Dhiab v. Obama
| Decision Date | 03 October 2014 |
| Docket Number | Civil Action No. 05–1457 GK |
| Citation | 70 F.Supp.3d 486 |
| Court | U.S. District Court — District of Columbia |
| Parties | Abu Wa'el (Jihad) Dhiab, Petitioner, v. Barack H. Obama, et al. Respondents. |
Alka Pradhan, Elizabeth L. Marvin, Eric Leslie Lewis, Lewis Baach PLLC, Washington, DC, Clive A. Staffordsmith, Cori Crider, Ahmed Ghappour, Tara L. Murray, Reprieve, London, UK, Jon B. Eisenberg, Oakland, CA, Lisa Jaskol, Los Angeles, CA, Shayana Devendra Kadidal, New York, NY, for Petitioner.
Scott Michael Marconda, Terry Marcus Henry, Alexander Kenneth Haas, Andrew I. Warden, August Edward Flentje, David Hugh White, James J. Schwartz, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, Timothy Burke Walthall, U.S. Department of Justice, Washington, DC, for Barack H. Obama, Donald Rumsfeld, Jay Hood and Brice Gyurisko.
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 (“Press Applicants” or “Intervenors”) seek to intervene and to unseal twenty-eight videotapes that have been entered into the record of the above captioned matter.
Before filing their Motion to Intervene and to Unseal Videotape Evidence, Intervenors conferred with counsel for Petitioner Abu Wa'el (Jihad) Dhiab (“Petitioner” or “Dhiab”) and with the Government (“the Government” or “Respondents”). Petitioner consents to the intervention and does not oppose unsealing the videotapes. Intervenors' Mot. at 1 [Dkt. No. 263]. The Government does not object to Press Applicants' Motion to Intervene, but the Government opposes unsealing the videotapes. Intervenors' Mot. at 1; Resp'ts' Opp'n at 2.
Upon consideration of Intervenors' Motion to Intervene and to Unseal Videotape Evidence, Respondents' Opposition to Press Applicants' Motion to Unseal Videotape Evidence, Intervenors' Reply, and the entire record herein, and for the reasons stated below, Intervenors' Motion to Intervene is hereby granted and Intervenors' Motion to Unseal is hereby granted, with modifications.
Wa'el (Jihad) Dhiab, a citizen of Syria, has been held by the United States Government in a detention facility at the United States Naval Base in Guantánamo Bay, Cuba since as early as 2002.1 [Dkt. No. 1]. In 2009, the Guantánamo Review Task Force cleared Mr. Dhiab for release from his ongoing detention at Guantánamo Bay. [Dkt. No. 175]. To this day, he remains imprisoned there. In protest of his indefinite detention, Mr. Dhiab has been on a long-term hunger strike. [Dkt. No. 175].
On April 9, 2013, the Government notified Mr. Dhiab's counsel that, in response to his on-going hunger strike, it had begun to feed Mr. Dhiab nasogastrically against his will. [Dkt. No. 175]. Mr. Dhiab continues to undergo enteral feeding when the Government deems it necessary. Alka Pradhan Decl. at ¶ 6 [Dkt. No. 256].
The Government has explained that when prisoners fail to follow instructions, resist guards (or “demonstrate the intent to resist”), cause a disturbance, or endanger themselves or anyone else, they are removed from their cells and taken to the medical facilities where enteral feeding takes place. Col. Bogdan Decl. at ¶ 7 [Dkt. No. 288]. The military officials in charge of the Guantánamo Bay facility sometimes employ a method called Forced Cell Extraction (“FCE”) in order to accomplish the feeding. The FCE procedures practiced at the Guantánamo Bay facility are modeled on those used by military corrections facilities and the Federal Bureau of Prisons. Col. Bogdan Decl. at ¶¶ 4, 5.
In May of 2014, the Government disclosed that it possessed videotapes of Mr. Dhiab's forced-feedings and forcible cell extractions. [Dkt. No. 217]. Mr. Dhiab has left no doubt that he wants these videotapes to be made public. Intervenors' Mot. at 1 [Dkt. No. 263]; Cortney Busch Decl. at ¶¶ 5–7 [Dkt. No. 287] ).
On July 22, 2005, Mr. Dhiab filed his Petition for a Writ of Habeas Corpus, asserting that his indefinite detention by the United States Government violated the U.S. Constitution, the Alien Tort Statute, 28 U.S.C. § 1350, and international law. [Dkt. No. 1]. His Petition further alleged that the conditions of his confinement violated the Fifth Amendment to the United States Constitution. [Dkt. No. 1].
On July 30, 2013, Mr. Dhiab and several other hunger-striking detainees submitted a motion to enjoin the Government from continuing to enterally feeding them. [Dkt. No. 175]. This Court denied the Motion for a Preliminary Injunction for lack of subject matter jurisdiction. [Dkt. No. 183].
On February 11, 2014, our Court of Appeals held that this Court does have subject matter jurisdiction to hear Guantánamo Bay detainees' challenges to the conditions of their confinement.See Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.Cir.2014).
Accordingly, on April 18, 2014, Mr. Dhiab again filed a Motion for a Preliminary Injunction, requesting that the Court enjoin the Government from enterally feeding him and from forcibly extracting him from his cell. [Dkt. No. 203]. After Petitioner renewed his Motion, the Government disclosed that it possessed videotapes of Mr. Dhiab's forced-feedings and FCEs. [Dkt. No. 217].
On May 13, 2014, Petitioner filed an Emergency Motion for an order compelling the Government to preserve videotapes of Mr. Dhiab's forced-feedings and forcible cell extractions and to produce those videotapes to Petitioner's counsel. [Dkt. No. 217]. On May 23, 2014, the Court granted Petitioner's Motion in part, and directed the Government to produce to Petitioner's counsel “all videotapes made between April 9, 2013 and February 19, 2014, that record both [Mr. Dhiab's] Forcible Cell Extractions and subsequent enteral feeding.” [Dkt. No. 225]. The Government complied with that Order, and later provided additional videotapes to Petitioner's counsel. [Dkt No. 250].
In a series of filings beginning June 14, 2014, Petitioner placed 28 videotapes in the judicial record for this case. [Dkt. Nos. 252, 262, 267]. The Government produced four additional videotapes to Petitioner and asserts that “they are substantially the same as the [other] 28 videos.” Resp'ts' Opp'n at 4 n.3.
The videotapes have been classified at the “secret” level, RDML Butler Decl. at ¶ 7, based on the Government's belief that the contents of these twenty-eight videotapes “could reasonably be expected to cause serious damage to national security if disclosed[,]” Id. at ¶ 5. Thus, in accordance with the Court's standing protective order applicable to all Guantánamo Bay detainee habeas proceedings, the videotapes have been placed on the Court's docket under seal. [Dkt. No. 57 ¶ 47] (requiring all documents containing classified information to be filed under seal).
On June 20, 2014, Intervenors filed their Motion to Unseal Videotape Evidence filed in this proceeding's record. Intervenors' Mot. at 8. Members of the news media may properly intervene for the purpose of seeking to unseal judicial records. See In re Guantánamo Bay Detainee Lit., 624 F.Supp.2d 27, 31 (D.D.C.2009) (“Detainee Lit. I ”); See also Wash. Post Co. v. Robinson, 935 F.2d 282, 289–90 (D.C.Cir.1991). Neither the Government nor Petitioner oppose Press Applicants' Motion to Intervene. Resp'ts' Opp'n at 2 n.1. Therefore, Intervenors' Motion shall be granted.
The First Amendment's express guarantees of free speech, freedom of the press, and the right to petition the government carry with them an implicit right of public access to particular government information. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 575–76, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Our Court of Appeals has held that “[t]he first amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed.” Washington Post v. Robinson, 935 F.2d 282, 287 (D.C.Cir.1991) (emphasis added).
As Judge Hogan explained in Detainee Lit. I, 624 F.Supp.2d at 35, in order to determine whether a particular proceeding and related judicial records are subject to the public's right of access, courts apply a two-part test, commonly referred to as the test of “experience and logic,” Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press–Enterprise II ”). The first prong of that test asks whether there is a history of access to the proceeding. Press–Enterprise II, 478 U.S. at 8–9, 106 S.Ct. 2735. The second prong considers whether public access “plays a significant positive role in the functioning of the particular process in question.” Id. Failure at either stage of the test is fatal to a First Amendment public access claim. See United States v. El–Sayegh, 131 F.3d 158, 161 (D.C.Cir.1997).2
The public's right of access, once established, is a qualified one. Limits on the public's right to access judicial records are appropriate only upon the demonstration of an “overriding interest based on findings that closure is essential to preserve higher values.” Press–Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ( “...
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