Detention: Law of: District Court Development

Judge Kessler’s Videotape Order and the Costs of Crying Wolf

By Jack Goldsmith
Saturday, October 4, 2014, 9:57 AM

The First Amendment question in Judge Kessler’s opinion in support of her Order directing the videotapes of Abu Wa'el Dhiab's forced feedings to be unsealed (see Jane’s summary) is whether the public’s presumptive right of access is outweighed by the government’s well-specified “compelling interest” in keeping the classified tapes sealed.  The Government claims there are five reasons why the release would present a substantial probability of harm to a compelling government interest:

(1) the videos could aid the development of countermeasures to FCEs; (2) depictions of camp infrastructure in the videos could allow detainees or others to disrupt the camp; (3) detainees might respond to release of the videos by deliberately trying to behave in such a way that necessitates greater use of the FCEs; (4) the videos could "inflame Muslim sensitivities overseas" or be used as propaganda; (5) release of the videotapes could subject Mr. Dhiab to "public curiosity" and "could affect the practice of other states in this regard, which would in turn dilute protections afforded U.S. service personnel in ongoing overseas contingency operations and future conflicts.

Judge Kessler gives these contentions the back of her hand.  She argues, mostly persuasively, that the non-disclosure justifications are vague and speculative and are belied by public information about the forced feedings already released by the government.  The context where Kessler is least persuasive, and the context where the government likely cares most, is the use of the videos as a propaganda tool.  Kessler’s main response is that a “Heckler’s veto” cannot justify non-disclosure.  But terrorists, of course, are not mere hecklers.  It might well be (as she says) that “[t]errorists do not need pretexts for their barbarism,” but it strikes me as plausible that the release of these videos will exacerbate their barbarism and their recruitment for barbarous acts against the United States.  (That said, this is a tricky argument for the government to make, since it approaches an admission that the videotapes are in some sense horrific.)

Kessler’s disclosure Order is remarkable because, as she notes, in no prior “case involving Guantanamo Bay detainees has any court ordered disclosure of classified information over the Government's opposition.”  Why the notable lack of deference to the government’s claims of compelling interest about classified information in wartime?

Part of the answer, no doubt, is war-weariness and war-skepticism.  It is unlikely that Kessler would have ignored the propaganda concern and ordered the release of classified information in, say, 2002, or even 2006.

But perhaps a larger component of the answer is weariness is about exaggerated government claims concerning the harms of disclosing classified and other sensitive information.  The government’s propaganda concern may be valid.  But it is interspersed with rationales that seem (to me) unpersuasive and maybe pretextual.  And these dominant unpersuasive rationales come against the background of years of exaggerated claims about the harms of disclosure, many of which were followed by disclosure and no obvious harm.  I am thinking in particular of the disclosures about Anwar al-Awlaki and targeted killing, which we were once told would have a devastating negative impact on national security, but which occurred without any noticeable impact beyond useful public debate about legal standards.  (There may of course be an impact we cannot see, but it is very hard to understand how the release of legal rationales in this context harms national security.)  The al-Awlaki/targeted killing episode is one where judges started pushing back against exaggerated needs for secrecy (notably, in Judge Garland’s opinion in the FOIA litigation).  I see Judge Kessler’s opinion in this vein.

I do not know well the process that leads the USG to decide whether and how to deploy the tools of classified information and national security harm against disclosure.  The intelligence community reflexively dislikes disclosure, and it tends to throw everything into its declarations about the need for secrecy, including a lot of untenable stuff.  The Justice Department is a filter of sorts, but often DOJ (and others in other agencies) cannot (or don’t want to) fight back against official IC representations.  Whatever the process, the perception that the government is crying wolf – always a concern for judges who do not like being told that they are barred from some element of adjudication – appears to be growing and deepening.  As the intelligence community rethinks its posture about the costs and benefits of public disclosure in the post-Snowden era, it might also rethink its strategy and processes for fighting disclosure on national security grounds, in order to ensure that the courts do not ignore USG concerns in a case in which the wolf is actually attacking the sheep.