Dhiab v. Obama
| Decision Date | 27 October 2015 |
| Docket Number | Civil Action No. 05-1457 (GK) |
| Parties | ABU WA'EL (JIHAD) DHIAB, Petitioner, v. BARACK OBAMA, et al., Respondents. |
| Court | U.S. District Court — District of Columbia |
On October 3, 2014, this Court issued a decision to grant, with specified conditions, the Motion of Press-Intervenors to Unseal Videotape Evidence consisting of recent classified videotapes of forcible cell extraction and force feeding of Petitioner Dhiab, who had been detained for more than 12 years at the United States Naval Base in Guantanamo Bay [Dkt. No. 349]. On October 15, 2014, the Government filed a Motion to Stay that ruling, accompanied by two additional declarations in support of the Motion [Dkt. No. 356], only one of which related to harm the Government believed would result from unsealing the tapes. On November 7, 2014, the Court granted the Government's Motion to Stay until midnight December 2, 2014 [Dkt. No. 367]. On November 10, 2014, the Government filed a Notice of Appeal with the Court of Appeals [Dkt. No. 368]. On December 2, 2014, the Government filed with this Court an Emergency Motion to Extend Stay of Orders Unsealing Classified Videotapes Pending Final Resolution of Appeal [Dkt. No. 375], and filed two additional declarations in support of its Emergency Motion. Redacted copies at Dkt. No. 375. On December 3, 2014, this Court granted that Motion [Dkt. No. 378]. On December 5, 2014, the case was transferred to the Court of Appeals as Case No. 14-5299.
On May 29, 2015, the Court of Appeals, in a per curiam Opinion, dismissed the appeal because this Court's Orders were not final orders over which the Court of Appeals had jurisdiction. In addition, it denied the request for a writ of mandamus, and remanded the case back to this Court. In that Opinion, the Court of Appeals noted that the remand would give this Court Dhiab v. Obama, 787 F.3d 563, 567 (D.C. Cir. 2015).1 The Mandate from the Court of Appeals was issued on June 25, 2015 [Dkt. No. 385].
On July 15, 2015, the Government moved for reconsideration of the Court's October 3, 2014 Memorandum Opinion and Order [Dkt. No. 388]. Both Petitioner and Press-Intervenors filed Oppositions [Dkt. Nos. 394, 396], and the Government filed its Reply on August 17, 2015 [Dkt. No. 397].
A. The Government Has Failed to Meet the Standard for Granting a Motion for Reconsideration
While the Government has not clearly identified the provisions of the Federal Rules of Civil Procedure under which it is applying for reconsideration, the Court will assume that it is proceeding under Rule 54(b). See p. 19, n. 4 of Mot. to Reconsider.
The law is clear and well established as to what the basic requirements are that must be satisfied in order to prevail on a motion for reconsideration. They are: "(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law in the first order." In re Guantanamo Detainee Litig., 706 F. Supp. 2d 120, 122-23 (D.D.C. 2010) (emphasis added) (internal quotation marks omitted).
"A motion for reconsideration is not an 'opportunity to reargue facts and theories upon which a court has already ruled,' nor is it 'a vehicle for presenting theories or arguments that could have been advanced earlier.'" Gilmore v. Palestine Interim Self-Government Authority, 8 F. Supp. 3d 1, 6 (D.D.C. 2015) (quoting S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C. 2010)).
In addition, "the Supreme Court has cautioned that a Court should be 'loathe to do so [i.e., granting a motion for reconsideration] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.'" Id. at 6 (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)).
Knowing full well that whatever decision this Court now files will find its way to the Court of Appeals because of the significance and complexity of the issues, and that there is need to obtain final rulings on those issues as soon as possible, the Court has chosen to be as brief and succinct as possible.
1. As to the first requirement for granting a motion for reconsideration, there has been no "intervening change in the law." Nor does the Government argue to the contrary.
2. As to the second requirement for granting a motion for reconsideration, there has been no discovery of new evidence that was "not previously available." The Government has offered no
explanation whatsoever as to why it could not have submitted the post-decision declarations in time for this Court to consider them before its initial ruling.
On June 20, 2014, Press-Intervenors filed their Motion to Unseal [Dkt. No. 263]. On June 23, 2014, the Court ordered any Opposition to that Motion to be filed no later than July 1, 2014. On June 26, 2014, the Court granted an unopposed Motion for Extension of Time to the Government to file its response to the Motion to Unseal by July 18, 2014 [Dkt. No. 272], and Press-Intervenors were given up to and including August 1, 2014, in which to file their Reply. Finally, on July 18, 2014, the Government did file its Opposition to the Motion to Unseal, along with the two unredacted declarations. [Dkt. No. 288].
Thus, after obtaining an extension of time from the Court, the Government received a total of 28 days in which to file its Opposition. In those 28 days, the Government could have filed a Motion for additional time in which to file additional declarations to support its Opposition to the Motion to Unseal. Moreover, when the Government did file its additional declarations, almost three months later, on October 15, 2014, they were in support of its Motion to Stay the Court's decision to grant the Motion to Unseal, not in support of its arguments on the merits.
In short, the Government has proffered no information or justification as to why or how the new evidence it submitted after the Court ruled was "not previously available."
3. As to the third requirement for granting a motion for reconsideration, there has been no "clear error of law" for the following reasons.
information, in this case, the thirty-two videos classified as SECRET depicting Mr. Dhiab being forcibly removed from his cell and forcibly fed against his will.
The simple answer to this argument is that no court has ever before, in any Guantanamo Bay proceeding, refused to allow public disclosure of images of any kind, depicting detainees being forcibly removed from their cells and forcibly fed against their will.2
As Judge Hogan pointed out in In re Guantanamo Bay Detainee Litig., 624 F. Supp. 2d 27 (D.D.C. 2009), the Id. at 35. However, given that five "other circuits have opined and uniformly held that the public has a First Amendment right of access to civil proceedings [such as habeas proceedings] and records," Judge Hogan concluded, and this Court agrees, that there has been a long history in our country of public access to civil proceedings. Id. at 363
therefore, significant deference is owed to its determinations. What the Government is really saying is that its classification system trumps the decisions of the federal courts as to the public's access to official court records; in other words, the Executive Branch (in this case, the Military) purports to be a law unto itself.
Chief Justice John Marshall, long ago, in 1803, explained this concept far better than this Court ever could:
It is emphatically the province and duty of the judicial department to say what the law is. . . . So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Marbury v. Madison, 5 U.S. 137, 177-78, 2 L.Ed. 60 (1803).
c. Aside from being repetitive,4 speculative, and extremely vague, the new declarations spend most of their time reciting examples of harassment and abuse of individual employees and military people working at Guantanamo Bay. There is no question that over those many years, there have been incidents where detainees have bit, hit, spit on, defecated on, urinated on and vomited on the hard-working people who serve at that facility. Guantanamo is, assuredly, not a desirable assignment. However, put in context there is no information provided in the new declarations about how often those events occur or whether they have caused serious bodily injury. Nor do the new declarations provide any concrete information or examples of particular incidents at Guantanamo Bay that have motivated extremist and/or insurgent groups to engage in violenceagainst United States personnel; the same is true as to the absence of any information about detainees developing countermeasures to the FCE tactics, techniques, and procedures...
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