire transcript). If a document is classified

only at the secret level, it bears no indication that the Press Enterprise standard has been met,

or even that the Executive branch itself believes that standard can be met.

Beyond the classification level of the videotape evidence, there are many reasons to

question whether any proper ground exists for denying public access to it. Many studies have

concluded that a great deal of information whose disclosure would be entirely harmless is

nonetheless classified by the governmentindeed, it has been estimated that as much as 50%

of classified information is not properly classified.17

The problem is not new. As a former

Solicitor General once put it:

17See Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing, Hearing Before

the Subcomm. on National Security, Emerging Threats, and International Relations of the Comm. on

Government Reform, 108th Cong. 263 at 82-83 (2004) (statement of J. William Leonard, Director,

Information Security Oversight Office, National Archives and Records Administration). SeealsoPub. L.

111-258, 2, 124 Stat. 2648 (Oct. 7, 2010) codified at 6 U.S.C. 124m & 50 U.S.C. 135d (the

Reducing Over-Classification Act) (congressional finding that the over-classification of information . . .

needlessly limits stakeholder and public access to information.); Senate Report of the Commission on

Protecting and Reducing Government Secrecy, 103rd Cong., 1997, S. Doc. 105-2, at xxi (GPO 1997)

(The classification system . . . is used too often to deny the public an understanding of the policymaking

process, rather than for the necessary protection of intelligence activities and other highly sensitive

matters.), available athttp://www.access.gpo.gov/congress/commissions/secrecy/index.html.



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It quickly becomes apparent to any person who has considerable

experience with classified material that there is massiveoverclassification and that the principal concern of the classifiers is not

with national security, but rather with governmental embarrassment of

one sort or another.

Erwin Griswold, Secrets Not Worth Keeping, Wash. Post,Feb. 15, 1989, at A25.

Furthermore, if the government exceeds its classification authority, for example, by

classifying information to conceal unlawful behavior or prevent embarrassment, the fact of

classification itself does not possibly justify an abridgment of First Amendment rights. See, e.g.,

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 139-140 (1951) (Attorney General

exceeded authority conferred by executive order; injunctive relief granted);ACLU v. Office of

Dir. Natl Intelligence, 2011 WL 5563520, at *5-6, 12 (S.D.N.Y. Nov. 15, 2011) (classification

to conceal violations of law, inefficiency, or administrative error, or to prevent embarrassment

is improper) (internal marks and citations omitted). These concerns underscore the need for an

independent judicial assessment of whether disclosure of the videotape evidence would pose a

sufficient security threat to justify a denial of the publics constitutional rights.

The concerns take on particular importance given the subject matter of the videotape

evidence. The potential to use the classification system to facilitate selective disclosures about

the treatment of the Guantanamo detainees to sway public opinion is very real. The book Hard

Measures, written by the former CIA deputy director responsible for developing and

implementing the controversial program for harsh interrogation of detainees, for example,

provides extensive details about specific CIA interrogation techniqueshow they were used,

when they were used, in what order they were usedand specific facts about the interrogation of

specific Guantanamo detainees.18

These disclosures were made, by the authors admission, to

18See, e.g.,Jose A. Rodriguez, Jr., Hard Measures (2012) at 55-57 (detailing the creation of black

sites); 65-70 (detailing interrogation techniques and their order of use); 70 (noting that defendant



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convince the public that the techniques were rarely used, safe and humaneand that [n]o one

enjoyed doing it. Id. at 67, 65-66, 68-69, 70. Authorizing such selective disclosures, while

barring public access to other information concerning the treatment of detainees at Guantanamo,

itself raises significant First Amendment concerns.

The First Amendment requires the Government to demonstrate to this Court that a

compelling need demands the videotape evidence to be kept from the public, and nothing on the

public record indicates the Government has met its burden.

B. No Proper Basis Exists to Seal InformationThat is Largely Known to the Public

The public record actually indicates that no proper purpose is served by sealing the

videotape evidence. No credible risk to national security arises from the public disclosure in a

judicial proceeding of information that is already known, whether classified or not.

The circumstances of the treatment of the Guantanamo detainees have been the subject of

significant attention worldwide and raise issues of profound public interest. Moreover, the

details of the procedures used to extract detainees from their cells and to forcibly feed them

enterally are widely known and have been published both in filings in these proceedings and in

media throughout the world.

For example, Guantanamo detainee Mohammed Rabbani, who, like Mr. Dhiab, has

participated in the hunger strike and has been forcibly extracted from his cell and fed

nasogastrically, has described in detail in court filings the steps of the forcible cell extraction

(FCE) and enteral feeding procedures, including the set-up of the room in which the strikers

are force-fed, the methods used to restrain each detainee in a restraint chair, the practices for

Muhammad counted the seconds off with the fingers of his hand while being waterboarded); 88-96

(detailing the interrogation of defendant Muhammad).



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inserting the feeding tube through each detainees nose and extending it into his stomach, the

unnecessarily large size of the tubes used, the speed with which the food is pumped into each

detainees stomach, and the negative consequences of these high-speed force-feedings, including

vomiting and spontaneous and uncontrollable defecation during the force-feeding. See Dkt. 203-

3 (Declaration of Clive A. Stafford Smith on behalf of Mohammed Ahmad Ghulam Rabbani)

16-57. See also Dkt. 175-1 (Declaration of Cori Crider on behalf of Ahmed Belbacha, Shaker

Aamer, Abu Wael (Jihad) Dhiab, and Nabil Hadjarab) at 16 73 (quoting Mr. Dhiab as stating

that during the feedings, he is forced into a chair, strapped and shackled uncomfortably tightly,

and that six riot force members hold down his head, throat, neck, hands, and legs with severe

pressure).

Graphic descriptions of cell extractions and force-feedings have also been widely

published outside the context of these proceedings. One Guantanamo detainee has published a

column describing a force-feeding routine involving (among other things) the guards restraining

me to the chair with my arms cuffed behind my back. The chest strap is then tightened, trapping

my arms between my torso and the chairs backrest. This is done despite the fact that the torture

chair features built-in arm restraints. It is extremely painful to remain in this position. Moath

Al-Alwi,My Life at Guantanamo, Al-Jazeera, July 7, 2013, available at

http://www.aljazeera.com/indepth/opinion/2013/07/201373145723725101.html.

In addition, the publication of the leaked March 5, 2013 Standard Operating Procedure

for the Medical Management of Detainees on Hunger Strike in May 2013 further removed any

perceived mystery surrounding the techniques used to force-feed detainees at Guantanamo. See

Jason Leopold,Revised Guantanamo force-feed policy exposed, Al-Jazeera, May 13, 2013,

available at http://www.aljazeera.com/humanrights/2013/05/201358152317954140.html. The



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30-page document (the SOP), which is itself part of the record in this case, see Dkt. 203-7, sets

forth in deliberate detail the medical procedures that are indicated to preserve health and life of a

hunger-striking detainee, and which shall be implemented without consent from the detainee, id.at

2; see also Dkt. 203-1 at 13-17 (describing procedures set forth in March 2013 SOP).19 Needless to

say, these medical procedures include force-feeding nasogastrically while under restraint.

The procedures set forth in the SOP have been published not only in print, but also on video,

most notably in a widely reported short documentary in which Yasiin Bey, the rapper and actor

formerly known as Mos Def, consented to be restrained and force-fed using the procedures set forth

in the March 2013 SOP.20 See, e.g., Emily Greenhouse,Mos Defs Act of Protest, New Yorker, July

9, 2013, available at http://www.newyorker.com/online/blogs/culture/2013/07/mos-def-guantanamo-

forcefeeding-video-protest.html. While the result does not capture the force used to take detainees

from their cells in anticipation of forced nasogastric feeding, it does unflinchingly reflect the enteral-

feeding process and the extreme pain it can cause.

In assessing whether the publics right to inspect the videotape evidence documenting the

Governments use of these procedures, Press Applicants respectfully submit that the Court

should take notice of the extent to which the substance of the classified information is already

publicly known. The presence on the videotape of information that remains classified but

19As described in a previous filing in this case, see Dkt. 203-2 at 1 2-4, Dkt. 203-1 at 16, the SOP

apparently was revised by protocols dated November 14, 2013, and December 16, 2013. Unredacted

copies of these documents have not been made publicly available, but Dhiabs counsel has indicated in

public court filings that neither addresses the use of the restraint chair. See Dkt. 203-1 at 16; see also

Dkts. 203-8 (redacted version of the December 2013 revised protocol); Dkt. 203-2 (describing

communications with Government regarding revised protocols and their protected status). The

Government has represented that there is a new, separate protocol setting forth guidelines for use of the

restraint chair, but it has not been provided to petitioners counsel, or (in redacted form) to the public. On

June 19, 2014, Dhiab moved to compel the Government to produce these protocols. See Dkt. 261.

20See http://thelede.blogs.nytimes.com/2013/07/10/mos-def-video-puts-force-feeding-in-spotlight/;

http://www.reuters.com/article/2013/07/26/us-usa-guantanamo-rapper-idUSBRE96P11H20130726; and

http://www.washingtonpost.com/blogs/reliable-source/wp/2013/07/08/mos-def-aka-yasiin-bey-

undergoes-force-feeding-to-protest-guantanamo-measures/.



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nonetheless already is known publicly cannot constitute the type of compelling need for secrecy

that the Press-Enterprisetest requires. See, e.g.,Robinson, 935 F.2d at 291-92 (disclosure could

not pose additional threat in light of already public information); Grunden, 2 M.J. at 123 n.18

(the public nature of the material [would] establish a separate ground prohibiting exclusion of

the public);In re Charlotte Observer, 882 F.2d 850, 854-55 (4th Cir. 1989) ([w]here closure is

wholly inefficacious to prevent a perceived harm, that alone suffices to make it constitutionally

impermissible).

At a minimum, the information already known to the public renders the complete sealing

of the videotapes in their entirety overbroad. If some information disclosed on the videotape

could properly be withheld from the public, a redacted version should be publicly filed, deleting

only those facts for which disclosure would create a substantial likelihood of harm to national

security or personal safety. Press-Enterprise II, 478 U.S. at 13-14;Robinson, 935 F.2d at 287.

The videotape evidence of the force-feeding procedures used at Guantanamo should be

available for public inspection along with the other material already in the public record that

documents the procedures being used. The public has a substantial interest in evidence documenting

the Governments response to the detainees hunger strike, which is the latest chapter in a long

history of hunger strikes to protest conditions of confinement and to make political statements:

Hunger strikes were first recognized in the United States in the early1900s as prisoners used them to express political views on childstarvation, animal rights, and female suffrage. Internationally, hunger

strikes have been recognized as a form of political speech since 1889when Vera Figner, a social revolutionary in tsarist Russia, protested

against authority methods used by the prison director. The twentiethcentury has also witnessed several famous prison hunger strikesincluding the 1981 Irish Republican Army hunger strike (the second

of such strikes) in which ten prisoners starved to death in an effort toforce the government to recognize political status for Republican

prisoners and the 1993 Haitian hunger strike in the UnitedStates Guantnamo HIV detention camp which successfully



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pressured the Clinton administration to overturn the HIV exclusion

rule.

Amanda Gordon, The Constitutional Choices Afforded to A Prisoner on Hunger Strike:

Guantanamo, 9 Santa Clara J. Intl L. 345, 350-51 (2011) (footnotes omitted).

Force-feeding in response to prisoner hunger strikes dates back at least a century, when

womens suffragist Alice Paul went on a highly publicized hunger strike and was force-fed in

response while incarcerated for her political activities. Paul reportedly feared the force feedings

dreadfully. Janice L. Richter, We Have Waited So Long: The Story of Alice Paul, New Jersey

Lawyer, 171-SEP N.J. Law. 25 (1995). The use of force-feeding in American penal institutions is

sanctioned by the Bureau of Prisons, see 28 C.F.R. 549.65, but remains subject to significant

debate, see Tracey M. Ohm,What They Can Do About It: Prison Administrators Authority to

Force-Feed Hunger-Striking Inmates, 23 Wash. U. J. L. & Poly 151, 158-159 (2007). The

controversial tactic is being stretched to its limits at Guantanamo, where the detainees have been on a

hunger strike stretching on for yearslonger than any other prisoner hunger-strike in documented

history. See George J. Annas,American Vertigo: Dual Use, Prison Physicians, Research, and

Guantanamo, 43 Case W. Res. J. Intl L. 631, 643 (2011).

Particularly given the relevance of the videotape evidence to the ongoing intense debate over

the use of force-feedings, no proper basis exists to withhold from the pubic the videotape evidence

documenting the Governments response to the hunger strike at Guantanamo.



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CONCLUSION

For each and all the forgoing reasons, Press Applicants respectfully submit that this Court

should grant Press Applicants motion to intervene and should order that all videotapes of

forcible cell extractions and force feedings that are entered into the record in this action be

unsealed and made available for public inspection and copying.

Dated: June 20, 2014 Respectfully submitted,


By: /s/ David A. Schulz


321 West 44th Street, Suite 1000

New York, NY 10036

(212) [email protected]

[email protected]


* Pro hac viceapplication forthcoming



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Petitioner/Plaintiff,

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Civ. No. 05-1457 (GK)

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CERTIFICATE OF CORPORATE DISCLOSURE

Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure and Rule 7.1 of the Local

Rules of this Court, Hearst Corporation, Inc., ABC, Inc., The 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 (together, Press Applicants) provide the following

corporate disclosure:

I, the undersigned, counsel of record for the Press Applicants, certify that to the best of

my knowledge and belief, the following is true and correct:

Hearst Corporation, Inc.is one of the nations largest diversified media and

information companies. Its major interests include ownership of 15 daily and 34 weekly

newspapers, including theHouston Chronicle, San Francisco Chronicle, San Antonio Express-

News andAlbany Times Union; and hundreds of magazines around the world, including Good

Housekeeping, Cosmopolitan,ELLEand O, The Oprah Magazine; and 29 television stations,

which reach a combined 18 percent of U.S. viewers; ownership in leading cable networks.

Hearst Corporation is privately held by The Hearst Family Trust and has no other parent. None



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of Hearsts subsidiaries or affiliates is publicly held, with the exception of Fimilac SA (owner of

Fitch Group, Inc.), in which Hearst and/or its subsidiaries own a fifty percent interest.

ABC, Inc., alone or through its subsidiaries, owns and operates, inter alia, ABC News,

abcnews.com, and local broadcast television stations which regularly gather and report news to

the public. Programs produced and disseminated by ABC News include World News with Diane

Sawyer, 20/20,Nightline, Good Morning Americaand This Week. ABC, Inc.s parent

corporation is The Walt Disney Company, a publicly traded corporation.

TheAssociated Press(AP) is a news cooperative organized under the Not-for-Profit

Corporation Law of New York, and owned by its 1,500 U.S. newspaper members. The APs

members and subscribers include the nations newspapers, magazines, broadcasters, cable news

services and Internet content providers. The AP operates from 300 locations in more than 100

countries. On any given day, APs content can reach more than half of the worlds population.

AP has no parents, subsidiaries or affiliates that have any outstanding securities in the hands of

the public.

Bloomberg L.P. operates Bloomberg News, a 24-hour global news service based in New

York with more than 2,400 journalists in more than 150 bureaus around the world. Bloomberg

supplies real-time business, financial, and legal news to the more than 319,000 subscribers to the

Bloomberg Professional service world-wide and is syndicated to more than 1000 media outlets

across more than 60 countries. Bloomberg television is available in more than 340 million

homes worldwide and Bloomberg radio is syndicated to 200 radio affiliates nationally. In

addition, Bloomberg publishes Bloomberg Businessweek, Bloomberg Markets and Bloomberg

Pursuits magazines with a combined circulation of 1.4 million readers and Bloomberg.com and

Businessweek.com receive more than 24 million visitors each month. In total, Bloomberg



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distributes news, information, and commentary to millions of readers and listeners each day, and

has published more than one hundred million stories. Bloomberg L.P.s parent corporation is

Bloomberg Inc., which is privately held.

CBS Broadcasting, Inc.produces and broadcasts news, public affairs, and entertainmentprogramming. Its CBS News Division produces morning, evening, and weekend news

programming, as well as news and public affairs newsmagazine shows such as 60 MINUTES

and 48 HOURS INVESTIGATES. CBS Broadcasting also directly owns and operates television

stations nationwide, including WCBS-TV in New York. CBS Broadcasting Inc. is a wholly-

owned subsidiary of CBS Corporation, which is a publicly-traded

guantanamo force feeding tapes motion

Documents

press applicants intervention

associated press

una document

new york times company

mcclatchy company

petitioner dhiab

xabi wael jihad dhiab

dhiab consents