https://www.justsecurity.org/39829/d-c-circuit-short-shrift-public-access-guantanamo-proceedings/
Any other year,
the D.C. Circuit’s March 31 decision in Dhiab v. Trump would have probably received a lot more
attention–especially in suggesting that the media (and, through it, the public)
may not have a First Amendment right of public access to habeas proceedings
such as the Guantánamo detainee litigation. I can’t speak for others, but I
finally got around to reading it over the weekend–and came away more than a
little perplexed. The bottom line is simple enough: The Court of Appeals
reversed orders by the district court that would have required the public
disclosure of approximately 30 videotapes of the government forcibly
extracting hunger-striking detainees from their cells and force-feeding them.
But each of the three panel members (Judges Randolph, Rogers, and
Williams) wrote separately to explain why. Because there are three different rationales, there’s no
controlling opinion on the central question of when (if ever) the First Amendment
creates a qualified right of public access to such information. But given that
public access has already been a big issue in the Guantánamo military
commissions, there’s
every reason to believe this won’t be the last time the subject comes before
the Court of Appeals–and, as such, every reason to explain just how little
precedential weight the Dhiab
ruling will (and should) receive.
I. The Issue
As folks may
recall, the Dhiab
litigation came to a head with a series of rulings by Judge Kessler in 2014 and
2015, including an October 2014 decision granting a request by various media organizations to
unseal redacted versions of videotapes arising out of forcible cell extractions
(FCEs) of hunger-striking detainees in order to force-feed them. Judge
Kessler’s October 2014 ruling is worth reading in full, but in a nutshell, it
concluded as follows:
1. Following an
earlier ruling by Judge Hogan in a detainee case, that the qualified First
Amendment right of public access to judicial proceedings articulated by the
Supreme Court in Press-Enterprise
II applies to Guantánamo habeas petitions;
2. That the
fact that the relevant information is classified doesn’t bear on whether there
is a right of access ab initio,
but rather on whether the government has carried its burden to overcome the
right of public access;
3. That,
once the right of public access applies, courts can and should still use
“narrowly tailored measures to protect compelling interests, like the
safeguarding of sensitive information”;
4. That,
applying such narrow tailoring, “when the sealed facts are already public,
maintaining documents under seal is only appropriate when, despite what the
public already knows, the documents’ release would still give rise to a substantial probability of harm”; and
5. That release
of the videotapes, subject to certain redactions, would not give rise to a substantial
probability of harm on their own.
Thus, Judge
Kessler ruled, once the parties agreed on the redactions she held to be
necessary, the videotapes could be released. The government’s initial effort to
appeal was dismissed for lack of jurisdiction, on the ground that, “unless and
until the district court approves
the Joint Proposal and orders the unsealing and release of the redacted
videotapes, the cat will remain comfortably in the bag.” Once that
happened, Judge Kessler eventually ordered the recordings unsealed on or
before January 11, 2016, but granted a stay pending the government’s appeal and
the media organizations’ cross-appeal, which is what produced the D.C.
Circuit’s March 31, 2017 ruling.
II. The Three Opinions
Each of the
three panel members wrote separately. In his opinion concurring in part and
concurring in the judgment, Judge Williams joined Part III of Judge Randolph’s
nominal opinion of the court, which held that, even if the qualified First Amendment
right of access applied, the government had carried its burden in showing that
keeping these videotapes sealed was “narrowly tailored” to vindicate the government’s
compelling interests. There are reasons to quibble with this analysis
(including Judge Randolph’s refusal to actually engage with Judge
Kessler’s explanations for why the government’s arguments weren’t narrowly tailored), but at
least it’s case-specific.
The real fight,
as it turns out, is over Part II of Judge Randolph’s opinion, which concluded,
apparently for only himself, that both Judge Kessler and Judge Hogan were
incorrect as a matter of first principles–that there is no qualified First Amendment right of
public access to habeas proceedings, including the Guantánamo litigation. To
give a flavor of Judge Randolph’s argument, here are some of the high points:
1. “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.”
2. The qualified
First Amendment right recognized in Press-Enterprise
II makes less sense in civil cases where the government is not the
moving party–analogizing to the state secrets privilege and the principle that
“plaintiffs suing the government civilly have no right of access to classified
information pertinent to the litigation.”
3. “In habeas
corpus cases, there is no tradition of public access comparable to that
recounted in Press-Enterprise II
with respect to criminal trials.”
4. “[T]here is
no tradition [in U.S. law] of publicizing secret national security information
involved in civil cases, or for that matter, in criminal cases. The
tradition is exactly the opposite.”
5. Thus, “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.”
Judge Rogers,
in contrast, vigorously disagreed with Judge Randolph, suggesting that his
First Amendment analysis wrongly conflated the rights of civil plaintiffs with the right of
the press (and,
through it, the public) to access judicial proceedings, and wrongly singled out
Guantánamo habeas proceedings from habeas cases, more generally. In her words:
1. “The
distinction drawn by the Court [between access to classified information in
civil vs. criminal proceedings] 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.”
2. Contra Judge
Randolph’s analysis of historical habeas practice in England, “there was a
well-settled expectation that habeas proceedings would be open to the public
when the courts were in session.”
3. The Press-Enterprise II test should be
applied to the general type of proceedings, and not a specific subset of
cases–“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.”
4. “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?”
Finally, Judge
Williams ends up somewhere between Judges Randolph and Rogers on whether
there’s a First Amendment right in the first place, suggesting that “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,” but
emphasizing that there’s no need to resolve the issue in Dhiab because of his agreement with
Judge Randolph that, even if there is
such a right, the government had met its burden to overcome it.
III. The Implications
I’m sure it
won’t surprise the two of you who have made it this far to learn that I
find Judge Rogers’s analysis far more persuasive on whether there
even is a First Amendment
right of public access to habeas proceedings. First, and most importantly, I
think she is unquestionably right that the right has to be defined at a level
of generality–where the question is access to habeas proceedings in general,
and not habeas proceedings by particular classes of prisoners, specifically.
The Supreme Court itself has applied one rule to preliminary hearings in
criminal cases, even though there are widely different features to such
proceedings in different states (and the federal system). So too, here.
That actually does most of the work in responding to Judge Randolph, because
virtually all of his arguments against
such a First Amendment right are national security-specific (and therefore make
more sense as providing the compelling interest sufficient to overcome the assertion of the right).
Second, even if
you’re not convinced by the level-of-generality point, Judge Rogers also
(rightly, in my view) highlights those features of habeas petitions that more
closely resemble criminal cases as opposed to ordinary civil ones. Thus, as she
notes while quoting from various Supreme Court opinions, “[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. Because the writ of habeas corpus is an important part of our
Constitution and a ‘vital instrument for the protection of individual liberty,’
the public’s qualified right to informed discussion about its government would
apply no less in these proceedings.” Thus, to cut to the chase, it seems to me
that there’s just no question that there ought to be a qualified First
Amendment right of public access to habeas proceedings, especially in the
executive detention context–and that all of the work should instead focus on
whether the government can carry its burden for overcoming assertions of that
right, and closing the relevant aspects of the proceedings,
including keeping videotapes such as those at issue in Dhiab under seal. Judge Randolph
disagrees, but, thanks to Judge Williams, writes only for himself on the key
point.
*
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Why does all of
this matter? First, and most significantly, it’s not terribly hard to fathom
how public access to Guantánamo habeas cases could once again become an issue,
especially when (not if) the Trump administration sends new detainees to Cuba.
But public access has also already been a significant issue before the
Guantánamo military commissions–especially in the context of the 9/11 trial.
Although some of those cases will reach the D.C. Circuit on post-conviction
appeal (where it’s possible that even Judge Randolph would concede that the
First Amendment right of public access applies), some already have arisen via
habeas–and others likely will down the road. When that happens, it will be
crucial for those courts to recognize that (1) there’s no controlling opinion
in Dhiab on whether there
even is a qualified First
Amendment right of public access to such proceedings; and (2) as a matter
of first impression, there are compelling reasons why there should be–even if
it can and should be overcome in individual cases.
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