On Friday, a three-judge panel in the D.C. Court of Appeals rejected a request to release recordings of military personnel in Guantanamo Bay force-feeding a detainee who was on a hunger strike. The detainee in question is Abu Wa’el (Jihad) Dhiab, whose habeas corpus proceedings have previously been covered by Lawfare. Dhiab has since been released to Uruguay, but media organizations continue to press for the public release of the military’s force-feeding recordings. Friday’s ruling came with three separate opinions, each agreeing with the result but offering different takes on the law supporting the panel’s decision. This post will examine the three opinions and consider their implications.
Abu Wa’el (Jihad) Dhiab, a citizen of Syria, was detained at Guantanamo Bay starting at least in 2002. In 2005, Dhiab filed a petition for a writ of habeas corpus challenging his detention. In 2009, the Guantánamo Review Task Force cleared Dhiab for release. Dhiab was not actually released from Guantanamo until December of 2014, and in the interim period he went on a hunger strike to protest his continued indefinite detention. On April 9th, 2013, the government notified Dhiab’s counsel that it had begun force-feeding him through his nose. In May of 2014, the government disclosed that it had recordings of Dhiab being removed from his cell, brought to a medical facility, and fed against his will. The recordings were made in order to help the train military personnel on how to handle detainees in such situations. The recordings are classified as “SECRET,” a designation reserved for information “the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.”
While he was being held, Dhiab filed motions to enjoin his force-feedings. The district court ordered the government to provide Dhiab’s counsel, who had been given security clearance, access to the tapes. Dhiab’s counsel then entered those recordings into the court’s record under seal. Sixteen press organizations intervened in the proceedings and moved for those recordings to be unsealed. Though Dhiab has been released and is no longer a party to this case, he previously made clear that he wanted the tapes released:
I want Americans to see what is going on at the prison today, so they will understand why we are hunger-striking, and why the prison should be closed. If the American people stand for freedom, they should watch these tapes. If they truly believe in human rights, they need to see these tapes.
The district court judge, Gladys Kessler, granted the request to unseal the recordings, but on the condition that there be several redactions and edits. Both sides appealed the decision, with the government contending the recordings should remain sealed and the news organizations arguing the mandated redactions were too broad.
The district court came to its holding by analyzing the public right of access to the recordings under the Supreme Court’s tests established in Press-Enterprise Co. v. Superior Court I and II. Under Press-Enterprise II, the court determines if there is any right to public access using the so-called “experience and logic” test. The first prong (experience) looks to whether or not there is a history of public access to the proceeding. The second prong (logic) looks to whether public access “plays a significant positive role in the functioning of the particular process in question.” If the proceeding fails either part of this test, there is no right of public access. If it does pass both parts, then the right is a qualified one, analyzed under another test, expressed in the Press-Enterprise I. Under that test, the qualified right to public access can only be overridden if it is shown that closure is essential to serving “higher values.”
Senior Circuit Judge A. Raymond Randolph’s opinion for the court argues that “Press-Enterprise II is not comparable to this case.” First, Judge Randolph notes that Press-Enterprise II was a criminal case that arose from California state court. The record “consisted of testimony and exhibits relating to murder charges, not classified material.” Moreover, Judge Randolph sees an important distinction between criminal proceedings and Dhiab’s civil habeas corpus proceeding, pointing out that the Classified Information Procedures Act governs the use of classified information in criminal cases. Under CIPA, the court may look at the admissibility of confidential evidence a defendant wants to use in private. If it is admissible, the government can suggest substitute information, declassify the information in question, or simply dismiss the charges. Judge Randolph notes that none of these procedures are available in a civil proceeding in which the government is the defendant.
Even if Press-Enterprise II were applicable, Judge Randolph disagrees with its application by the district court. Under the “experience” prong, Judge Randolph writes that there exists no history of public access to habeas corpus proceedings comparable to criminal cases. While early English courts were only in session a few months a year, they nonetheless heard habeas petitions out of session, meaning that “between 1500 and 1800, about one-fifth of the writs the judges of England issued” were heard without public access. While Judge Randolph concedes that there might be more open court hearings today, there remain plenty of exceptions (such as CIPA). Further, he points out that specifically in the case of the Guantanamo Bay habeas corpus cases, courts have litigated under orders to protect classified information. Judge Randolph disposes of the second prong of the “experience and logic” test by asserting that logic must be dictated by “first principles,” and that one such principle is that “there is no higher value than the security of the nation.”
Under similar logic, Judge Randolph writes that even had the intervenors succeeded in the establishing a qualified right of public access, such a right not be sufficient to unseal these recordings. The government fears that the recordings, if public, could assist outside militants in training to combat cell-extraction and force-feeding, and has argued that the release of the recordings could serve propaganda purposes and even encourage other detainees to disobey guards in the hopes that more recordings might be made and made public. Judge Randolph writes that, “The district court had no basis for ruling that publicly releasing the recordings could not be expected to cause such harm.”
The other judges’ opinions arrive at the same result, but expose some ambiguity in the law. Judge Judith Rogers disagrees with the strict line drawn by Judge Randolph between civil and criminal trials: While the Supreme Court has never had an on-point ruling on this subject, Chief Justice Burger did note in Richmond Newspapers, Inc. v. Virginia (in which the court ruled for a public right of access to criminal proceedings) that, “whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.” Judge Rogers notes the criminal/civil distinction fails to understand the distinction between the interests of the defendant and the interests of the public at large. In Judge Rogers’ view, “Because the constitutional right of access belongs to third parties, laws governing the relationship between litigating parties are of little consequence to the application of Press-Enterprise II here.”
Judge Rogers also has a different take on the history at work here. Where Judge Randolph argued that the fact that one-fifth of early English habeas proceedings occurred in private meant there was no tradition of public access, Judge Rogers saw the glass as 80 percent full. To her, the evidence suggests a “well-settled expectation that habeas proceedings would be open to the public when the courts were in session.” Judge Rogers also thinks the court ought to view this habeas proceeding at a higher level of generality than Randolph does. In her view, the proceedings should be compared to habeas corpus proceedings generally, which tend to be open to the public, and not specifically to Guantanamo habeas proceedings.
In his separate opinion, Judge Stephen Williams agrees with Judge Rogers that the criminal/civil distinction should not invalidate application of the “experience and logic” test. But in applying that test, Judge Williams seems at a loss in several respects. For example, he writes that it is unclear if the test is distinctly focused on proceedings, or if it can be extended to access to documents or records. He further writes that even if the test does apply to records, it is unclear at what level of generality one should examine the relevant history. The court might focus on the kinds of documents at issue, or, if focused on proceedings, “the likely categories here may range among civil actions generally, habeas actions, habeas actions relating to conditions of confinement, and finally habeas actions related to Guantanamo.” Furthermore, once a court determines which class of proceedings to examine, Judge Williams writes it is not clear what precisely history should carry weight. He points to cases in which the Supreme Court has instructed inquiries to focus on the time at which the First Amendment was adopted, along with other cases that have focused on post-enactment history (such as Press-Enterprise II itself, which discussed the famously packed courtroom that attended the treason trial of Aaron Burr).
Finally, Judge Williams is unsure of how that history should be assessed. For example, does the fact that 20 percent of early English habeas proceedings were private mean that there is no private right of access? Or is a tradition of access suggested by the fact that 80 percent of proceedings were public? To Judge Williams, “Both positions seem reasonably grounded in the Court’s precedents, but obviously both can’t be right.” While Judge Williams laments that, “we have little guidance from the Supreme Court,” the answers to his questions would not have changed his view of the outcome. Judge Williams finds the government’s asserted national security interests compelling enough to override whatever answers the “experience-and-logic” test might yield.
The differing opinions reveal some possible gaps in doctrine, but ultimately the case turned on the weight placed by the panel on the government’s national security interests. Their characterizations are a marked departure from Judge Kessler’s opinion, which viewed concerns about propaganda as a “heckler’s veto,” and went so far as to draw comparisons between the recordings and the public value of the images of mistreatment of Abu Ghraib. For the time being, the government’s national security concerns have been vindicated, and the media outlets may now appeal for an en banc decision or to the Supreme Court.
The judgment and opinions are included in full below.