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Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
ZAYN ABIDIN MUHAMMAD
HUSAYN (ISN 10016),
Petitioner.
ROBERT GATES,
Respondent.
No. 08-CV-1360
MEMORANDUM LAW SUPPORT MOTION
INTERVENE AND UNSEAL RAYMOND BONNER
David Schulz
Jonathan Manes
Steven Lance (law student intern)
Andrew Udelsman (law student intern)
Beatrice Walton (law student intern)
Media Freedom Information Access Clinic
Abrams Institute
Yale Law School
P.O. Box 208215
New Haven, 06520
Phone: 212-850-6103
Fax: 212-850-6299
Chad Bowman
Levine Sullivan Koch Schulz, LLP
1899 Street, NW, Suite 200
Washington, 20036
Phone: 202-508-1100
Fax: 202-861-8988
Counsel for Movant Raymond Bonner
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
TABLE CONTENTS
TABLE AUTHORITIES ..........................................................................................................
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND .............................................................................................................................2
The Substantial Public Interest This Proceeding .............................................................3
The Sealed Records Issue ................................................................................................5
Previous Press Intervention This Proceeding ..................................................................7
ARGUMENT ...................................................................................................................................8
BONNER HAS RIGHT INTERVENE
ENFORCE THE RIGHT ACCESS JUDICIAL RECORDS ..................................8
II.
THERE QUALIFIED FIRST AMENDMENT RIGHT ACCESS THIS PROCEEDING AND ITS RECORDS..........................................9
III.
The Constitutional Right Access
Applies Habeas Proceedings and Their Records ................................................9
The Constitutional Right Access Right Contemporaneous Access .................................................................11
THE MASSIVE SEALING THIS CASE
VIOLATES THE FIRST AMENDMENT RIGHT ACCESS .....................................12 Strict Constitutional Standard
Governs Any Limitation the Access Right ........................................................12
The Supreme Court has articulated
four-part test that must satisfied
order overcome the First Amendment right access ...........................12
The Government does not carry its burden merely
asserting that judicial record contains classified information .................14
The Long-Term, Open-Ended Sealing
Records This Case Improper and Unjustifiable .............................................18
The challenged sealings and redactions are procedurally improper ..........19
The challenged sealings and redactions are unjustifiable ..........................19
CONCLUSION .............................................................................................................................
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
TABLE AUTHORITIES
Cases
Ameziane Obama,
699 F.3d 488 (D.C. Cir. 2012) .................................................................................................26 Application Newsday, Inc.,
895 F.2d (2d Cir. 1990).........................................................................................................9
Ashworth Bagley,
351 Supp. 786 (S.D. Ohio 2005) ....................................................................................11
Associated Press U.S. Dist. Court,
705 F.2d 1143 (9th Cir. 1983) .....................................................................................11, 13,
Ctr. for Nat Sec. Studies U.S. Dep Justice,
331 F.3d 918 (D.C. Cir. 2003) (Tatel, J., dissenting) ..............................................................15
Dhiab Obama, Supp. 486, 492 (D.D.C. 2014) .......................................................9, 12, 15, 18, 20,
EEOC Nat Children Ctr., Inc.,
146 F.3d 1042 (D.C. Cir. 1998) .................................................................................................8
Gabrion United States,
No. 1:15-CV-447 (2015 2354745 (W.D. Mich. May 15, 2015) .......................................10
Globe Newspaper Co. Pokaski,
868 F.2d 497 (1st Cir. 1989) ....................................................................................................11
Globe Newspapers Co. Superior Court,
457 U.S. 596 (1982) ...............................................................................................................8,
Grove Fresh Distrib., Inc. Everfresh Juice Co., F.3d 893 (7th Cir.1994) ......................................................................................................12 Guantanamo Bay Detainee Litig.,
630 Supp.2d (D.D.C. 2009) ................................................................................................9
Halperin Kissinger,
606 F.2d 1192 (D.C. Cir. 1979) .........................................................................................16,
Harris Nelson,
394 U.S. 286 (1969) .................................................................................................................11
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Hartford Courant Co. Pellegrino,
380 F.2d (2d Cir. 2004).......................................................................................................10 The Herald Co.,
734 F.2d (2d Cir. 1982)...........................................................................................13, 14,
Husayn Poland,
Application No. 7511/13, Judgment 123 (Eur. Ct. H.R. July 24, 2014)....................................4
Joint Anti-Fascist Refugee Comm. McGrath,
341 U.S. 123 (1951) ...........................................................................................................17, Knight Publ Co.,
743 F.2d 231 (4th Cir. 1984) .....................................................................................................8
Lugosch Pyramid Co. Onondaga,
435 F.3d 110 (2d Cir. 2006).........................................................................................10, 11, N.Y. Times Co.,
828 F.2d. 110 (2d Cir. 1987)..............................................................................................10,
N.Y. Times Co. DOJ,
756 F.3d 100 (2d Cir. 2014)...............................................................................................17,
N.Y. Times Co. United States,
403 U.S. 713 (1971) .................................................................................................................15
Nebraska Press Ass Stuart,
427 U.S. 529 (1976) .................................................................................................................11
Newman Graddicki,
696 F.2d 796 (11th Cir. 1983) .................................................................................................10
Omar Harvey,
514 Supp. (D.D.C. 2007) ...........................................................................................11
Osband Ayes,
2007 3096113 (E.D. Cal. Oct 22, 2007) ...........................................................................11
Phoenix Newspapers, Inc. U.S. Dist. Ct. for the Dist. Ariz.,
156 F.3d 940 (9th Cir. 1998) ...................................................................................................14
Ray Turner,
587 F.2d 1187 (D.C. Cir. 1978) ...............................................................................................17
Richmond Newspapers Inc. Virginia,
448 U.S. 555 (1980) .............................................................................................................9,
iii
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Shelton Tucker,
364 U.S. 479 (1960) .................................................................................................................13
Shingara Skiles,
420 F.3d 301 (3d Cir. 2005).......................................................................................................8
Union Oil Co. Leavell,
220 F.3d 562 (7th Cir. 2000) ...................................................................................................15
United States Antar, F.3d 1348 (3d. Cir. 1994)....................................................................................................13
United States Aref,
533 F.3d (2d Cir. 2008).......................................................................................................17
United States Erie Cnty.,
763 F.3d 235 (2d Cir. 2014).....................................................................................................10
United States Poindexter,
732 Supp. 165 (D.D.C. 1990) ..............................................................................................16
United States Rosen,
487 Supp. 703 (E.D. Va. 2007) ......................................................................................16
United States Simone, F.3d 833 (3d Cir. 1994).......................................................................................................11 Wash. Post Co.,
807 F.2d 383 (4th Cir. 1986) .............................................................................9, 13, 14, 16,
Wash. Post Co. Robinson,
935 F.2d 282 (D.C. Cir. 1991) ......................................................................................... passim
Statutes
Classified Information Procedures Act, U.S.C., App. (2000)................................................16
Other Authorities
Raymond Bonner, The CIA Secret Torture, N.Y. Rev. Books (Jan. 11, 2007),
http://www.nybooks.com/articles/2007/01/11/the-cias-secret-torture .......................................2
Raymond Bonner, Incommunicado Forever: Gitmo Detainee Case Stalled For
2,477 Days And Counting, ProPublica (May 12, 2015, 6:00 AM),
https://www.propublica.org/article/guantanamo-detainee-case-stalled-for2477-days-and-counting ............................................................................................................2
Hearing Before the Select Comm. Intelligence, 111th Cong. (statement
General James Clapper), http://fas.org/irp/congress/2010_hr/clapper.pdf ..............................24
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Fred Kaplan, Obama Secrecy Problem, Slate, (Apr. 15, 2016 10:48 AM),
http://www.slate.com/articles/news_and_politics/war_stories/2016/04/obama_
says_too_much_information_is_classified_irony_alert.html ..................................................26 Macaskill Dance, NSA Files Decoded, Guardian (Nov. 2013) (massive
scale the NSA collection citizen telephone and email data kept from
the American public through classification),
http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsafiles-surveillance-revelations-decoded ....................................................................................18
Office Legal Counsel, Memorandum for John Rizzo, Acting General Counsel the Central Intelligence Agency: Interrogation Qaeda Operative,
(Aug. 2002). ...........................................................................................................................3 Select Comm. Intelligence, Committee Study the Central Intelligence
Agency Detention and Interrogation Program, Executive Summary
(declassified and released Dec. 2014) ....................................................................................3
Stephen Schullhoffer, Access National Security Information under the U.S.
Freedom Information Act, .................................................................................................17
Verbatim Transcript Combatant Status Review Tribunal Hearing for ISN
10016 (Mar. 27, 2007) ........................................................................................................21
The White House Office the Press Secretary, Press Conference the
President, (Apr. 29, 2009), https://www.whitehouse.gov/the-pressoffice/news-conference-president-4292009 ...............................................................................3
The White House Office the Press Secretary, Statement the President:
Report the Senate Select Committee Intelligence (Dec. 2014),
https://www.whitehouse.gov/the-press-office/2014/12/09/statement-presidentreport-senate-select-committee-intelligence ..............................................................................3
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
PRELIMINARY STATEMENT
This habeas proceeding was brought Zayn al-Abidin Muhammad Husayn more
commonly known Abu Zubaydah Zubaydah who currently being detained the U.S.
military base Guantanamo Bay, Cuba. Zubaydah the first individual alleged have been
subjected torture the CIA the aftermath 9/11, the direct approval high-ranking
government officials. The U.S. Government has now held Zubaydah without charge for more
than fourteen years, during which time his capture, treatment, and continued confinement have
been the subject numerous investigations and reports, including international tribunals,
human rights groups, and the U.S. Senate.
Zubaydah filed petition for writ habeas corpus 2008 challenge his continuing
confinement. However, more than eight years later, virtually none the motions has filed
connection with this proceeding have been ruled and virtually the entire docket remains
unavailable for public inspection. The systematic, open-ended denial access the court
records this proceeding plainly violates the public First Amendment right access.
Journalist Raymond Bonner Bonner now seeks permission intervene for the limited
purpose enforcing the public access right and unsealing the court records this case.
Though nearly the entire docket unavailable for public inspection, Bonner seeks gain
access those records most relevant furthering the public understanding the competing
claims being made this proceeding. Specifically, Bonner seeks access to: (a) twenty-eight
records that have never been made available the public whole part, but which not
appear have ever been sealed the court, including two court orders and six parte filings;
(b) six records that have been sealed the court; and (c) unredacted copy the
Government factual return. Each these records subject the public constitutional right
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page access, yet far can determined from the docket, the Government has made
demonstration that proper basis exists keep these records from the public.
BACKGROUND
This motion for access judicial records brought Raymond Bonner, Pulitzer
Prize-winning investigative journalist and author with over years professional experience.
Bonner Decl. Throughout his career, Bonner has reported and written for major publications,
including the New York Times, New Yorker, Atlantic, New York Review Books, and New York
Times Book Review. Id. currently contributing writer for ProPublica, independent,
non-profit, online newsroom based New York. Id. Bonner has written extensively about
international security, the U.S. War Terror, the treatment terrorist suspects the aftermath 9/11, and U.S. detention practices Guantanamo Bay, Cuba. Id.
Bonner has closely followed this habeas proceeding. ProPublica and Politico recently copublished article Bonner regarding the status this habeas proceeding and Zubaydah
detention.1 This article raised questions about the extreme delay resolving Zubaydah
petition, which has been pending now for more than seven years with virtually movement.
The article noted that important, substantive documents this case remain entirely unavailable the public and the majority Zubaydah motions have not been resolved. Id.
Raymond Bonner, Incommunicado Forever: Gitmo Detainee Case Stalled For 2,477 Days
And Counting, ProPublica (May 12, 2015, 6:00 AM),
https://www.propublica.org/article/guantanamo-detainee-case-stalled-for-2477-days-andcounting.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
The Substantial Public Interest This Proceeding
According public, U.S. government documents, Zubaydah has been held U.S.
custody since 2002.2 While CIA custody between 2002 and 2006, was subjected
interrogation methods which the President has now banned torture, and which the
Chairman the Senate Select Committee Intelligence has characterized torture under any
common meaning the term. Zubaydah was the test subject these controversial methods
two senses: was the first detainee physically experience them, and was the prototypical
example the Office Legal Counsel relied upon argue that the methods themselves were
legal.5
The Government has acknowledged that Zubaydah was captured Faisalabad, Pakistan, March 28, 2002, raid conducted Pakistani government authorities, working with the
CIA. SSCI Report, Executive Summary 21; see DOJ Report 67. Zubaydah was shot and
wounded during the raid. Id. Shortly thereafter, was rendered from Pakistan secret facility
U.S. Dep Justice, Off. the Inspector General, Review the FBI Involvement and
Observations Detainee Interrogations Guantanamo Bay, Afghanistan, and Iraq (2008)
[hereinafter DOJ Report
Office the Press Secretary, Press Conference the President, The White House (Apr. 29,
2009), https://www.whitehouse.gov/the-press-office/news-conference-president-4292009; see
also The White House Office the Press Secretary, Statement the President: Report the
Senate Select Committee Intelligence (Dec. 2014), https://www.whitehouse.gov/the-pressoffice/2014/12/09/statement-president-report-senate-select-committee-intelligence. Select Comm. Intelligence, Committee Study the Central Intelligence Agency
Detention and Interrogation Program, Foreword (declassified and released Dec. 2014)
[hereinafter SSCI Report
See generally Office Legal Counsel, Memorandum for John Rizzo, Acting General Counsel
for the Central Intelligence Agency: Interrogation Qaeda Operative, U.S. Dep Justice,
(Aug. 2002).
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page Thailand controlled the CIA.6 was subsequently rendered other secret facilities
Poland and elsewhere abroad. Zubaydah Poland 164-66.
During his detention secret CIA prisons, Zubaydah was used the first test subject for
the CIA torture-based interrogation methods, Zubaydah Poland 163; see SSCI Report,
Executive Summary 46; see also id. (CIA use SERE-school techniques modeled after
North Vietnamese physical torture was subjected suffocation waterboarding least times. SSCI Report 118 n.698. This treatment caused Zubaydah become completely
unresponsive, with bubbles rising through his open, full mouth. Id. 43-44. various times
during his CIA detention, Zubaydah was kept nude, id. 29, deprived sleep, id., placed
stress positions, id. 42, locked confinement boxes for over 290 hours, id., slapped and
grabbed the face, id. 41, shackled and hooded, id. 40, harassed with around-the-clock
bright light and loud noise music, id. 464, slammed against walls, id. 40-41, denied
access solid food, id. 493, subjected forcible rectal fluid resuscitation, id. 488, and
threatened with harm members his family, id. 487. Zubaydah lost his left eye while
CIA custody. Id. 491.
Although mistaken intelligence once led U.S. agencies miscast Abu Zubaydah
senior al-Qa ida lieutenant, id. 430, the Government longer contends that was even
member Al-Qaeda, id. 410. result the CIA mistaken premise that Zubaydah was
senior Al-Qaeda operative, Zubaydah was subjected ordeal with perhaps precedent
U.S. history. See SSCI Report, Executive Summary 31. Despite his severe interrogations,
Zubaydah never provided any information related impending terrorist attack and the CIA
ultimately concluded [that] this was information Abu Zubaydah did not possess. Id. 31.
Case Husayn (Abu Zubaydah) Poland, Application No. 7511/13, Judgment 123 (Eur. Ct.
H.R. July 24, 2014) [hereinafter Zubaydah Poland]; cf. SSCI Report 22-23.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Zubaydah was held the CIA from 2002 until was transferred the custody the
Department Defense September 2006. Id. 46. Since then, Zubaydah has been detained the military detention facility the U.S. Naval Station Guantanamo Bay. Zubaydah
Poland 189. Even after years U.S. custody, Zubaydah has never been charged with any
crime. The current habeas action represents Zubaydah attempt procure judicial review his
indefinite detention.
The Sealed Records Issue
Zubaydah brought his petition for writ habeas corpus Petition August 2008,
Dkt. shortly after the Supreme Court held Boumediene Bush that Guantanamo detainees
are entitled the fundamental procedural protections habeas corpus. 553 U.S. 723, 771
(2008). Zubaydah Petition was sealed its entirety the outset. Dkt Since then, the
Government and Zubaydah have litigated issues related discovery, the designation
classified information, and allegedly illegal activity the CIA. Yet, the vast majority both
parties substantive filings are either sealed otherwise administratively unavailable for public
viewing.
The governing Protective Order creates special procedures for filing records the public
docket this case. Jan. 2009 Order, Dkt. 78. Both parties must initially submit their filings
under seal Court Security Officer CSO and enter Notice filing the ECF docket
that informs the Court and the public that motion has been filed, but does not include any
substantive information other than brief description the motion contents. Dkt. 48,
49(a). The CSO then required forward the sealed record the appropriate government
agencies screen for classified protected information. Dkt. 48(a). Upon
completion the classification review, the agencies must post the record its entirety ECF,
unless the agencies determine that the record contains classified protected information,
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
which case the CSO and agencies work together prepare redacted version for public filing.
Id. the entire document classified, the parties are directed add new entry the docket
announcing that determination. Id. 48(b). Thus, regardless the outcome the
classification review, the docket should indicate the completion and outcome the review.
While the Protective Order does not specify how long the agencies have conduct this
classification review, requires that version the pleading document appropriate for
the public record filed [a]s soon practicable following the original filing date. Dkt.
49(a), 50(a).
There are currently least substantive records that apparently have never been
reviewed for their classification status, some filed long eight years ago, Bonner Decl. 1112. These include six records that the Government has filed parte and camera, whose
status unknown, but which are also unavailable the docket. Id. 11. additional six
documents are listed the docket SEALED, indicating that they apparently have been
sealed pursuant court order. Dkts. 191, 203, 275, 287, 300. Some documents that have
been made publicly available are riddled with redactions, without explanation for the basis the
redactions, including significantly the Government Factual Returns. See Dkt. 204.
The public record contains findings fact other explanation for the wholesale
sealing records from public view. This blanket sealing prevents the public from understanding
what allegations Zubaydah has made, the Government responses, the reasons for complete
judicial inaction. Through this motion, Bonner seeks unseal nineteen records that are listed
the docket Noticed, but which have never been released substance, two classified court
orders, six parte filings the Government, and records that have been sealed. also asks
the Court review the many redactions the public version the Government Factual
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Return that purports justify Zubaydah continuing confinement. These records are all subject the public constitutional and common law rights access, and the Government has shown proper basis for limiting those rights. the alternative, Mr. Bonner respectfully requests this
Court make factual findings the public record justifying the bases for denying access with
sufficient particularity enable appellate review.
Previous Press Intervention This Proceeding
This not the first time that members the press have sought access the records
this proceeding. 2009, the Associated Press, New York Times, and USA Today (the Press
Interveners sought intervene for the limited purpose opposing motion the
Government designate all information its factual returns all Guantanamo proceedings
protected from public disclosure. See Mot. Intervene, Dkt. 90. Then Chief Judge Hogan
granted both the intervention motion, Minute Order Apr. 2009, and Press Interveners
substantive request for relief, requiring the Government justify the court its basis for
seeking seal any unclassified information. Order, Dkt. 173 19. direct relevance Mr. Bonner current motion for access, Chief Judge Hogan held
both that (a) the press had standing intervene and enforce public access rights, and (b) the First
Amendment and common law access rights apply the judicial records this habeas
proceeding. See Dkt. 173 11, 17, 18-19. This ruling constitutes law the case. his earlier
decision, Chief Judge Hogan rejected the Government attempt[] broadly designate
unclassified information protected and subject sealing. Id. That decision stresses the
critical importance and relevance habeas proceedings the public, and underscores that
publicly disclosing records from the Guantanamo proceedings would enlighten the citizenry and
improve perceptions the proceedings fairness. Id. 15.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
The Press Interveners that earlier proceeding did not challenge provisions the
Protective Order that allow classified information submitted the court sealed the first
instance, objecting that time only the Government request seal unclassified material.
See id. Judge Hogan thus did not choose[] question, generally, government
determinations that providing classified information the public would cause serious damage
national security. Id. 16. His decision, however, does not foreclose scrutiny the
Government classification determinations and whether they justify sealing specific court
records the issues now presented this motion.
ARGUMENT
BONNER HAS RIGHT INTERVENE
ENFORCE THE RIGHT ACCESS JUDICIAL RECORDS was recognized earlier this case, members the news media have standing
enforce the right public access judicial records, and right heard their sealing. See
Dkt. 173 11, 17, 18-19; Shingara Skiles, 420 F.3d 301, 305 (3d Cir. 2005) (granting
newspaper motion vacate protective order that can report the news The Supreme
Court has repeatedly held that representatives the press and general public must given
opportunity heard the question their exclusion from judicial proceedings. Globe
Newspapers Co. Superior Court, 457 U.S. 596, 609 n.25 (1982) (internal quotation marks and
citations omitted); see also Knight Publ Co., 743 F.2d 231, 234 (4th Cir. 1984) (same).
This right heard undeniably extends the sealing court records. See Wash. Post Co.
Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (in safeguarding the First Amendment access
right, courts must promptly allow interested persons opportunity heard motion
seal).
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Intervention the appropriate procedural vehicle for journalists vindicate public
access rights. [E]very circuit court that has considered the question has come the conclusion
that nonparties may permissively intervene for the purpose challenging confidentiality
orders. EEOC Nat Children Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998); see also Application Newsday, Inc., 895 F.2d 74, 75, (2d Cir. 1990); Wash. Post Co., 807
F.2d 383, 388 n.4 (4th Cir. 1986).
Movant Raymond Bonner the proper party assert the access right because
professional journalist who being harmed the massive sealing records this case.
Because Bonner lack access these court records prevents him from publishing about this
case, suffering from the denial public access these proceedings and therefore has
standing intervene. See Guantanamo Bay Detainee Litig., 630 Supp.2d (D.D.C.
2009) (Dkt. 173 4). This Court should therefore grant Bonner leave intervene for the limited
purpose enforcing the public access right. See United States Moussaoui, Fed. Appx. 881,
885, 891 (4th Cir. 2003) (granting news coalition motion intervene for limited purpose
obtaining access certain records).
II.
THERE QUALIFIED FIRST AMENDMENT RIGHT ACCESS THIS PROCEEDING AND ITS RECORDS
The Constitutional Right Access
Applies Habeas Proceedings And Their Records
The First Amendment express guarantees free speech, freedom the press, and the
right petition the government carry with them implicit right public access particular
government information. Dhiab Obama, Supp. 486, 492 (D.D.C. 2014), citing
Richmond Newspapers Inc. Virginia, 448 U.S. 555, 575-76 (1980). This right access
based upon the common understanding that major purpose [the First] Amendment was
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
protect the free discussion government affairs ensure that the individual citizen can
effectively participate and contribute our republican form self-government. Globe
Newspaper Co. Superior Court, 457 U.S. 596, 604 (internal quotation marks and citations
omitted).
The Supreme Court has developed so-called experience and logic test determine
where the constitutional access right applies. Press-Enterprise II, 478 U.S. Under the twopart test, the constitutional right access attaches government proceeding the place and
the process have historically been open the press and general public and public access plays significant positive role the function the particular process. 478 U.S. 7-8 (experience
and logic confirm right access pre-trial hearing); see also Press-Enterprise 464 U.S
505-10 (experience and logic confirm access right jury voir dire).
Once the right determined apply type government proceeding, the right
necessarily extends those records that are fundamental the proceeding. See, e.g., Hartford
Courant Co. Pellegrino, 380 F.2d 83, (2d Cir. 2004) [D]ocket sheets enjoy presumption openness and the public and the media possess qualified First Amendment right inspect
them Lugosch Pyramid Co. Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (applying the
constitutional access right motion papers and documents submitted substantive motions); N.Y. Times Co., 828 F.2d. 110, 113-14 (2d Cir. 1987) (pretrial motions papers). now
firmly settled that wherever the right attaches, [t]he first amendment guarantees the press and
the public general right access court proceedings and court documents unless there are
compelling reasons demonstrating why cannot observed. Robinson, 935 F.2d 287.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page has already been determined that the First Amendment access right extends the
records filed this habeas proceeding.7 Order, Dkt. 173, 11. See also, e.g., Newman
Graddick, 696 F.2d. 796, 801 (11th Cir. 1983) (applying the First Amendment right access
proceedings challenging conditions confinement Osband Ayes, 2007 3096113, (E.D. Cal. Oct 22, 2007) (applying constitutional right habeas proceeding). Judge Hogan
recognized that disclosure the factual returns would play significant positive role and
would benefit both parties because [t]he government detention decisions would gain the
legitimacy that accompanies transparency. Dkt. 173, 16; see also, Nebraska Press Ass
Stuart, 427 U.S. 539, 587 (1976) (Brennan, J., concurring) Secrecy judicial action can only
breed ignorance and distrust courts and suspicion concerning the competence and impartiality judges Indeed, openness improves the functioning habeas proceedings all the same
ways improves other trial-type proceedings, and especially important the habeas context
where individual liberty stake. See Omar Harvey, 514 Supp. 74, (D.D.C.
2007) There higher duty court, under our constitutional system, than careful
processing and adjudication petitions for writs habeas corpus. (quoting Harris Nelson,
394 U.S. 286, 292 (1969)).
The Constitutional Right Access Right Contemporaneous Access
The Court Appeals has long stressed the critical importance contemporaneous
access court records. Robinson, 935 F.2d 287. The access right attaches soon
Courts have also upheld access habeas records under common law which provides
independent basis for relief. See Gabrion United States, No. 1:15-CV-447, 2354745, (W.D. Mich. May 15, 2015) (applying common law right); Ashworth Bagley, 351 Supp. 786, 792 (S.D. Ohio 2005) (same). Because the First Amendment right applies, and more
protective than the common law, the Court need not separately consider the common law right.
United States Erie Cnty., 763 F.3d 235, 241 (2d Cir. 2014).
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
document filed with the court, and even short delays can violate the access right. See, e.g.,
United States Simone, F.3d 833, 842 (3d Cir. 1994) (ten-day delay release transcript
violates access right); Globe Newspaper Co. Pokaski, 868 F.2d 497, 507 (1st Cir. 1989) even one two day delay impermissibly burdens the First Amendment Associated Press U.S.
Dist. Court, 705 F.2d 1143, 1147 (9th Cir. 1983) (48 hour delay public release filed
documents violates the access right); see also Lugosch, 435 F.3d 126-27 loss First
Amendment freedoms, for even minimal periods time, unquestionably constitutes irreparable
injury (internal citations omitted).
Undue delays affording access court records are also inconsistent with the media
traditional function bringing news the public promptly. Neb. Press Ass Stuart, 427
U.S. 529, 560-61 (1976). the Seventh Circuit has explained: The newsworthiness
particular story often fleeting. delay postpone disclosure undermines the benefit
public scrutiny and may have the same result complete suppression. Grove Fresh Distrib.,
Inc. Everfresh Juice Co., F.3d 893, 897 (7th Cir.1994) (internal citations omitted).
III.
THE MASSIVE SEALING THIS CASE
VIOLATES THE FIRST AMENDMENT RIGHT ACCESS Strict Constitutional Standard
Governs Any Limitation The Access Right
The Supreme Court has articulated four-part test that must satisfied
order overcome the First Amendment right access.
The Government carries heavy burden seal the judicial record and defeat the
public qualified right access. Dhiab, Supp. 496. series decisions defining
the scope the access right, the Supreme Court identified four standards that govern any request limit the constitutional access right.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
First, the party seeking deny access must establish substantial probability that
openness will cause harm compelling interest. See, e.g., Richmond Newspapers, 448 U.S.
581; Press-Enterprise 464 U.S. 510; Press-Enterprise II, 478 U.S. 13-14; Robinson, 935
F.2d 287. Press-Enterprise the Supreme Court stressed that denial access
permissible only when essential preserve higher values. 464 U.S. 510. PressEnterprise held specifically that reasonable likelihood harm standard not
sufficiently protective the access right, and directed that substantial probability standard
must applied. 478 U.S. 14-15. See, e.g., Wash. Post Co., 807 F.2d 392-93 (requiring
substantial probability harm national security close hearing); Robinson, 935 F.2d
290-92 (requiring substantial probability harm defendant seal plea agreement);
United States Antar, F.3d 1348, 1359-60 (3d. Cir. 1994) (requiring substantial probability harm jurors seal voir dire transcript).
Second, there must alternative that can adequately protect the threatened interest. trial judge must consider alternatives and reach reasoned conclusion that closure
preferable course follow safeguard the interests issue. The Herald Co., 734 F.2d
93, 100 (2d Cir. 1982). See also, e.g., Press-Enterprise II, 478 U.S. 13-14 (faulting the
California Supreme Court for fail[ing] consider whether alternatives short complete
closure hearing existed).
Third, any restriction access must narrowly tailored. Even legitimate and
substantial governmental interests cannot pursued means that broadly stifle fundamental
personal liberties, when the end can more narrowly achieved. Shelton Tucker, 364 U.S.
479, 488 (1960). Thus, where adequate alternative closure sealing exists, any limitation
imposed public access must broader than necessary protect the threatened interest.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
See, e.g., Press-Enterprise II, 478 U.S. 13-14; Robinson, 935 F.2d 287; Lugosch, 435 F.3d 124.
Fourth, any order limiting access must effective protecting the threatened interest
for which the limitation imposed. The party seeking secrecy must demonstrate that closure
would prevent the harm sought avoided. Press-Enterprise II, 478 U.S. 14. particular, sealing order cannot stand the information sought kept confidential has already been
given sufficient public exposure. The Herald Co., 734 F.2d 101; see also Associated
Press U.S. Dist. Ct., 705 F.2d 1143, 1146 (9th Cir. 1983) (requiring substantial probability
that closure will effective protecting against the perceived harm (citation omitted)). court concludes that these four burdens have been met, remains the duty the
court make factual findings justify the limitation the constitutional right. See, e.g.,
Wash. Post Co., 807 F.2d 392 (requiring the court make specific factual findings before
sealing documents courtroom); Phoenix Newspapers, Inc. U.S. Dist. Ct. for the Dist.
Ariz., 156 F.3d 940, 949 (9th Cir. 1998) (same). Broad and general findings the trial court are not sufficient justify closure. N.Y. Times, 828 F.2d 116; see also Press-Enterprise II,
478 U.S. [C]onclusory assertion fair trial right cannot defeat the First Amendment
access right). Rather, the findings must specific enough that reviewing court can determine
whether the closure order was properly entered. Press-Enterprise 464 U.S. 510; see also,
Press-Enterprise II, 478 U.S. 13-14; The Herald Co., 734 F.2d 100; Associated Press,
705 F.2d 1147.
The Government does not carry its burden merely asserting that
judicial record contains classified information.
The same constitutional access right applies judicial records regardless their content,
even when the content classified. See, e.g., Washington Post, F.2d 392-93 (faulting the
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
district court for sealing classified affidavit without engaging the required constitutional
analysis). element the supreme law the land, the constitutional access right
necessarily supersedes any contrary law, rule, regulation, including Executive Order 13526
under which Executive Branch officers designate information classified. See, e.g., N.Y.
Times, 828 F.2d 110, 115 (2d Cir. 1987) [O]bviously, statute cannot override constitutional
right Therefore, where judicial record subject the constitutional access right contains
classified information, the court must make its own determination that the constitutional
standards are satisfied before public access the record may properly denied. See Bismullah,
501 F.3d 188 (citations omitted) (recognizing that [i]t the court, not the Government, that
has discretion seal judicial record, which the public ordinarily has the right inspect and
copy Judge Kessler explained Dhiab, Supp. 496, our responsibility,
judges, part our obligation under the Constitution, ensure that any efforts limit our
First Amendment protections are scrutinized with the greatest care.
While national security constitutes compelling interest sufficient require the
sealing judicial records, independent judicial assessment the need for secrecy remains
critically important. See N.Y. Times Co. United States, 403 U.S. 713, 719 (1971) (Black, J.,
concurring) The word security broad, vague generality whose contours should not
invoked abrogate the fundamental law embodied the First Amendment. accord Union Oil
Co. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) [D]isputes about claims national security
are litigated the open. Otherwise, uncritical deference vague, poorly explained
arguments for withholding broad categories information can quickly eviscerate the
principles openness government. Ctr. for Nat Sec. Studies U.S. Dep Justice, 331
F.3d 918, 937 (D.C. Cir. 2003) (Tatel, J., dissenting).
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Case law federal courts under the Classified Information Procedures Act, U.S.C.,
App. (2000) CIPA confirms that the fact classification does not automatically trump the
constitutional access right.8 CIPA does not purport override the requirements the First
Amendment with respect public access criminal prosecution nor could it. See, e.g.,
United States Rosen, 487 Supp. 703, 710, 716-17 (E.D. Va. 2007) statute cannot
defeat constitutional right and government ipse dixit that information damaging
national security not sufficient close the courtroom doors the Fourth Circuit aptly
noted applying CIPA procedures:
[T]he mere assertion national security concerns the Government
not sufficient reason close hearing deny access documents.
Rather, [courts] must independently determine whether, and what
extent, the proceedings and documents must kept under seal.
United States Moussaoui, App 881, 887 (4th Cir. 2003) (unpublished) (citations
omitted). Thus, seal classified information where CIPA involved, the government must still
make sufficient showing that disclosure the information sought would impair identified
national interests substantial ways, and the court must conduct independent review
determine that closure narrowly tailored protect national security. United States Aref,
533 F.3d 72, 82-83 (2d Cir. 2008); Wash. Post, 807 F.2d 393 (district court not excused
under CIPA from making the appropriate constitutional inquiry United States Poindexter,
CIPA, inter alia, permits closed hearing determine the use, relevance, and admissibility
classified information trial, id. judge determines classified information needed,
and the Government does not object its introduction, CIPA allows the information
admitted into evidence public proceeding, even though remains fully classified. Id.
the Government does object introduction the classified evidence, CIPA requires the
Government either declassify the information, propose adequate evidentiary alternatives.
Id. 6(c). fails so, CIPA directs the court impose sanctions the Government for
preventing the use the needed classified information. Id. 6(e). These CIPA provisions
recognize that the Executive may not simply require court close proceeding seal
record because contains classified information.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
732 Supp. 165, 167 n.9 (D.D.C. 1990) CIPA obviously cannot override constitutional right access.
Careful judicial enforcement the access right particularly important given the welldocumented practice classifying confidential much relatively innocuous noncritical
information. Halperin Kissinger, 606 F.2d 1192, 1204 n.77 (D.C. Cir. 1979) (explaining that
the court cannot conclude automatically that revelation all top secret documents will
endanger national security aff equally divided court, 452 U.S. 713 (1981). Many
studies have concluded that great deal information whose disclosure would entirely
harmless nonetheless classified the government. These studies suggest that this amounts between 50%9 and 90%10 classified information being not properly classified. Members
Congress specifically cited the proclivity for overclassification the reason for requiring
novo judicial review FOIA cases guard against the potential for mischief and criminal
activity under the cloak secrecy when national security asserted the basis keep
information from the public. Ray Turner, 587 F.2d 1187, 1209 (D.C. Cir. 1978) (quoting
Source Book: Legislative History, Texts and Other Documents (Comm. Print 1975) 460-61).
Indeed, instances classification made excess authority conceal unlawful
behavior prevent embarrassment are well documented. See, e.g., Joint Anti-Fascist Refugee
Comm. McGrath, 341 U.S. 123, 139-40 (1951); Griswold, Secrets Not Worth Keeping,
See Too Many Secrets: Overclassification Barrier Critical Information Sharing,
Hearing Before the Subcomm. National Security, Emerging Threats, and International
Relations the Comm. Government Reform, 108th Cong. 263 82-83 (2004) (statement William Leonard, Director, Information Security Oversight Office, National Archives and
Records Administration).
See Stephen Schullhoffer, Access National Security Information under the U.S.
Freedom Information Act, [M]ost assessments suggest that roughly nine-tenths
classified material does not need treated. (internal quotation marks omitted).)
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Wash. Post. Feb. 15, 1989, A25 (demonstrating that the principal concern most classifiers
governmental embarrassment one sort another Equally well documented are examples public debate about civil rights and liberties being thwarted the classification
information vital those debates.11 Given this reality, the fact classification alone plainly
insufficient defeat the public access right. Cf. Halperin, 606 F.2d 1204 n.77. blind
acceptance the courts the government insistence the need for secrecy would
impermissibly compromise the independence the judiciary and open the door possible
abuse. Wash. Post, 807 F.2d 392. sum, the judicial records this proceeding cannot properly sealed based only upon
assertions from the Executive that information properly classified and that disclosure would
harm national security. See Id., 807 F.2d 391-92 (rejecting the notion that the judiciary
should abdicate its decisionmaking responsibility the executive branch whenever national
security concerns are present Dhiab, Supp. 495-96. Rather, the court must
satisfied that the Government has established probability harm from the public release the
specific information seeks seal. See Press Enterprise II, 478 U.S. 14.
The Long-Term, Open-Ended Sealing
Records This Case Improper and Unjustifiable
Zubaydah docket currently indicates that filings are being withheld full from the
public. Zubaydah original petition for writ habeas corpus, filed August 2008, the
oldest such record. Dkt. The Government has not explained why virtually all records this
See, e.g., N.Y. Times Co. DOJ, 756 F.3d 100, 104-08 (D.C. Cir. 2014) (surveying
government efforts shield the legal justifications relied upon carrying out targeted killing); Macaskill Dance, NSA Files Decoded, The Guardian (Nov. 2013) (massive scale
the NSA collection citizen telephone and email data kept from the American public through
classification), http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-filessurveillance-revelations-decoded.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
case have remained unavailable for public inspection, year after year, and the Court has made
findings justify this massive secrecy. Even the few substantive records that are available have
been unilaterally redacted the Government large part, without explanation. See, e.g., Dkt.
204 (declassified factual return). far can determined, the Court has never reviewed these
redactions. Bonner therefore requests the unsealing and public filing each the records
identified Exhibits and his declaration, and unsealing the redacted portions the
Government Factual Returns (Dkt. 204).
The challenged sealings and redactions are procedurally improper.
While the Protective Order provides procedures for reviewing records and making them
publicly available the greatest extent possible, see Dkt. 78, 48-50, practice the records
this case are being withheld their entirety and indefinitely. The only document for which the
Government gave any estimate for when would publicly available was Zubaydah
Amended Petition for Writ Habeas Corpus, filed August 29, 2008. Dkt. 19. response
this Court order for the Government reveal[]when the classification review process will complete, Dkt. 273 the Government April 22, 2011 estimated that would
completed June 17, 2011, Dkt. 280 That review apparently remains incomplete today,
five years overdue.
Many the records that are still awaiting classification review were filed years ago.
These records are clearly not being made available contemporaneously, and the Court has
made findings fact justify withholding them from the public, the constitutional access
right requires. Thus, from procedural perspective, the massive sealing virtually all records
this lawsuit plainly improper.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
The challenged sealings and redactions are unjustifiable. proper judicial review the Government sealings and redactions also likely
reveal that proper basis exists for denying access many these records because there
substantial probability that disclosing the information they contain will cause harm national
security.
(a)
There proper basis for sealing and redacting publicly available
information. threshold matter, there basis for sealing, redacting, otherwise withholding
information that already publicly available, because the release information that widely
known cannot possibly result meaningful harm national security. See, e.g., N.Y. Times Co. DOJ, 756 F.3d 119-120 (rejecting the Government assertion that harm would result from
releasing legal memorandum, because the contents the memorandum were publicly
available). [W]hen the sealed facts are already public, maintaining documents under seal only
appropriate when, despite what the public already knows, the documents release would still give
rise substantial probability harm. Dhiab, Supp. 496 (citing Robinson, 935
F.2d 291-92).
Withholding already-public information will also necessarily fail the effectiveness prong the governing four-part test. See supra Part III.A.1. the information question already
public, sealing this proceeding does not make secret again sealing abridges
constitutional right for purpose. See Press-Enterprise II, 478 U.S. (holding that the party
seeking secrecy must show that closure would prevent the purported harm). Records simply
cannot sealed the information sought kept confidential has already been given
sufficient public exposure. The Herald Co., 734 F.2d 101.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page the present case, prodigious amount information about the capture and treatment Abu Zubaydah the Government already has been publicly documented and acknowledged.
The following summarizes way example some selected categories information about
Zubaydah that are public and thus cannot properly sealed redacted this proceeding:
Zubaydah Capture and Detention:
Zubaydah was captured raid Pakistani and U.S. forces Faisalabad, Pakistan,
late March, 2002. DOJ Report 67; SSCI Report, Executive Summary, 46. During this
operation, Zubaydah was shot several times the groin, thigh and stomach, which resulted
very serious wounds. Zubaydah Poland 32. Zubaydah told U.S. military panel 2007
that neither nor his companions fired back during the raid because [they] had guns.
Locations Zubaydah Detention:
From his capture March 2002 until September 2006, Zubaydah was detained CIA
black sites secret locations around the world. Zubaydah Poland 32. was first
transferred from Pakistan CIA facility Bangkok, Thailand, code-named CATSEYE, and
then transferred again December 2002 CIA prison Stare Kiejkuty, Poland. Id. 123,
159, 162. The CIA transferred him out Poland another CIA detention facility September 22,
2003. Id. 126, 151. September 2006, Zubaydah was transferred the U.S. naval base
Guantanamo Bay, Cuba, where remains today. Zubaydah Poland 43.
Zubaydah Torture the CIA:
The CIA initially held Zubaydah total isolation and deprived him clothes and
sleep order create sense hopelessness. SSCI Report, Executive Summary, 29.
Verbatim Transcript Combatant Status Review Tribunal Hearing for ISN 10016 (Mar.
27, 2007). This document was released through ACLU FOIA request and available at:
https://www.aclu.org/files/pdfs/safefree/csrt_abuzubaydah.pdf
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
was subjected forcible rectal resuscitation and was threatened with harm members his
family. Id. 487-88. August 2002, the CIA began subjecting [Zubaydah] enhanced interrogation
techniques near 24-hour-per-day basis. Id. 40, n.256. was placed stress
positions, locked coffin for hours, slammed against walls, and waterboarded. Id. 40-42.
Over the course his captivity, Zubaydah was waterboarded least times the CIA. Id.
118 n.698.
The CIA Response Zubaydah Deteriorating Health:
Despite medical assessment August 15, 2002 that the CIA harsh treatment was
causing steady deterioration Zubaydah surgical wound, was provided only absolute
minimum wound care. Id. 111 n.649. This treatment was accordance with directives
from CIA Headquarters that the interrogation process would take precedence over Abu
Zubaydah medical care. Id. 111. some point during Zubaydah CIA detention, lost his left eye. Id. 491.
October 2002, interrogators requested that his right eye tested, explaining that this request
driven our intelligence needs vice humanitarian concern for AZ. Id. July 2002, Zubaydah CIA interrogators sought assurances from headquarters before
implementing certain planned psychological pressure techniques. Id. 35. CIA headquarters
responded:
There fairly unanimous sentiment within HQS that [Abu Zubaydah]
will never placed situation where has any significant contact
with others and/or has the opportunity released. While difficult discuss specifics this point, all major players are concurrence that
[Abu Zubaydah] should remain incommunicado for the remainder his
life.
Id. (alterations original).
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
These details are mere sampling the publicly available information about Zubaydah and his
experiences under CIA custody; the Senate Torture Report alone, his name appears 199
pages the 525-page report. SSCI Report. the extent that the sealed records contain similar identical information, sealing that information unjustifiable because its release would not
entail substantial probability harm. Dhiab, Supp. 496.
The passage time further undercuts the Government substantial harm justification
for withholding the records this proceeding. The Factual Returns, for example, were redacted
and declassified for public release July 29, 2009. See Dkt. 204. Since then, staggering
quantity new information regarding Abu Zubaydah has become public through the
declassified sections the SSCI Report, released the public December 2014. Additional
information became public through the 2013 European Court Human Right case Zubaydah
Poland, which thoroughly documents Zubaydah activities well has his capture, detention,
renditions, and treatment the U.S. government. Thus, even information was properly
redacted from the Government Factual Return 2009, the extensive subsequent revelations
information have rendered many those redactions unjustifiable.
Because harm national security can result from the release publicly available
information, both the categorical sealing records and extensive redactions publicly
available information violate the First Amendment right public access these records. The
Court should review all sealed and redacted records and release forthwith those containing
information that publicly available.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
(b)
The potential for embarrassment government agencies not
valid reason for withholding information.
Even facts that are not publicly known cannot properly withheld the reason for
doing avoid embarrassment prevent the disclosure wrongdoing. Executive Order
13526 explicitly prohibits agencies from classifying information order to: (1) conceal
violations law, inefficiency, administrative error; (2) prevent embarrassment person,
organization, agency; (4) prevent delay the release information that does not
require protection the interest the national security. Exec. Order 13526, dated Dec. 29,
2009, 1.7.
The DNI has publicly acknowledged that agencies classify information for the improper
reasons that 13526 prohibits:
[W]e overclassify. observations are that this more due just
the default the easy thing rather than some nefarious
motivation to, you know, hide protect things for political reasons. That
does happen too .13
President Obama recently made similar admission: There classified, and then there
classified. There stuff that really top secret and then there stuff that you might not
want the trancom but basically stuff that you could get open source. This
phenomenon improper classification underscores the need for independent judicial
assessment whether disclosure the records issue would pose sufficient security threat
justify denial the public constitutional rights.
Hearing Before the Select Comm. Intelligence, 111th Cong. (statement General
James Clapper), http://fas.org/irp/congress/2010_hr/clapper.pdf; see also Joint Anti-Fascist
Refugee Comm. McGrath, 341 U.S. 123, 137-38 (1951) (finding that the Attorney General
exceeded his authority conferred executive order).
Fred Kaplan, Obama Secrecy Problem, SLATE.COM, (Apr. 15, 2016 10:48 AM),
http://www.slate.com/articles/news_and_politics/war_stories/2016/04/obama_says_too_much_in
formation_is_classified_irony_alert.html.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page this case particular, ample evidence suggests that the agencies are using
classification for the improper purposes prohibited Executive Order 13526. Many these
sealed records contain allegations that the government has engaged illegal actions. These
include accusations that the CIA has intentionally destroyed evidence, see Dkt. 218, that the CIA
improperly seized documents covered the attorney-client privilege, see Dkt. 288, and that the
Government has consistently failed comply with Court orders, see Dkt. 290. Given the nature these allegations, the CIA certainly has motive misuse classification prevent
embarrassment.
Indeed, Congress has thoroughly documented the CIA extensive use deception
avoid public scrutiny its treatment Zubaydah and other Guantanamo detainees. the
conclusions the SSCI Report, relate the CIA attempts avoid oversight. SSCI Report,
Findings and Conclusions, 2-19.15 For example, 2005, against the backdrop calls the
Senate favor establishing independent commission investigate U.S. detention policies
and allegations detainee abuse, Acting CIA General Counsel John Rizzo and other CIA
personnel exchanged emails regarding the propriety destroying the videotapes its
interrogations Abu Zubaydah and others. See id., Executive Summary, 443 n.2488. The
#2: The CIA justification for the use its enhanced interrogation techniques rested
inaccurate claims their effectiveness.
#3: The interrogations CIA detainees were brutal and far worse than the CIA represented policymakers and others.
#4: The conditions confinement for CIA detainees were harsher than the CIA had
represented policymakers and others.
#5: The CIA repeatedly provided inaccurate information the Department Justice,
impeding proper legal analysis the CIA Detention and Interrogation Program.
#6: The CIA has actively avoided impeded congressional oversight the program.
#7: The CIA impeded effective White House oversight and decision-making.
#8: The CIA impeded oversight the CIA Office Inspector General
#10: The CIA coordinated the release classified information the media, including
inaccurate information concerning the effectiveness the CIA enhanced
interrogation techniques.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
videotapes were destroyed shortly thereafter, November 2005. Id. 444. These instances
demonstrate that the CIA has used every resource hand avoid public scrutiny its
treatment Zubaydah and other Guantanamo detainees. similar vein, the CIA has intentionally used classification misshape public
opinion. The CIA coordinated the release classified information the media, including
inaccurate information concerning the effectiveness the CIA enhanced interrogation
techniques. Id., Findings and Conclusions, The purpose the CIA public relations
campaign was counter public criticism, shape public opinion, and avoid potential
congressional action rein the CIA detention and interrogation program. Id. achieve
those goals, the CIA Office Public Affairs and senior CIA officials coordinated disclose
inaccurate but nonetheless classified information its detention and interrogation program
selected media outlets. Id. 8-9. These selective disclosures classified information raise
significant self-governance concerns and further underscore the importance careful judicial
scrutiny the CIA classification decisions.
Because preventing embarrassment and concealing violations law are invalid reasons
for classification, this Court should scrutinize the Government claims the need for secrecy
this proceeding with extreme care, and release all records for which the Government has not met
its constitutional burden. Uncritical deference the Government classification decisions
would prevent the very democratic oversight the First Amendment seeks ensure. sum, the Government has failed meet its burden demonstrate that compelling
need outweighs the public First Amendment right access the records issue. That burden particularly high detainee cases such this one, wherein the judiciary exercise[s] greater
caution deciding when defer executive determinations. Ameziane Obama, 699 F.3d
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
488, 494 (D.C. Cir. 2012). Liberty and security can reconciled; and our system they are
reconciled within the framework the law. Boumediene, 553 U.S. 798. That framework
does not afford the government the right unilaterally seal information; requires courts
determine whether sealing absolutely necessary. Because the Court has made such
determination this case nor could the systematic sealing Zubaydah records violates
the public First Amendment right access.
CONCLUSION
For each and all the foregoing reasons, this Court should permit Mr. Bonner intervene
and grant his motion unseal specific records this proceeding, and enter such other and
further relief the Court deems just and equitable.16
Dated: April 18, 2016
New Haven,
Respectfully submitted,
MEDIA FREEDOM INFORMATION
ACCESS CLINIC
By: /s/ David Schulz
David Schulz (Bar 459197)
Jonathan Manes
Steven Lance (law student intern)
Andrew Udelsman (law student intern)
Beatrice Walton (law student intern)
Yale Law School
P.O. Box 208215
New Haven, 06520New Haven, 06511 (203) 432-9387
dschulz@lskslaw.com
jonathan.manes@yale.edu
Chad Bowman (Bar 484150)
LEVINE SULLIVAN KOCH SCHULZ, L.L.P.
1899 Street,
Suite 200
This memorandum was prepared the Media Freedom and Information Access Clinic,
program the Abrams Institute for Freedom Expression and the Information Society Project Yale Law School. The brief does not purport express the school institutional views, any.
Case 1:08-cv-01360-UNA Document 317-1 Filed 04/18/16 Page
Washington, 20036 (202) 508-1136
cbowman@lskslaw.com
Counsel for Movant Raymond Bonner