Jihad Dhiab v. Donald J. Trump , 852 F.3d 1087 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2016 Decided March 31, 2017
No. 16-5011
JIHAD DHIAB, DETAINEE, GUANTANAMO BAY NAVAL
STATION AND SHAKER AAMER, AS NEXT FRIEND OF JIHAD
DHIAB,
APPELLEES
v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL.,
APPELLANTS
HEARST CORPORATION, ET AL.,
APPELLEES
Consolidated with 16-5012
Appeals from the United States District Court
for the District of Columbia
(No. 1:05-cv-01457)
Catherine H. Dorsey, Attorney, U.S. Department of Justice,
argued the cause for respondents-appellants/cross-appellees
(US). With her on the briefs were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, and Matthew M. Collette,
Attorney.
2
David A. Schulz argued the cause for intervenors-
appellees/cross-appellants. With him on the briefs was Matthew
L. Schafer.
Rachel B. Levinson-Waldman was on the brief for amici
curiae Brennan Center for Justice and Electronic Frontier
Foundation in support of intervenors-appellees.
Hina Shamsi and Arthur B. Spitzer were on the brief for
amici curiae American Civil Liberties Union of the Nation's
Capital and The Reporters Committee for Freedom of The Press
in support of intervenors-appellees/cross-appellants.
Before: ROGERS, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH, with whom Circuit Judge ROGERS and Senior
Circuit Judge WILLIAMS join except as to Part II.
Opinion concurring in part and concurring in the judgment
filed by Circuit Judge ROGERS.
Opinion concurring in part and concurring in the judgment
filed by Senior Circuit Judge WILLIAMS.
RANDOLPH, Senior Circuit Judge: The government’s
appeal, and the intervenors’ cross-appeal, are from the district
court’s orders releasing video recordings made at the United
States Naval Base, Guantanamo Bay, Cuba. The recordings are
of military personnel removing a detainee from his cell,
transporting him to a medical unit, and force-feeding him to
keep him alive while he was on a hunger strike.
3
The government classified these recordings as “SECRET”
because disclosing them could damage the national security.
The district court decided that under the Constitution the public
has a right to view the recordings because the detainee’s
attorney filed some of them under seal, at which point the
recordings became part of the court’s record. The government’s
appeal is on the ground that the public has no such constitutional
right. The intervenors’ cross-appeal is on the ground that
several categories of redactions the court approved prior to
public release were too extensive.
I.
The case began when Abu Wa’el (Jihad) Dhiab filed a
petition for a writ of habeas corpus to prevent the government
from force-feeding him. The district court denied Dhiab’s
motion for a preliminary injunction, finding that it lacked habeas
jurisdiction to correct conditions of confinement. Dhiab v.
Obama, 952 F. Supp. 2d 154, 155 (D.D.C. 2013). On appeal, a
panel of this court held that a Guantanamo habeas petitioner
may seek not only relief from confinement, the traditional
remedy in habeas corpus, but also an injunction to alter the
conditions of his confinement. Aamer v. Obama, 742 F.3d 1023,
1033 (D.C. Cir. 2014).1
On remand, Dhiab moved again for a preliminary
injunction, this time challenging particular government force-
feeding practices. He also filed an emergency application for a
temporary restraining order. The district court denied both
1
There is a conflict in the circuits regarding whether complaints
about conditions of confinement are cognizable in habeas cases.
Aamer, 742 F.3d at 1036-38. See also Nettles v. Grounds, 830 F.3d
922, 933 (9th Cir. 2016); Spencer v. Haynes, 774 F.3d 467, 470 n.6
(8th Cir. 2014).
4
motions. Dhiab v. Obama, 74 F. Supp. 3d 16, 19 (D.D.C. 2014);
Order, Dhiab v. Obama, No. 05-01457 (GK), (D.D.C. June 16,
2014), ECF No. 254. In considering Dhiab’s motions, the
district court ordered the government to provide Dhiab’s
attorney, who had been given a security clearance, copies of the
video recordings, the existence of which the government had
disclosed. After the government complied with the order, to
which it objected, Dhiab’s attorney filed some of the recordings
under seal.2
The government recorded Dhiab’s removal from his cell
and his force-feeding in order to train military guards about how
to handle detainees in such circumstances. In classifying each
recording as “SECRET,” we shall assume that the government
complied with Executive Order No. 13,526, 75 Fed. Reg. 707
(Dec. 29, 2009).3 This Executive Order, and those of past
Presidents, see Dep’t of Navy v. Egan, 484 U.S. 518, 527-28
(1988), specified three levels of classified national security
information: “TOP SECRET,” “SECRET,” and
“CONFIDENTIAL.” The “SECRET” classification is reserved
for “information, the unauthorized disclosure of which
reasonably could be expected to cause serious damage to the
national security” of the United States. Exec. Order No. 13,526
2
The classified recordings were sealed as required by the general
protective order governing all Guantanamo Bay detainee litigation. In
re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143, 153
(D.D.C. 2008). The district court issued a supplemental protective
order governing the recordings. That order prevented Dhiab’s counsel
from sharing the recordings with counsel representing detainees who
were not challenging the forcible cell-extraction and enteral-feeding
procedures.
3
The intervenors did not claim, let alone establish, that the
classification of the recordings was improper. The district court
expressed no opinion on the subject.
5
§ 1.2(a)(2). Unauthorized disclosure of such classified
information can be a federal criminal offense. See, e.g., 18
U.S.C. § 793.
Press organizations – sixteen of them – sought to intervene
in Dhiab’s habeas case and asked the district court to unseal the
recordings Dhiab’s attorney had filed. Their motion asserted
that under the First Amendment, and common law, the public
had a right to see these recordings because the recordings had
become part of the record of Dhiab’s habeas corpus proceeding.
The government did not oppose their intervention motion but it
did oppose the organizations’ motion to unseal the recordings.
In support of its opposition, the government filed declarations
from military officers explaining how release of the classified
recordings would threaten national security.
In October 2014, the district court granted the
organizations’ motion to intervene and their motion to unseal the
recordings, subject to further proceedings to determine what
portions of the recordings should be redacted to protect
information identifying government personnel. Dhiab v.
Obama, 70 F. Supp. 3d 486, 501 (D.D.C. 2014).
In December of that year, the government released Dhiab
from Guantanamo and transferred him to the control of the
government of Uruguay, thus rendering his habeas petition
moot.
Our court nevertheless heard the government’s appeal from
the district court’s October 2014 order unsealing the recordings
and determined that we lacked appellate jurisdiction. We lacked
appellate jurisdiction because the district court’s ruling was not
an appealable final order or an appealable collateral order in
light of further proceedings the court had scheduled. Dhiab v.
Obama, 787 F.3d 563, 565-66 (D.C. Cir. 2015). We encouraged
6
the district court on remand to consider the government’s
additional declarations, filed in support of a stay of the unsealing
order pending that appeal. Id. at 567. These new declarations
“set out the harm associated with release of the videotapes in
considerably more detail” than the earlier ones. Id.
When the case returned to the district court, it denied the
government’s motion for reconsideration and, over the
government’s objection, ordered the recordings4 released after
the government redacted identifying information such as faces,
voices and names of government personnel. Dhiab v. Obama,
141 F. Supp. 3d 23, 28-29 (D.D.C. 2015). By then Dhiab was
no longer at Guantanamo.5 Even so, the intervenors persisted in
their objections to some of the redactions and sought
reinstatement of some of the deleted audio portions of the
recordings or a transcript and subtitles.6 The district court
4
There is some discrepancy about the number of recordings at
issue. The district court’s initial opinion referred to twenty-eight
recordings already on file, but noted that the government had provided
Dhiab with an additional four recordings. Dhiab, 70 F. Supp. 3d at
492. The opinions on remand refer to thirty-two recordings. Dhiab
v. Obama, 141 F. Supp. 3d 23, 27 (D.D.C. 2015); Dhiab v. Obama,
151 F. Supp. 3d 28, 29 (D.D.C. 2015).
5
Dhiab did not file a brief in this appeal.
6
The government first redacted a mutually selected sample of ten
recordings – eight of the thirty-two recordings produced during
litigation and a compilation recording created by each party. In
addition to covering guards’ faces, uniform patches and other unique
identifiers, the government muted the audio whenever a guard was
speaking. After viewing the set of eight redacted recordings, Dhiab’s
counsel objected to the muting of guards’ voices and requested that the
audio redactions be limited. In the alternative, Dhiab’s counsel
requested the addition of subtitles and the simultaneous release of a
7
denied the intervenors’ motion regarding redaction, Dhiab v.
Obama, 151 F. Supp. 3d 28, 29 (D.D.C. 2015), ordered the
redacted recordings unsealed on or before January 11, 2016, and
granted a stay pending this appeal and cross-appeal, Order,
Dhiab v. Obama, No. 05-01457 (GK), (D.D.C. Jan. 4, 2016),
ECF No. 418.
II.
The intervenors’ claim that the Constitution requires this
national security information, properly classified as “SECRET,”
to be divulged to the world because a lawyer representing a
Guantanamo detainee filed some of the recordings under seal in
his client’s now-moot habeas corpus action is untenable. It is
important to bear in mind that the Constitution gives “the
President as head of the Executive Branch and as Commander
in Chief” the “authority to classify and control access to
information bearing on national security . . ..” Egan, 484 U.S.
at 527.
Through the years our government has been steadfast in
protecting information that, if made public, would jeopardize the
security of the United States. Statutes, longstanding regulations,
comprehensive Executive Orders, rules of the Chief Justice of
the United States, local rules and practices of the federal courts
– and more, enforce and support the President’s constitutional
duty to prevent our government’s secret information from seeing
the light of day, in judicial proceedings or otherwise.
Here the government established that the recordings of
Dhiab were properly classified as “SECRET.” The district court
did not rule otherwise, and the intervenors did not claim, let
transcript. The intervenors, who have not seen the recordings, joined
this motion.
8
alone show, that the classifications were improper. The
government submitted declarations, about which more later,
demonstrating the harm that would result from releasing any of
these recordings, redacted or not.
Yet the intervenors insist that under the First Amendment,
classified information submitted under seal in a judicial
proceeding becomes fair game for a judicial disclosure order,
such as the one the district court issued in this case. Neither the
First Amendment nor any other provision of the Constitution
stands for such a principle.
The intervenors rely heavily on Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8-9 (1986).7 This Press-Enterprise
II decision will not bear the weight they place on it. The
Supreme Court framed the question in Press-Enterprise II this
way: whether the public had “a First Amendment right of access
to the transcript of a preliminary hearing growing out of a
criminal prosecution.” Id. at 3. The Court put the question in
terms of the public’s right because the “First Amendment
generally grants the press no right to information about a trial
superior to that of the general public.” Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 609-10 (1978) (citing Estes v.
Texas, 381 U.S. 532, 589 (1965) (Harlan, J., concurring); Saxbe
v. Washington Post Co., 417 U.S. 843 (1974); Pell v. Procunier,
417 U.S. 817 (1974); and Zemel v. Rusk, 381 U.S. 1, 16-17
(1965)).
Press-Enterprise II discovered a constitutional right in the
public, although it was a qualified one: such proceedings may be
7
See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 558-
81 (1980) (opinion of Chief Justice Burger, joined by Justices White
and Stevens), id. at 584-98 (opinion of Justice Brennan, joined by
Justice Marshall).
9
sealed but only if “specific, on the record findings are made
demonstrating that ‘closure is essential to preserve higher values
and is narrowly tailored to serve that interest.’” 478 U.S. at 13-
14 (quoting Press-Enterprise Co. v. Super. Ct. (Press-Enterprise
I), 464 U.S. 501, 510 (1984) (considering the closure of voir
dire in a criminal trial)). The district court invoked this
formulation in ordering the classified Guantanamo recordings
unsealed. Dhiab, 70 F. Supp. 3d at 493.
Press-Enterprise II is not comparable to this case. Two
differences are immediately apparent. When the Court wrote of
the importance of public access to evidentiary proceedings it
could not possibly have had in mind classified national security
information. The case came up from a California state court. In
criminal cases in California a preliminary hearing functioned
“much like a full-scale trial.” 478 U.S. at 7. The sealed record
in Press-Enterprise II consisted of testimony and exhibits
relating to murder charges, not classified material. Id. at 4.
The second difference is just as obvious. Unlike Dhiab’s
case, which was civil in nature,8 the underlying action in Press-
Enterprise II was a criminal prosecution. When it comes to
classified national security information the Supreme Court has
decided that the distinction makes a difference. See United
States v. Reynolds, 345 U.S. 1, 12 (1953). In criminal cases, the
government initiates the prosecution. Access and disclosure
rights in criminal cases “do not endanger the government’s
paramount interest in national security. The government’s
interest can be protected by dismissal of the prosecution or less
drastic concessions by the government in a criminal case.”
Bruce E. Fein, Access to Classified Information: Constitutional
8
See, e.g., Fay v. Noia, 372 U.S. 391, 423 (1963), deciding that
the writ of habeas corpus is a “civil remedy for the enforcement of the
right to personal liberty” not “a stage of” a criminal proceeding.
10
and Statutory Dimensions, 26 WM. & MARY L. REV. 805, 828
(1985).9 Matters are quite different in civil cases: “the
Government is not the moving party, but is a defendant . . ..”
Reynolds, 345 U.S. at 12. For this reason, the Court in Reynolds
held that the rationale behind access to national security
information in criminal cases had “no application in a civil
forum.” Id.10 For the same reason, a noted commentator
concluded that “plaintiffs suing the United States enjoy no right
of access to classified information pertinent to the litigation.”
Fein, supra, at 828.
There are additional reasons why Press-Enterprise II does
not apply to this case. To reach its result, the Supreme Court
recounted the English tradition of public criminal trials,
9
The Classified Information Procedures Act, 18 U.S.C. app. 3,
(CIPA) governs the handling of classified evidence in criminal
proceedings. CIPA was enacted to limit the practice of criminal
defendants threatening to disclose classified information in order to
force the government to dismiss the charges. Under CIPA the court
may review the admissibility of classified evidence at a preliminary
hearing held in camera. Id. § 6(a). If the classified information is
admissible, the government can suggest a substitute for the
information or concede the fact the information tends to prove. Id.
§ 6(c). If the court rejects these measures, the government may
declassify the information or dismiss the prosecution. Id. § 6(e).
10
We also have recognized the difference between criminal and
civil proceedings: “Neither the Supreme Court nor this Court has
applied the [First Amendment right of access] outside the context of
criminal judicial proceedings or the transcripts of such proceedings.”
Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 935
(D.C. Cir. 2003).
11
beginning – the Court wrote – before the Norman conquest.11
Press-Enterprise II, 478 U.S. at 8. Although the Court did not
say as much, the idea apparently was that the Framers of the
First Amendment must have had this history in the back of their
collective minds. See Globe Newspaper Co. v. Super. Ct., 457
U.S. 596, 604-05 (1982).12 The Court cited no historical
11
We wrote in In re Motions of Dow Jones & Co., 142 F.3d 496,
502 (D.C. Cir. 1998):
The Supreme Court ruled in Gannett Co. v. DePasquale, 443
U.S. 368 (1979), that the First Amendment did not entitle
members of the media to attend a pretrial suppression hearing, at
least so long as they could receive copies of the transcript at a
later date after the danger of prejudice to the defendant had
passed. The Court reached the opposite conclusion in
Press–Enterprise Co. v. Superior Court (Press–Enterprise II),
478 U.S. 1, 12, 13 (1986), holding that a “qualified First
Amendment right of access attaches to preliminary hearings in
California”—that is, probable cause hearings “sufficiently like a
trial to justify” the conclusion that they should be open. One of
the main differences between the two cases was that although the
“near uniform practice of state and federal courts has been to
conduct preliminary hearings in open court,” Press–Enterprise II,
478 U.S. at 10; see also id. at 8, the Court in Gannett could
identify no long-standing tradition of public access to pretrial
suppression hearings. 443 U.S. at 384–93.
12
See Richmond Newspapers, Inc. v. Virginia in which the Chief
Justice explained that history was important because it showed that the
“Bill of Rights was enacted against the backdrop of the long history
of trials being presumptively open.” 448 U.S. at 575 (Burger, C.J.,
plurality opinion). The Court gave the same explanation in Press-
Enterprise I, 464 U.S. at 509 n.8. Justice Stevens, in his dissenting
opinion in Press-Enterprise II, pointed out that “in our prior cases
history mattered primarily for what it revealed about the intentions of
the Framers and ratifiers of the First Amendment.” 478 U.S. at 22.
12
evidence supporting that proposition and the wording of the
First Amendment reveals no such understanding, as the Court
itself acknowledged in an earlier opinion. Id. at 604. “With
neither the constraint of text nor the constraint of historical
practice, nothing would separate the judicial task of
constitutional interpretation from the political task of enacting
laws currently deemed essential.” In re Reporters Comm. for
Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985)
(Scalia, J.).
In habeas corpus cases, there is no tradition of public access
comparable to that recounted in Press-Enterprise II with respect
to criminal trials.13 Habeas corpus proceedings do not involve
juries. Since the beginning they have been decided by judges.
Early English courts were in session for only a few months each
year. PAUL D. HALLIDAY, HABEAS CORPUS: FROM ENGLAND TO
EMPIRE 355 n.79 (2010). Yet from the fifteenth to eighteenth
century, English courts regularly adjudicated habeas petitions
between sessions. Id. at 56-57. At such times the English
judges required jailers to make their returns to the writ to the
judge’s private chambers or to the judge’s home. Id. at 54. The
judge then made his habeas decision in private. Id. Between
1500 and 1800, about one-fifth of the writs the judges of
England issued required the jailer make the return to chambers.
Id. Although English judges more frequently requested returns
to chambers during the vacations, the practice also occurred
during terms of court. Id. The Habeas Corpus Act of 1679,
which Blackstone described as the bulwark of English liberties,
1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 133 (1765), expressly authorized the courts to issue
13
The district court here, Dhiab, 70 F. Supp. 3d at 494, and in In
re Guantanamo Bay Detainee Litigation, 624 F. Supp. 2d 27, 35
(D.D.C. 2009), lamented the lack of any discussion in the caselaw of
this subject.
13
writs of habeas corpus during vacations, thus continuing this
longstanding practice. 31 Car. 2 c. 2.
Of course in this country, proceedings in open court are the
norm, although there are well-established exceptions. See, e.g.,
In re Motions of Dow Jones & Co., 142 F.3d at 502-05. But of
importance here is not just the absence of any “unbroken,
uncontradicted history” of public attendance at habeas corpus
proceedings in eighteenth-century England. Richmond
Newspapers, 448 U.S. at 573 (Burger, C.J., plurality opinion).
More significant is that from the beginning of the republic to the
present day, there is no tradition of publicizing secret national
security information involved in civil cases, or for that matter,
in criminal cases.14 The tradition is exactly the opposite.15
To appreciate this one need only consider what occurs when
classified information might be revealed during an oral
14
See United States v. McVeigh, 119 F.3d 806, 812 (10th Cir.
1997) (“Assuming that the Press-Enterprise II right of access extends
to at least some types of judicial documents, the question remains
whether that right applies to the particular types of documents at issue
in this case.”); In re Grand Jury Subpoena, 103 F.3d 234, 242 (2d Cir.
1996) (holding that under Press-Enterprise II, the court must focus on
the specific motion that the moving party seeks to disclose publicly,
not the broader grand jury investigation or hearings in which the
motion arose).
15
See, e.g., McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir.
1983): “As a general rule, citizens have no first amendment right of
access to traditionally nonpublic government information. See, e.g.,
Houchins v. KQED, Inc., 438 U.S. 1, 8-9 (1978) (plurality opinion);
id. at 16 (Stewart, J., concurring); Saxbe v. Washington Post Co., 417
U.S. 843, 849 (1974); Pell v. Procunier, 417 U.S. 817, 831-32
(1974).”
14
argument in our courtroom. In such cases the court’s security
officer “seals” the courtroom – that is, excludes the public,
including the press. This is done not only in criminal appeals
but also in civil cases. The procedures followed are those the
Chief Justice of the United States has prescribed to protect
classified information in criminal cases pursuant to the
Classified Information Procedures Act. 18 U.S.C. app. 3 § 9
note (Security Procedures Established Pursuant to Pub. L. No.
96-456, 94 Stat. 2025, by the Chief Justice of the United States
for the Protection of Classified Information). One may be
confident that over many years none of the members of our
court, past and present, ever supposed that in complying with the
Chief Justice’s rules, we were somehow violating the
Constitution.
Add to United States v. Reynolds, already mentioned, the
case of Totten v. United States, 92 U.S. 105 (1875).16 Both of
these civil cases are well-known instances in the long history of
protecting national security secrets of the United States.17
Reynolds held that in a suit against the government, the plaintiff
had no right to discover military or state secrets; the privilege
against revealing such information was, the Court wrote, “well
established.” 345 U.S. at 6-7. The Court in Reynolds described
its 1875 decision in Totten as having dismissed a civil suit, the
subject of which was a “state secret.” Id. at 11 n.26. In
Reynolds, even if the plaintiffs’ need for the information had
been “compelling,” no showing of necessity could justify a court
order requiring the government to reveal “military secrets.” Id.
at 11. Relying on Reynolds, our court has held that in order to
16
See generally Daniel L. Pines, The Continuing Viability of the
1875 Supreme Court Case of Totten v. United States, 53 ADMIN. L.
REV. 1273 (2001).
17
See Fein, supra, at 828-31.
15
protect national security information, the district court “need
only be satisfied that there is a reasonable danger that
compulsion of the evidence will expose military matters which,
in the interest of national security, should not be divulged.”
Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) (internal
quotation and emphasis omitted).
The government also discusses cases arising under the
Freedom of Information Act. Although this legislation requires
much government information to be disclosed to the public,
Congress expressly exempted properly classified information.
5 U.S.C. § 552(b)(1). To determine whether the government’s
classification was proper, the court may review the document
itself, but only ex parte and in camera, see 5 U.S.C.
§ 552(a)(4)(B) – that is, in private – as we mentioned in a case
dealing with information regarding detainees at Guantanamo.
ACLU v. Dep’t of Def., 628 F.3d 612, 626-27 (D.C. Cir. 2011).
If the government had properly classified the document, the
litigant, and hence the public, had no right to see it.
In Boumediene v. Bush, the case establishing the right of
Guantanamo detainees to bring habeas actions, the Court
thought the unique proceedings it was authorizing might risk
“widespread dissemination of classified information.” 553 U.S.
723, 796 (2008). To guard against this the Court wrote that the
government “has a legitimate interest in protecting sources and
methods of intelligence gathering; and we expect that the
District Court will use its discretion to accommodate this
interest to the greatest extent possible. Cf. United States v.
Reynolds, 345 U.S. 1, 10 (1953) (recognizing an evidentiary
privilege in a civil damages case where ‘there is a reasonable
danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be
divulged’).” Boumediene, 553 U.S. at 796.
16
To that end, Guantanamo habeas proceedings have been
litigated under orders designed to protect classified information.
See, e.g., In re Guantanamo Bay Detainee Litig., 577 F. Supp.
2d 143 (D.D.C. 2008). These protective orders require not only
that classified information be maintained under seal, but also
that counsel (with a security clearance) not disclose classified
information at any hearing or proceeding. Id. at 150, 153. The
government informs us that Guantanamo habeas cases routinely
involve closed sessions to protect classified information from
the public eye. Appellants’ Reply Br. at 20. Dhiab’s case is no
exception: in his habeas proceedings, the district court held an
evidentiary hearing from which the public was excluded. Id. at
21.
As against this, the intervenors are unable to cite a single
case in which a court – other than the district court here – found
that the First Amendment compelled public disclosure of
properly classified national security information in a habeas
proceeding, or in any other type of civil proceeding.
Press-Enterprise II spoke of a need to take into account
“experience and logic” in determining whether the First
Amendment required a record of a judicial proceeding to be
released to the world. 478 U.S. at 9. The “experience” in
habeas corpus cases and in cases involving classified documents
have already been discussed.
As to “logic,” it is important to remember that logic does
not give starting points. First principles do. For this case the
starting point was established at the Founding. The preamble to
the Constitution gives equal billing to the national defense and
“the Blessings of Liberty.” U.S. CONST. pmbl. As the Supreme
Court stated, there is no higher value than the security of the
nation, a value the Court deemed a “compelling interest.” Haig
v. Agee, 453 U.S. 280, 307 (1981) (internal quotation omitted).
17
Press-Enterprise II therefore does not apply to this case and
neither the intervenors nor the public at large have a right under
the First Amendment to receive properly classified national
security information filed in court during the pendency of
Dhiab’s petition for a writ of habeas corpus.
III.
Even if the intervenors had a qualified First Amendment
right of access to the Dhiab recordings, we would still reverse
the district court’s decision. The court’s ruling that the
government failed to show a “substantial probability” of harm
to a higher value was clear error.18 Press-Enterprise II, 478 U.S.
at 14 (internal quotation omitted).
The government identified multiple ways in which
unsealing these recordings would likely impair national security.
Two of these risks – detainees triggering forcible encounters and
developing countermeasures – together and individually, were
enough to prevent these recordings from becoming public. The
government’s declarations explained that the recordings would
enable detainees, assisted by outside militants, to develop
countermeasures to the guards’ cell-extraction and enteral-
feeding techniques. The district court dismissed this prospect
because the government had “already released substantial
18
This court has not decided the proper standard of review for a
district court’s “compelling interest” analysis. The circuits disagree
about whether to apply the ordinary “clear error” standard, FED. R.
CIV. P. 52(a)(6), or “de novo” review in light of Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 508-10, 508
n.27 (1984). See, e.g., United States v. Erie Cty., 763 F.3d 235, 238
(2d Cir. 2014); In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174-
75 (5th Cir. 2011). We need not decide this issue because we would
reverse even if the standard were clear error.
18
information” about these procedures and the detainees were
already “intimately familiar” with them. Dhiab, 70 F. Supp. 3d
at 497-98. The government’s declarations contradict the court’s
assessment. The recordings of the feeding process contain
“significantly more information than previously released
imagery,” Declaration of Rear Admiral Kyle J. Cozad, October
15, 2014, ¶ 4, and the publicly released information about cell
extractions was outdated and described techniques not being
used at Guantanamo. Id. ¶¶ 5-6. The recordings also show
elements of the procedures that “take place outside the
detainee’s presence” or “shielded from the detainee or otherwise
obstructed from view.” Declaration of Rear Admiral Richard
W. Butler, ¶ 12; Declaration of Rear Admiral Kyle J. Cozad,
November 26, 2014, ¶ 9.
The government’s expert judgment was that militants could
study the recordings repeatedly and slowly, looking for
“patterns” of “mistakes” not identifiable from first-hand
experience or written descriptions. Id. ¶ 14. Even if the
recordings contained no new information, the government thus
demonstrated good cause for sealing them. Information gleaned
from the recordings could reach current detainees, who
communicate with family members and other outside persons
and have some access to outside media. Id. ¶ 6. Militants could
also use the recordings to train fighters the government may
capture and detain in the future. Id. ¶ 18. When detainees resist
what are already hazardous procedures for the guards, this could
further endanger government personnel at Guantanamo. Guards
have been kicked, grabbed, punched, knocked down, bitten, and
sprayed with bodily fluids. Id. ¶ 7. The government’s interest
in ensuring safe and secure military operations clearly
overcomes any qualified First Amendment right of access.
Rear Admiral Richard W. Butler identified a related danger:
“If video recordings of forced cell extractions, or portions
19
thereof, must be released to the public, detainees would surely
become aware of this, and some likely would respond by
refusing to comply with requests of the guard force in the hope
that such resistance would result in forced cell extractions that
would be recorded by video and released to the public, thus
providing terrorist elements with propaganda to fuel their
continued global hostilities against the United States.”
Declaration of Rear Admiral Richard W. Butler, ¶ 18.
At the time of his declaration, Rear Admiral Butler was the
Commander of the Joint Task Force-Guantanamo. He made his
declaration on personal knowledge. The district court, calling
his statement “speculative,” thought it knew better. Dhiab, 70
F. Supp. 3d at 500. According to the court, detainees will not
act as predicted because the court’s decision will not give all
“detainees the unilateral right to publicize recordings.” Id. at
501. This misses an important point. The concern was that
other detainees will believe courts may disclose recordings of
their behavior. Needless to say, the district court had no day-to-
day experience with the people being detained at Guantanamo
and had no special insight into their mindset. Rear Admiral
Butler did.
The government also explained in detail the risk that
extremists would use the recordings to incite violence against
American troops abroad and as propaganda to recruit fighters.
The recordings are “particularly subject to use” because they
depict “a forcible interaction between . . . personnel and the
detainees.” Declaration of Rear Admiral Sinclair M. Harris,
¶ 12. Images are more provocative than written or verbal
descriptions. Extremists have used Guantanamo Bay imagery
in their propaganda and in carrying out attacks on Americans.
Id. ¶¶ 8,10. For example, the Islamic State beheaded American
journalists wearing orange jumpsuits commonly associated with
Guantanamo Bay detainees. Id. ¶ 8. In his forced final
20
statement before his execution, Steven Sotloff, one of the
journalists, was forced to mention the continued operation of
Guantanamo as a reason why he was about to be murdered. Id.
The district court disregarded this evidence as legally
irrelevant under the “heckler’s veto” line of cases, which
prevents the government from censoring speech because the
speech may provoke violence or offend others. See Dhiab, 70
F. Supp. 3d at 500 (citing Forsyth Cty. v. Nationalist Movement,
505 U.S. 123, 134-35 (1992)). Those cases are irrelevant. The
government cited this substantial probability of harm to national
security in order to overcome a qualified First Amendment right
of access, not as a justification for suppressing speech. Risks of
violent attacks by third parties against a cooperating defendant
can justify sealing a plea agreement. See Washington Post v.
Robinson, 935 F.2d 282, 291-92 (D.C. Cir. 1991). And the
government unquestionably can classify documents based on the
risk our enemies will use them to incite violence. Judicial
Watch, Inc. v. United States Department of Defense, 715 F.3d
937, 943 (D.C. Cir. 2013), so held.
It bears repeating that the government “has a compelling
interest in protecting . . . the secrecy of information important to
our national security . . ..” McGehee, 718 F.2d at 1143 (quoting
Snepp v. United States, 444 U.S. at 509 n.3 (per curiam)
(emphasis and alteration in original)). See also C.I.A. v. Sims,
471 U.S. 159, 175 (1985); United States v. Yunis, 867 F.2d 617,
623 (D.C. Cir. 1989). The district court did not disagree with
the “SECRET” classification of these recordings, and neither did
the intervenors. By definition, “the unauthorized disclosure of
[the recordings] reasonably could be expected to cause serious
damage to the national security.” Executive Order No. 13,526
§ 1.2 (a)(2). The district court had no basis for ruling that
publicly releasing the recordings could not be expected to cause
such harm.
21
The district court did not reach the intervenors’ common-
law claim because it ruled in their favor on the basis of the First
Amendment. Dhiab, 70 F. Supp. 3d at 492 n.2; see Nixon v.
Warner Commc’ns, Inc., 435 U.S. at 598-99. The law of this
circuit is that the need to “guard against risks to national security
interests” overcomes a common-law claim for access. United
States v. Hubbard, 650 F.2d 293, 315-16 (D.C. Cir. 1980).
Because keeping the recordings sealed is narrowly tailored to
protect the government’s compelling interest in guarding
national security, intervenors cannot prevail on their common-
law claim. See Wash. Post, 935 F.2d at 288 n.7; see also
McVeigh, 119 F.3d at 812.
Because the recordings will remain sealed, the intervenors’
cross-appeal about the extent of the redactions is dismissed as
moot.
Reversed.
ROGERS, Circuit Judge, concurring in part and concurring
in the judgment. Like Judge Williams, I would apply the
experience and logic analysis of Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8–9 (1986) (“Press-Enterprise II”),
and so my conclusion about when the government’s interest in
protecting information classified as SECRET will outweigh the
public’s First Amendment interest is more tentative than Judge
Randolph’s. At the same time, I tend to be less tentative than
my colleagues about the nature of the historical background and
the level of generality properly used in the analysis. Still, these
analytical differences aside, the court is in agreement that the
district court’s order making the redacted SECRET videotapes
public must be reversed. See Op. at 1 (Williams, J.); Op. at
16–21 (Randolph, J.). I offer a few observations on my
approach.
Although neither the Supreme Court nor this court has
applied the qualified First Amendment right of access to judicial
civil proceedings, in Press-Enterprise II, the Supreme Court
explained that the access right extends to any judicial
proceeding where there is a “tradition of accessibility” and
“public access plays a significant positive role in the functioning
of the particular process in question.” 478 U.S. at 8. The First
Amendment guarantees the “rights to speak and to publish
concerning what takes place at a trial.” Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 576–77 (1980). The then-Chief
Justice stated that “[w]hether 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.” Id. at 580 n.17. By its terms, the
experience and logic test does not limit the right of access to
criminal proceedings. Every circuit to consider the issue has
concluded that the qualified First Amendment right of public
access applies to civil as well as criminal proceedings. See
Courthouse News Serv. v. Planet, 750 F.3d 776, 786 (9th Cir.
2014); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684
2
F.3d 286, 298 (2d Cir. 2012); Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253–54 (4th Cir. 1988); Publicker
Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984); In re
Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); In re
Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.
1983); Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.
1983). Speaking for the Second Circuit, Judge Calabresi
explained that the “recognition of the right to attend civil trials
derives from the fact that the First Amendment, unlike the Sixth,
does not distinguish between criminal and civil proceedings, nor
does its distinguish among branches of government.” N.Y. Civil
Liberties Union, 684 F.3d at 298. “[O]nce unmoored from the
Sixth Amendment, there is no principle that limits the First
Amendment right of access” to criminal proceedings. Id.
(internal quotation marks omitted). As Judge Williams
observes, “the fact that habeas proceedings are formally civil is
no obstacle to use of the experience-and-logic framework.” Op.
at 4 (Williams, J.).
Efforts to sow doubt about this conclusion and the
conclusion of our sister circuits are unpersuasive because they
fail, in part, to acknowledge an important distinction between a
criminal defendant’s rights and the public’s role in advancing
observance of those rights. Judge Randolph notes that in United
States v. Reynolds, 345 U.S. 1 (1953), the Supreme Court
distinguished between criminal and civil proceedings in
addressing the government’s invocation of the military secrets
privilege to block the release of information that the government
claimed involved national security. See Op. at 9–10 (Randolph,
J.). But the Court did so in the context of highlighting that the
government could not rely on the state secrets doctrine when it
had prosecuted the defendant: “it is unconscionable to allow [the
government] to undertake prosecution and then invoke its
governmental privileges to deprive the accused of anything
which might be material to his defense.” Reynolds, 345 U.S. at
3
12. The distinction drawn by the Court arose in the context of
protecting the rights of the accused, not to indicate that the
public’s right of access is more robust in criminal than in civil
proceedings. Because the First Amendment right of access is
enjoyed by the public, whether the “government is . . . the
moving party” has little bearing on the First Amendment
analysis. Op. at 10 (Randolph, J.) (quoting Reynolds, 345 U.S.
at 12). The same is true of the Classified Information
Procedures Act (“CIPA”), which Congress passed to “limit the
practice of defendants threatening to disclose classified
information in order to force the government to dismiss the
charges.” Id. at 10 n.9. 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.
Furthermore, in raising questions about the nature of the
historical tradition and its level of generality, a word of caution
is in order. See Op. at 5–7 (Williams, J.); Op. at 10–12
(Randolph, J.). At least as early as 1866, habeas applications
were filed in open court in the United States. Ex Parte Milligan,
71 U.S. 2, 5 (1866)). It is true that in holding the right to attend
criminal trials is implicit in the guarantees of the First
Amendment, the Supreme Court in Richmond Newspapers
traced “an unbroken, uncontradicted history” of public
accessibility, 448 U.S. at 573, beginning prior to the Norman
Conquest. But it is also true that the Court subsequently
concluded in Press-Enterprise II that the practice of state and
federal courts in the 19th century onward sufficed to establish a
history of access to preliminary hearings in criminal cases. 478
U.S. at 10 (emphasis added); see id. at 22 (Stevens, J.,
dissenting) (“[I]t is uncontroverted that a common-law right of
access did not inhere in preliminary proceedings at the time the
First Amendment was adopted.”). And in Washington Post v.
Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991), this court, joining
4
three other circuits, held that a qualified right of access applies
beyond the criminal trial itself to executed plea agreements and
related documents. Because “plea bargaining was probably
nonexistent before 1800” in the United States, Mark H. Haller,
Plea Bargaining: The Nineteenth Century Context, 13 LAW &
SOC’Y REV. 273, 273 (1979); see also George Fisher, Plea
Bargaining’s Triumph, 109 YALE L.J. 857, 1017–24 (2000), this
court apparently relied on post-ratification practices in
concluding that “plea agreements have traditionally been open
to the public.” Robinson, 935 F.2d at 288. Yet my colleague
suggests that pre-ratification practices should be the focus of our
inquiry. See Op. at 10–12 (Randolph, J.).
The Supreme Court has not required there be a history of
absolute accessibility to satisfy the “experience” prong; a “near
uniform practice of state and federal courts” suffices. Press-
Enterprise II, 478 U.S. at 10 (emphasis added); see id. at 10 n.3.
There can be “gaps.” Op. at 7 (Williams, J.). In Press-
Enterprise II, the Court acknowledged an historical “tradition of
accessibility” for state and federal preliminary hearings even
though several states had “no historical counterpart,” 478 U.S.
10 & n.3, and had only recently recognized a right of public
access to preliminary hearings in view of their importance to the
criminal trial. Id. at 10 n.3; see also id. at 24–25 (Stevens, J.,
dissenting). The Court contrasted grand jury proceedings, which
have “traditionally been closed to the public,” id. at 10, because
their “proper functioning . . . depends upon the[ir] secrecy,” id.
at 9. Nonetheless, in relying on English history from the 16th to
18th centuries, my colleagues appear unpersuaded, surprisingly,
that the overwhelming practice of open habeas corpus
proceedings — at least 80% — establishes a sufficient tradition
of accessibility. See Op. at 12 (Randolph, J.); Op. at 7
(Williams, J.). The author on whom they rely suggests that the
in-chambers habeas practice may be explained by the limited
terms of court, the need for prompt issuance of writs to ensure
5
compliance with court orders, and judicial vacations and travel
— all when modern forms of communication were non-existent.
PAUL D. HALLIDAY, HABEAS CORPUS: FROM ENGLAND TO
EMPIRE 53–58 (2010). In other words, there was a well-settled
expectation that habeas proceedings would be open to the public
when the courts were in session.
Neither does this case present the occasion to define the
meaning of “judicial record” in a manner contrary to the
understanding of the district court and the parties, and how this
court has viewed filings in habeas cases. See Op. at 2–3
(Williams, J.); see also Parhat v. Gates, 532 F.3d 834, 836 (D.C.
Cir. 2008). No issue is presented to this court concerning the
“judicial” nature of the SECRET videos filed by Dhiab’s
counsel in the district court. Even so, on its own terms, the
suggested definition would appear to be overly restrictive,
excluding from the category of “judicial records,” for example,
certain pleadings by a party. See FED. R. CIV. P. 7, 79.
As for the logic part of the Press Enterprise II test, it is true
that there is no instruction manual as such for lower courts on
“choosing the level of generality at which to assess the
‘proceeding.’” Op. at 5 (Williams, J.). Supreme Court
precedent is itself a guide, however, and it indicates that a high
level of generality can be appropriate. In Press-Enterprise II,
410 U.S. at 10, the Court applied the experience and logic test
to preliminary hearings in California, concluding that because
“preliminary hearings conducted before neutral and detached
magistrates” in other state and federal courts have traditionally
been open, there was a tradition of access that applied to the
California proceeding. The Court made no mention of the
“substantial variations in the structure of the preliminary hearing
as it is conducted throughout the country.” Jesse H. Choper,
Consequences of Supreme Court Decisions Upholding
Individual Constitutional Rights, 83 MICH. L. REV. 1, 112
6
(1984) (quoting Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN
CRIMINAL PROCEDURE: CASES-COMMENTS-QUESTIONS 963 (5th
ed. 1980)); see also Note, The Function of the Preliminary
Hearing in Federal Pretrial Procedure, 83 YALE L.J. 771,
773–74 (1974). For example, the New Hampshire Supreme
Court, in ruling that hearsay was admissible at preliminary
hearings, noted that the highest court in another state had taken
a “contrary position,” and that “[s]uch decisions are based upon
different statutes, [and] a different view of the purpose of a
probable cause hearing.” State v. St. Arnault, 317 A.2d 789, 791
(N.H. 1974) (citing Myers v. Commonwealth, 298 N.E.2d 819
(Mass. 1973)). By lumping together the various state and
federal preliminary hearings when applying the experience and
logic test, the Supreme Court suggests that a lower court may
properly apply the test at a fairly high level of generality. The
writ of habeas corpus has never been a “static, narrow,
formalistic remedy,” Jones v. Cunningham, 371 U.S. 236, 243
(1963), but one whose scope and application has “changed
depending upon the circumstances,” Boumediene v. Bush, 553
U.S. 723, 779 (2008). Taken together, that would mean viewing
Dhiab’s habeas proceeding as falling within the tradition of open
habeas proceedings generally, rather than singling out habeas
petitions filed by Guantanamo detainees for a separate test.
The qualified First Amendment right of access fits well with
the privilege of habeas corpus, which was originally “one of the
few safeguards of liberty specified in [the] Constitution.” Id. at
739. Because criminal trials and habeas proceedings are
designed to protect against abuses of Executive power and guard
individual liberty, why would the First Amendment right of
access apply differently in the two proceedings? “Courts and
commentators have long recognized the centrality of openness
to adjudicatory proceedings: ‘Without publicity, all other checks
are insufficient: in comparison of publicity, all other checks are
of small account.’” N.Y. Civil Liberties Union, 684 F.3d at 296
 7
(quoting In re Oliver, 33 U.S. 257, 271 (1948) (quoting 1
Jeremy Bentham, RATIONALE OF JUDICIAL EVIDENCE 524
(1827))). The qualified right of public access plays a significant
positive role in criminal proceedings by ensuring that “standards
of fairness are being observed.” Press-Enterprise Co. v.
Superior Court, 464 U.S. 501, 508 (1984); see also Richmond
Newspapers, 448 U.S. at 569. In habeas proceedings, the
absence of a jury, “long recognized as an inestimable safeguard
against the corrupt or overzealous prosecutor and against the
complaint, biased or eccentric judge[,] makes the importance of
public access . . . significant.” Press-Enterprise II, 478 U.S. at
12–13 (quoting Duncan v. Louisiana, 391 U.S. 145, 156 (1968)).
Also, “[t]o the extent the First Amendment embraces a right of
access to criminal trials, it is to ensure that th[e] constitutionally
protected discussion of governmental affairs is an informed
one.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
604–05 (1982) (internal quotation marks omitted); see also
Richmond Newspapers, 448 U.S. at 576–77. Because the writ
of habeas corpus is an important part of our Constitution and a
“vital instrument for the protection of individual liberty,”
Boumediene, 553 U.S. at 743, the public’s qualified right to
informed discussion about its government would apply no less
in these proceedings.
Nor is there reason to conclude that when the Supreme
Court articulated the experience and logic test, “it could not
possibly have had in mind classified national security
information.” Op. at 9 (Randolph, J.). The Court’s test protects
against threats to our nation’s security by prohibiting disclosure
when it will cause a “substantial probability” of harm to an
“overriding interest.” Press-Enterprise II, 478 U.S. at 7, 14.
The right to access judicial proceedings “give[s] meaning to
[the] explicit guarantees” of freedom of speech and press,
Richmond Newspapers, 448 U.S. at 576, and the Court is well
aware that First Amendment rights will often clash with national
8
security concerns, see, e.g., Dennis et al. v. United States, 341
U.S. 494 (1951). Yet the Court crafted a test where the
threshold First Amendment question is whether “the particular
process in question” passes the experience and logic test, Press-
Enterprise II, 478 U.S. at 8; see also Op. at 1, 4 (Williams, J.),
not whether the records submitted in that proceeding contain
classified information. Because the test accounts for the
protection of national security information, the presence of such
information in a judicial proceeding does not crowd out the
decades-old and flexible approach set forth in Press-Enterprise
II.
WILLIAMS, Senior Circuit Judge, concurring in part and
concurring in the judgment: I join Parts I and III of Judge
Randolph’s opinion. I write separately to explain why I view
the First Amendment analysis through a different lens than the
one he applies in Part II of his opinion. While my approach
leads to the same result as his, my conclusions are more
tentative and my doubts more pronounced.
***
The Supreme Court has sketched a two-stage process for
resolving whether the First Amendment affords the public
access to a particular judicial record or proceeding. First the
court must determine whether a “qualified First Amendment
right of public access” exists. Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 9 (1986). If so, then the potential
qualification comes into play, and the record or proceeding
may be closed only if “closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Id. at
13-14. Assuming the existence of such a qualified right in
this case, all members of the panel agree that the compelling
national security considerations discussed in Part III of Judge
Randolph’s opinion render that right unavailable here.
But on the question of how to determine if that qualified
right actually exists, we see things somewhat differently. In
analyzing that issue, the Supreme Court has identified two
requirements that it calls the “tests of experience and logic.”
Id. at 9; see also In re Reporters Committee for Freedom of
the Press, 773 F.2d 1325, 1331-32 (D.C. Cir. 1985) (Scalia,
J.). The “experience” inquiry looks to “whether the
proceeding has historically been open.” Reporters Committee,
773 F.2d at 1331. And the somewhat oddly-labeled “logic”
inquiry asks “whether the right of access plays an essential
role in the proper functioning of the judicial process and the
government as a whole.” Id. at 1332. Both tests must be
2
satisfied before we can conclude that the First Amendment
provides a qualified right of access. Id.
Before trying to work through those questions, I note that
the government doesn’t contest the premise that the
documents here are judicial records. Accordingly, I assume
that they are—but it is by no means obvious. Merely filing a
document with the district court isn’t enough to transform it
into a judicial document. See, e.g., SEC v. AIG, 712 F.3d 1,
3-4 (D.C. Cir. 2013). Absent a judicial decision, the
documents filling district court dockets are no more than
litigants’ requests for action (or inaction). United States v. El-
Sayegh, 131 F.3d 158, 162 (D.C. Cir. 1997). To become
judicial records, the files must play some role in the
adjudicatory process—i.e., in the judicial decision at hand.
See AIG, 712 F.3d at 3 (quoting El-Sayegh, 131 F.3d at 163).
Justice Holmes long ago articulated the basic reason in a
somewhat different context:
It is desirable that the trial of causes should take
place under the public eye, not because the
controversies of one citizen with another are of
public concern, but because it is of the highest
moment that those who administer justice should
always act under the sense of public responsibility,
and that every citizen should be able to satisfy
himself with his own eyes as to the mode in which a
public duty is performed.
Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), quoted in
Reporters Committee, 773 F.2d at 1335.
Here it is unclear whether the district court “made [any]
decisions about the[] [disputed recordings] or that otherwise
relied on them.” AIG, 712 F.3d at 4. What we do know is
that Dhiab’s attorneys attached three (of the more than thirty)
3
videos to a brief seeking a temporary restraining order and
that the district court denied that TRO after a classified
hearing. See Notice of Filing, Dhiab v. Obama, No. 05-1457
(GK) (June 14, 2014), ECF. No. 252; Order, Dhiab v. Obama,
No. 05-1457 (GK) (June 16, 2014), ECF No. 254. But we
don’t know if those videos (or others) were played at the
hearing or if they might have been understood as a basis for
the district court’s decision. And by the time the district court
ruled on Dhiab’s request for a preliminary injunction, the
government had stopped performing forced cell extractions on
him and so the district court offered no opinion on their
legality. See Dhiab v. Obama, 74 F. Supp. 3d 16, 21 (D.D.C.
2014). Since videos that show only his extraction were thus
irrelevant to the district court’s adjudication of the remaining
challenges, such recordings (if any) could not be judicial
records. See AIG, 712 F.3d at 3–4; El-Sayegh, 131 F.3d at
163. Videos that include footage of the force feedings pose a
closer question, but the answer is hardly clear. Nowhere in
the district court’s injunction opinion does it rely on the
videos expressly. Indeed, the only mention of those
recordings is in a quick recitation of the procedural history.
74 F. Supp. 3d at 20. While that opinion refers to certain
government exhibits in discussing whether the feeding process
is painful, it identifies those exhibits only by number, so we
don’t know whether they include the disputed videos. See id.
at 25-26. Again, as the government didn’t raise the argument,
I proceed on the assumption that all of the disputed videos are
judicial records and proceed to the task of divining the
possible existence of a qualified First Amendment right of
access.
***
A preliminary concern is posed by our declaration several
years ago that the “experience and logic test . . . has been
limited to judicial proceedings that are part of the criminal
4
trial process” and that “[n]either the Supreme Court nor this
court has applied” it outside that context. Center for Nat’l
Security Studies v. DOJ, 331 F.3d 918, 935 (D.C. Cir. 2003)
(emphasis added). But Reporters Committee proves
otherwise; there we applied the test to documents used in civil
summary judgment proceedings. It’s true that we’ve never
found a qualified First Amendment right outside the criminal
context, but we’ve never categorically ruled it out either (and
many other circuits have concluded that such a right exists in
civil and even administrative matters, e.g., N.Y. Civil Liberties
Union v. N.Y.C. Trans. Auth., 684 F.3d 286, 297-98 (2d Cir.
2011)). And in Center for National Security Studies we noted
that the records sought consisted of “investigatory
information” not “information relating to a government
adjudicative process,” and, anticipating El-Sayegh, we saw
that fact as precluding the application of the First Amendment
access right. 331 F.3d at 936. In short, then, the fact that
habeas proceedings are formally civil is no obstacle to use of
the experience-and-logic framework.
That issue cleared aside, I next turn to the level of
generality at which we should consider the “experience”
bearing upon the proceedings or records in question. The
Court has appeared to focus on the “particular proceeding in
question,” Press-Enterprise, 478 U.S. at 9, but without
explaining whether we look to broad or narrow categories and
without precluding focus on types of documents rather than
proceedings. If proceedings are the subject of analysis, 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.
Despite the Supreme Court’s apparent interest in the
“proceedings,” courts have often, where documents were at
issue, turned directly to the documents in dispute, and applied
5
the “experience and logic” ideas to them. See, e.g., United
States v. Erie County, 763 F.3d 235, 241 (2d Cir. 2014); In re
Boston Herald, Inc., 321 F.3d 174, 182 (1st Cir. 2003); United
States v. Corbitt, 879 F.2d 224, 229 (7th Cir. 1989). And in
Reporters Committee, we spoke initially of “proceedings,” but
then slipped seamlessly to addressing the type of documents
sought. 773 F.2d at 1330-41.
One is tempted to dismiss all of this as immaterial, on the
theory that we have a case of “pay me now or pay me later.”
If disclosure risks inflicting serious harm, it will emerge either
in the assessment of experience and logic (here, for example,
by focusing on Guantanamo habeas cases, dominated as they
are by classified information), or as a trigger of the right’s
qualification (because the classified character of the
documents meets the government’s burden of showing a
compelling need for secrecy).
Not so fast. Intervenors point to Globe Newspaper Co. v.
Superior Court, 457 U.S. 596 (1982), where the Court applied
its experience-and-logic tests to criminal trials generally,
rejecting the state’s effort to make the classification at the
level of the testimony in question—that of a minor child in a
sexual abuse case. Id. at 605 n.13. The Court made no claim
that experience and logic dictated openness for that segment
of the case. But, turning to the government’s burden, it
rejected the claim that the interests for excluding the public
were compelling. Thus the parties claiming access had a
fairly easy ride to showing experience and logic, and the
government faced an uphill battle on its justification for
privacy. Resolving the level of generality affected not only
who bore the burden of persuasion but also the severity of that
burden.
Apart from choosing the level of generality at which to
assess the “proceeding” (plus the choice between proceeding
6
and documents), the “experience” test requires a decision on
what “history” is relevant. Yet we have no more guidance
here. Reporters Committee tells us that a “historical tradition
of at least some duration is obviously necessary,” 773 F.2d at
1332, but doesn’t tell us how long is long enough. As Judge
Randolph notes, pre-ratification history is surely relevant,
Randolph Op., Part II, at 11 n.12, but courts have plainly not
seen the relevant history as limited to proceedings before
1791. Press-Enterprise itself relied exclusively on history
that post-dated the First Amendment to some extent or
another. Compare 478 U.S. at 10-12 & n.3 (considering 1807
treason trial of Aaron Burr and modern cases showing that
most states required preliminary hearings be held in open
court), with id. at 22-25 (Stevens, J., dissenting) (arguing that
the inquiry should look to history “at the time the First
Amendment was adopted,” not those “recent common-law
developments”). And unlike the plurality opinion in
Richmond Newspapers, Inc. v. Virginia, which traced the
history of trial access back to “the days before the Norman
Conquest,” 448 U.S. 555, 565 (1980), our decision in
Reporters Committee relied heavily on late-nineteenth and
early-twentieth century case law, 773 F.2d at 1332-36; see
also Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th
Cir. 2002) (collecting cases from the Third, Sixth, and Ninth
Circuits relying on more recent history). Admittedly none of
those decisions explicitly grappled with this question, but they
at least raise doubt about stopping the historical clock at 1791.
Here the parties have neither provided a comprehensive
history or sought to explain why only certain history is
relevant. The government’s historical analysis amounts to
nothing more than a few citations to relatively recent cases
and a brief discussion of the Classified Procedures
Information Act of 1980. See App. Br. at 48-49. Intervenors
were similarly cursory, citing a handful of mostly recent cases
before jumping into their competing interpretation of CIPA.
7
See Intervenors’ Br. at 27-28, 31-35 & nn.4, 7. But neither
side tells us why those cases or CIPA might be relevant to the
historical tradition. And—other than intervenors’ throwaway
citation to Ex Parte Milligan, 71 U.S. 2 (1886)—neither gives
a hint of what the tradition of access was like pre-1970, much
less pre-1791. Judge Randolph’s opinion identifies evidence
that a substantial portion (20%) of early English habeas cases
were heard and decided privately. See Randolph Op., Part II,
at 12 (citing PAUL D. HALLIDAY, HABEAS CORPUS: FROM
ENGLAND TO EMPIRE 54, 56-57 (2010)). And that evidence
appears persuasive. Besides, focus on such evidence has the
advantage of being consistent with the idea that those who
adopted the First Amendment meant to embody a pre-existing
right of access to judicial proceedings and records. See
Richmond Newspapers, 448 U.S. at 575-76. If that were the
historical inquiry, all we’d need to know would be whether
the access sought was available before 1791. See Press-
Enterprise, 478 U.S. at 22 (Stevens, J., dissenting). But the
cases don’t demand any such focus or read the right so
narrowly. Nor do they give any guidance on how to choose
among potentially relevant time spans; we’re left simply to
guess at what history might be relevant.
We’re similarly in the dark in terms of how consistent a
tradition of openness must be within a given time span. The
Court has told us that an “unbroken, uncontradicted history”
will do the trick, Richmond Newspapers, 448 U.S. at 573, but
has also found a qualified First Amendment right when there’s
a “near uniform [historical] practice,” Press-Enterprise, 478
U.S. at 10 (emphasis added). But while its use of the word
“near” tells us that the tradition can have gaps, we don’t know
how close to uniform the tradition needs to be. Perhaps, as
Judge Rogers suggests, it’s enough that the public historically
had access at least 80% of the time. See Rogers Op. at 4.
(Though most teachers would likely doubt the wisdom of
calling a score of 80% “overwhelming.”) On the other hand,
8
as Judge Randolph argues, it’s certainly hard to say that
there’s “an unbroken, uncontradicted history” of public access
when 20% of the cases were heard privately. See Randolph
Op., Part II, at 12. Both positions seem reasonably grounded
in the Court’s precedents, but obviously both can’t be right.
Luckily, however, nothing in this case requires us to guess at
how to resolve that troublesome issue, so it is enough for us to
note the questions left unanswered by the Court’s precedents.
Putting those doubts aside for a moment, at least one
thing is clear: If the experience-and-logic framework is to be
applied to Guantanamo habeas cases, at least the “logic”
part—whether public access would play a significantly
positive role in these proceedings—seems relatively easy.
Boumediene v. Bush (and the standing protective orders for
the Guantanamo cases) recognize that detainees litigating
these cases have a practical need for classified information to
contest the legality of their detention, see 553 U.S. 723, 784-
86 (2008), a premise that in light of Aamer v. Obama, 742
F.3d 1023 (D.C. Cir. 2014), extends to conditions of
detention. But as the intervenors themselves recognize, the
government could “oppose the disclosure of classified
material as privileged under the state secrets doctrine,”
Intervenors’ Br. at 35, and would have every reason to do so
in light of its national-security concerns. Judge Randolph’s
discussion of United States v. Reynolds, 345 U.S. 1 (1953),
and Totten v. United States, 92 U.S. 105 (1875), drives home
the point that the government could short-circuit the entire
Guantanamo habeas process by invoking that privilege and
thereby depriving detainees (and also the courts) of potentially
critical information. See Randolph Op., Part II, at 9-10, 14-
15. (Indeed, since the criteria to classify information as
“SECRET” appear to be more stringent than the privilege test
we articulated in Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir.
1978), it seems likely that the government could withhold any
information properly classified at that level.) It therefore
9
seems safe to say that disclosure would not play a positive
role in those proceedings; to the contrary, it might
substantially hollow them out, perhaps to the point of raising a
Suspension Clause question.
***
In short, then, under current understandings, choices as to
level of generality for the relevant proceedings (and between
proceedings and documents), and the scope of the relevant
historical inquiry, can easily be decisive, both in shifting the
burden of persuasive and in its rigor. Yet we have little
guidance from the Supreme Court, or indeed any other, as to
how to make those choices.
In this case, however, we can avoid these questions.
Even if we are to apply a higher level of generality (perhaps
habeas generally or even just civil matters) or to look to
relatively recent history, and even if doing so would show
experience and logic to lie on the intervenors’ side, it is of no
consequence—in view of our conclusion that the security
interests invoked by the government are compelling (and no
lesser remedy is available than preserving them from public
access). I therefore join with my colleagues in reversing the
district court.