Guantanamo Force Feeding Tapes Motion

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
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ABI WAEL (J IHAD) DHIAB,
Petitioner/Plaintiff,
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BARACK H. OBAMA, et al.,
Respondents/Defendants.
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Civ. No. 05-1457 (GK)

PRESS APPLICANTS
MOTION TO INTERVENE
AND TO UNSEAL
VIDEOTAPE EVIDENCE
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Pursuant to Federal Rule of Civil Procedure 24 and Local Rule of Civil Procedure 7(j),
Hearst Corporation, Inc., ABC, Inc., Associated Press, Bloomberg L.P., CBS Broadcasting Inc.,
The Contently Foundation, Dow J ones & Company, Inc., First Look Media, Inc., Guardian US,
The McClatchy Company, National Public Radio, Inc., The New York Times Company, Reuters
America LLC, Tribune Publishing Company, LLC, USA TODAY, and The Washington Post
(collectively Press Applicants) by and through their undersigned counsel, hereby move to
intervene and to unseal certain videotape evidence entered into the record of the above-captioned
action.
In an effort to facilitate the Courts resolution of the Motion to Intervene, Press
Applicants have conferred with the Government and counsel for petitioner Dhiab in a good faith
effort to obtain their consent to Press Applicants intervention. The Government has reserved its
position. Mr. Dhiab consents to the intervention.
In support of their motion, Press Applicants submit the accompanying: (i) Memorandum
of Points and Authorities; (ii) Corporate Disclosure Certification; and (iii) Proposed Order.

ORAL HEARING REQUESTED.

Case 1:05-cv-01457-UNA Document 263 Filed 06/20/14 Page 1 of 2

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Dated: J une 20, 2014 Respectfully submitted,

LEVINE SULLIVAN KOCH & SCHULZ, LLP

By: /s/ David A. Schulz
David A. Schulz, DC Bar No. 459197
J ulie B. Ehrlich*

321 West 44th Street, Suite 1000
New York, NY 10036
(212) 850-6100
dschulz@lskslaw.com
jehrlich@lskslaw.com

Counsel for Press Applicants

* Pro hac vice motion forthcoming

Case 1:05-cv-01457-UNA Document 263 Filed 06/20/14 Page 2 of 2

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Civ. No. 05-1457 (GK)

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MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PRESS APPLICANTS
MOTION TO INTERVENE AND TO UNSEAL VIDEOTAPE EVIDENCE


J ulie B. Ehrlich*

New York, NY 10036
(212) 850-6100
dschulz@lskslaw.com


* Pro hac vice application forthcoming
Case 1:05-cv-01457-UNA Document 263-1 Filed 06/20/14 Page 1 of 34

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND .............................................................................................................................2
A. Press Applicants .......................................................................................................2
B. Abu Wael (J ihad) Dhiab .........................................................................................2
C. Procedural Background to the Instant Motion .........................................................5
D. Previous Press Intervention in This Litigation.........................................................6
E. Relief Requested ......................................................................................................8
ARGUMENT ...................................................................................................................................8
I. PRESS APPLICANTS SHOULD BE PERMITTED TO
INTERVENE TO ENFORCE THE RIGHT OF PUBLIC ACCESS ..................................8
II. THE GOVERNMENT MUST SATISFY A HEAVY BURDEN
TO DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE ...............................10
A. The Press and Public Have a Qualified Right
to Inspect and Copy the Videotape Evidence ........................................................10
B. The Government Bears a Heavy Burden to Abridge
the Public Right of Access to the Videotape Evidence ..........................................13
C. The Same Strict Standards Apply When the Government
Seeks to Seal Records in the Interest of National Security ....................................14
III. THE GOVERNMENT HAS NOT MET ITS BURDEN TO
DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE......................................18
A. Classification at the Secret Level Does Not Satisfy
the Constitutional Standard to Seal a Court Record ..............................................18
B. No Proper Basis Exists to Seal Information
that is Largely Known to the Public ......................................................................21
CONCLUSION ..............................................................................................................................26

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TABLE OF AUTHORITIES
Page(s)
Cases
Aamer v. Obama,
742 F.3d 1023 (D.C. Cir. 2014) .................................................................................................3
ACLU v. Dept of State,
878 F. Supp. 2d 215 (D.D.C. 2012) .........................................................................................18
ACLU v. Office of Dir. Natl Intelligence,
2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) .........................................................................20
In re ABC,
537 F. Supp. 1168 (D.D.C. 1982) ............................................................................................11
Application of CBS, Inc.,
828 F.2d 958 (2d Cir. 1987) ....................................................................................................11
In re Application of the N.Y. York Times Co. for Access to Certain Sealed Court Records,
585 F. Supp. 2d 83 (D.D.C. Nov. 17, 2008) ..............................................................................8
*Application of NBC,
635 F.2d 945, 952 (2d Cir. 1980) ............................................................................................11

In re Application of Newsday, Inc.,
895 F.2d 74 (2d Cir. 1990).........................................................................................................9
Ashworth v. Bagley,
351 F. Sup. 2d 786, 792 (S.D. Ohio 2005) ..............................................................................11
Associated Press v. U.S. Dist. Ct.,
705 F.2d 1143 (9th Cir. 1983) .................................................................................................14
Berntsen v. CIA,
618 F. Supp. 2d 27 (D.D.C. 2009) ...........................................................................................16
Bismullah v. Gates,
501 F.3d178 (D.C. Cir. 2007) ....................................................................................................8
Ctr. for Natl Sec. Studies v. U.S. Dept of Justice,
331 F.3d 918 (D.C. Cir. 2003) .................................................................................................15
In re Charlotte Observer,
882 F.2d 850 (4th Cir. 1989) ...................................................................................................24

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Coldiron v. Dept of Justice,
310 F. Supp. 2d 44 (D.D.C. 2004) ...........................................................................................18
Detroit Free Press v. Ashcroft,
303 F.3d 681 (6th Cir. 2002) ...................................................................................................13
*Dhiab v. Obama,
952 F. Supp. 2d 154 (D.D.C. 2013) .......................................................................................1, 3
EEOC v. Natl Childrens Ctr., Inc.,
146 F.3d 1042 (D.C. Cir. 1998) .................................................................................................9
*Globe Newspapers Co. v. Super. Ct.,
457 U.S. 596 (1982) ...................................................................................................................9
Goldberg v. U.S. Dept of State,
818 F.2d 71 (D.C. Cir. 1987) ...................................................................................................18
Grosjean v. Am. Press Co.,
297 U.S. 233 (1936) .................................................................................................................12
*In re Guantanamo Bay Detainee Lit.,
624 F. Supp. 2d 27 (D.D.C. 2009) .............................................................................7, 8, 11, 15
*In re The Herald Co.,
734 F.2d 93 (2d Cir. 1982).................................................................................................13, 14
Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U.S. 123 (1951) .................................................................................................................20
In re Knight Publg Co.,
743 F.2d 231 (4th Cir. 1984) .....................................................................................................9
*Lugosch v. Pyramid Co.,
435 F.3d 110 (2d Cir. 2006).........................................................................................10, 11, 14
*McGehee v. Casey,
718 F.2d 1137 (D.C. Cir. 1983) ...............................................................................................16
N.Y. Civil Liberties Union v. NYC Trans. Auth.,
684 F.3d 286 (2d Cir. 2012).....................................................................................................10
In re N.Y. Times,
828 F.2d 110 (2d Cir. 1987).....................................................................................................14
N.Y. Times Co. v. United States,
403 U.S. 713 (1971) .................................................................................................................15

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In re NBC,
653 F.2d 609 (D.C. Cir. 1981) ...........................................................................................10, 11
Newman v. Graddick,
696 F.2d 796 (11th Cir. 1983) .................................................................................................11
*Nixon v. Warner Commcns, Inc.,
435 U.S. 589 (1978) .................................................................................................................10
Oregonian Publg Co. v. Dist. Ct.,
920 F.2d 1462 (9th Cir. 1990) .................................................................................................19
Osband v. Ayers,
2007 WL 3096113 (E.D. Cal. Oct. 22, 2007) ..........................................................................11
Phoenix Newspapers, Inc. v. U.S. Dist. Ct. for the Dist. of Ariz.,
156 F.3d 940 (9th Cir. 1998) ...................................................................................................14
*Press Enterprise Co. v. Super. Ct.,
464 U.S. 501 (1984) ...........................................................................................................12, 13
*Press-Enterprise v. Super. Ct.,
478 U.S. 1 (1986) ............................................................................................................. passim
Ramirez v. Attorney Gen. of the State of N.Y.,
1999 WL 1059966 (S.D.N.Y. Nov. 22, 1999) .........................................................................11
In re Reporters Comm. for Freedom of the Press,
773 F.2d 1325 (D.C. Cir. 1985) ...............................................................................................11
*Richmond Newspapers Inc. v. Virginia,
448 U.S. 555 (1980) .....................................................................................................10, 12, 13
Shelton v. Tucker,
364 U.S. 479 (1960) .................................................................................................................13
*Shingara v. Skiles,
420 F.3d 301 (3d Cir. 2005)...................................................................................................8, 9
Stillman v. CIA,
319 F.3d 546 (D.C. Cir. 2003) .................................................................................................16
Union Oil Co. v. Leavell,
220 F.3d 562 (7th Cir. 2000) ...................................................................................................15
United States v. Abegg,
21 Media L. Rep. (BNA) 1442 (S.D. Fla. 1993) ....................................................................11

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United States v. Amodeo,
71 F.3d 1044 (2d Cir. 1995).....................................................................................................12
United States v. Antar,
38 F.3d 1348 (3d. Cir. 1994)....................................................................................................19
United States v. Aref,
533 F.3d 72 (2d Cir. 2008).......................................................................................................17
United States v. Criden,
648 F.2d 814 (3d Cir. 1981).....................................................................................................11
United States v. Graham,
257 F.3d 143 (2d Cir. 2001).....................................................................................................11
United States v. Grunden,
2 M.J . 116 (C.M.A. 1977) .................................................................................................16, 24
United States v. Guzzino,
766 F.2d 302 (7th Cir. 1985) ...................................................................................................11
United States v. Hershey,
20 M.J . 433 (C.M.A. 1985) ................................................................................................16, 17
United States v. Mitchell,
551 F.2d 1252 (D.C. Cir. 1976) ...............................................................................................12
United States v. Moussaoui,
65 F. Appx 881 (4th Cir. 2003) ..............................................................................................17
United States v. Mouzin,
559 F. Supp. 463 (C.D. Cal. 1983) ..........................................................................................11
United States v. Myers,
635 F.2d 942 (2d Cir. 1980).....................................................................................................11
United States v. Pelton,
696 F. Supp. 156 (D. Md. 1986) ..............................................................................................17
United States v. Poindexter,
732 F. Supp. 165 (D.D.C. 1990) ..............................................................................................17
United States v. Progressive, Inc.,
467 F. Supp. 990 (W.D. Wis. 1979) ........................................................................................15
United States v. Rosen,
487 F. Supp. 2d 703 (E.D. Va. 2007) ......................................................................................17

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United States v. Torres,
602 F. Supp. 1458 (N.D. Ill. 1985) ..........................................................................................11
Valley Broad. Co. v. U.S. Dist. Ct.,
798 F.2d 1289 (9th Cir. 1986) .................................................................................................11
*In re Wash. Post Co.,
807 F.2d 383 (4th Cir. 1986) ........................................................................................... passim
*Wash. Post Co. v. Robinson,
935 F.2d 282 (D.C. Cir. 1991) ......................................................................................... passim
Statutes & Governmental Materials
Exec. Order 13526, dated Dec. 29, 2009 .......................................................................................18

Classified Information Procedures Act, 18 U.S.C., App. 3 (2000) ................................................17

Reducing Over-Classification Act, Pub. L. 111-258, 2, 124 Stat. 2648 (Oct. 7, 2010) .............19
28 C.F.R. 549.65 ..........................................................................................................................25
Senate Report of the Commission on Protecting and Reducing Government Secrecy, 103rd
Cong., 1997, S. Doc. 105-2 (GPO 1997) ................................................................................19

Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing,
Hearing Before the Subcomm. on National Security, Emerging Threats,
and Intl Relations of the Comm. on Government Reform,
108th Cong. 263 at 82-83 (2004) .............................................................................................19

Selected Other Authorities
Moath Al-Alwi, My Life at Guantanamo,
Al-J azeera, J uly 7, 2013 ...........................................................................................................22
Amanda Gordon, The Constitutional Choices Afforded to A Prisoner on Hunger Strike:
Guantanamo, 9 Santa Clara J . Intl L. 345 (2011) ..................................................................25
Emily Greenhouse, Mos Defs Act of Protest,
New Yorker, J uly 9, 2013 ........................................................................................................23

Erwin Griswold, Secrets Not Worth Keeping, Wash. Post, Feb. 15, 1989 ....................................20
George J . Annas, American Vertigo: Dual Use, Prison Physicians, Research, and
Guantanamo, 43 Case W. Res. J . Intl L. 631 (2011) ..............................................................25
J anice L. Richter, We Have Waited So Long: The Story of Alice Paul,
New J ersey Lawyer, 171-SEP N.J . Law. 25 (1995). ...............................................................25

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Tracey M. Ohm, What They Can Do About It: Prison Administrators
Authority to Force-Feed Hunger-Striking Inmates,
23 Wash U. J . L. & Poly 151 (2007) ......................................................................................25


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PRELIMINARY STATEMENT
Through this motion 16 news organizations seek permission to intervene to enforce the
publics right of access to judicial records. Specifically, the Press Applicants seek to unseal
videotape evidence submitted in connection with petitioners efforts to stop the Government
from forcibly feeding him, utilizing procedures that he contends constitute torture and violate
his rights, Dkt. 203-1 at 11, and that this Court has described as painful, humiliating and
degrading, Dhiab v. Obama, 952 F. Supp. 2d 154, 156 (D.D.C. 2013).
Petitioner has submitted the videotape evidence to support two requests for extraordinary
injunctive relief. As established below, the public has a qualified right under both the First
Amendment and the common law to inspect and copy this evidence. No compelling reason
exists to abridge that right. Although the Government has classified the videotapes, it is no
secret that force-feeding is being used at Guantanamo; nor is there any secret regarding how it is
used. To the contrary, the public access right should be fully enforced because the videotapes
are the most direct and informative evidence of Government conduct that petitioner alleges to be
unlawful, and the videotapes form an important part of the record upon which the Court
evaluated Dhiabs application for a TRO and will base its preliminary injunction ruling. The
public is entitled to view this evidence to satisfy itself of the fairness of the outcome of this
proceeding and to exercise democratic oversight of its Government.

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BACKGROUND
A. Press Applicants
Press Applicants are news organizations that regularly gather and publish news
concerning the Guantanamo detainees and the federal courts.
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They have covered the militarys
detention of alleged terrorists at Guantanamo Bay and their related habeas proceedings,
including this proceeding filed by Mr. Dhiab. In reporting on these issues, Press Applicants
routinely rely upon the publics constitutional and common law rights of access to court records
in order to gather the news and to inform the public accurately about the Governments actions
and the developments in these judicial proceedings.
B. Abu Wael (Jihad) Dhiab
Petitioner Abu Wael (J ihad) Dhiab has been detained at Guantanamo Bay since 2002.
2

A 43-year-old Syrian national, he was arrested in Pakistan in April 2002 for unknown reasons.
According to his attorneys, soon thereafter, he was turned over to the United States government
and transferred to Guantanamo. See www.reprieve.org.uk/cases/abuwaeldhiab/. Dhiab filed his
petition for a writ of habeas corpus on J uly 22, 2005, asserting that his detention at Guantanamo
is unlawful under the U.S. Constitution, the Alien Tort Statue, 28 U.S.C. 1350, and
international law, and that conditions of his confinement violate the Fifth Amendment. In 2009,
President Obama cleared Dhiab for release from Guantanamo Bay. See Dkt. 175 at 10. He has
yet to be released.

1
The Press Applicants are The Hearst Corporation, ABC, Inc., The Associated Press, Bloomberg L.P.,
CBS Broadcasting, Inc., The Contently Foundation, Dow J ones & Company, Inc., First Look Media, Inc.,
Guardian US, The McClatchy Company, National Public Radio, Inc., The New York Times Company,
Reuters, Tribune Publishing Company, LLC, USA TODAY, and The Washington Post.
2
Unless otherwise noted, the facts concerning Mr. Dhiabs background are drawn from his petition. See
Petition (Dkt. 1), Dhiab v. Obama, No. 05-cv-01457 (D.D.C. J uly 22, 2005) (Pet.).

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Dhiab and several other Guantanamo detainees are on a long-term hunger strike to protest
their indefinite detention. More than a year ago, at some point before April 9, 2013, the
Government began to feed Dhiab nasogastrically against his will. Id. On J une 30, 2013, Dhiab
and several other hunger striking detainees filed a motion for an injunction to prevent the
Government from force-feeding them. See Dkt. 175. Dhiabs motion asserted that the force-
feeding causes him significant pain and that, if not forcibly fed, he would continue his fast. Id.
This Court denied the preliminary injunction motion and a subsequent motion for
reconsideration on the basis that it lacked jurisdiction. See Dkts. 182, 192; Dhiab v. Obama, 952
F. Supp. 2d 154 (D.D.C. 2013). Although the Court was constrained to deny Dhiabs
application for injunctive relief by a perceived lack of subject-matter jurisdiction, the Court
expressed its dim view of force-feeding, stating that
it is perfectly clear from the statements of detainees, as well as the
statements from [the American Medical Association, the World Medical
Association, the UN High Commissioner for Human Rights, and the UN
Rapporteur on Human Rights and Counter-Terrorism], that force-feeding
is a painful, humiliating, and degrading process.
952 F. Supp. 2d at 156.
On February 11, 2014, the Court of Appeals reversed, holding that this Court does have
jurisdiction to consider Guantanamo detainees challenges to the conditions of their confinement
there. See Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). In light of that ruling, on April 18,
2014, Dhiab again moved for a preliminary injunction, asking the Court to block the forcible
removals from his cell and to halt the forced feedings. See Dkts. 203 & 203-1. The Court
granted a temporary injunction on May 16, 2014, see Dkt. 221, but declined to extend it by order
dated May 22, 2014, out of concern for Dhiabs health, see Dkt. 224. Dhiab continues to be
extracted from his cell and forcibly fed enterally. See Dkt. 256.

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Dhiabs habeas petition, his participation in the hunger strike, and (in particular) his
repeated requests that the Court prohibit the Government from extracting him from his cell by
force and force-feeding him, have garnered significant public attention.
3
The Governments use
of force-feedings in response to the hunger strikes remains the subject of ongoing debate and
significant public scrutiny.
4
The public has a demonstrated and continuing interest in the
Governments detention of Mr. Dhiab, the conditions of his detention, the status of the hunger
strike and the Governments response.
5

3
See, e.g., Michael Doyle, Judge: I cant stop Guantanamo force-feeding but Obama can, Miami Herald,
J uly 8, 2013, available at http://www.miamiherald.com/2013/07/08/3490834/judge-i-cant-stop-
guantanamo-force.html#; Michael Doyle, Appeals court declines to stop Guantanamo force-feeding,
McClatchy, February 11, 2014, available at http://www.mcclatchydc.com/2014/02/11/217730/appeals-
court-declines-to-stop.html; Carol Rosenberg, Judge halts force-feeding of Syrian Guantanamo captive,
Miami Herald, May 16, 2014, available at http://www.miamiherald.com/2014/05/16/4122110/federal-
judge-halts-forced-feeding.html; Dan Lamothe, U.S. judge permits Pentagon to force-feed Guantanamo
prisoner but issues rebuke, The Wash. Post, May 23, 2014, available at
http://www.washingtonpost.com/world/national-security/us-judge-permits-pentagon-to-force-feed-
guantanamo-prisoner-says-pain-possible/2014/05/23/a385cf72-e290-11e3-8dcc-
d6b7fede081a_story.html; Ed Pilkington, Guantanamo inmate makes new force-feeding complaint after
judges ruling, The Guardian, J une 3, 2014, available at
http://www.theguardian.com/world/2014/jun/03/guantanamo-inmate-second-complaint-force-feeding.
4
See, e.g., Karen McVeigh, Guantanamo inmate vomited blood after force-feeding, documents show, The
Guardian, May 22, 2014, available at http://www.theguardian.com/world/2014/may/22/guantanamo-
inmate-vomit-blood-force-feeding; Letter of Human Rights Organizations to Hon. Chuck Hagel,
Secretary, U.S. Dept of Defense, May 13, 2013, available at http://www.hrw.org/fr/node/115521 (calling
on the Department of Defense to end the force-feeding of competent hunger-striking prisoners in
Guantanamo Bay, which medical organizations repeatedly [have] condemned); Hayes Brown, U.N.
Official Says Gitmo Force-Feeding Violates Intl Law, ThinkProgress, May 1, 2013, available at
http://thinkprogress.org/security/2013/05/01/1946641/un-gitmo-torture/; Office of the High
Commissioner for Human Rights, Statement: IACHR, UN Working Group on Arbitrary Detention, UN
Rapporteur on Torture, UN Rapporteur on Human Rights and Counter-Terrorism, and UN Rapporteur
on Health reiterate need to end indefinite detention of individuals at Guantanamo Naval Base in light of
current human rights crisis, May 1, 2013, available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13278 (referring to force-
feeding of competent hunger strikers as unjustifiable and contrary to the principles set forth in the
World Medical Assemblys Declaration of Malta).
5
See, e.g., Lazaro Gamio and Carol Rosenberg, Tracking the Hunger Strike, Miami Herald, available at
http://www.miamiherald.com/static/media/projects/gitmo_chart; Carol Rosenberg, Military imposes
blackout on Guantanamo hunger-strike figures, Miami Herald, Dec. 3, 2013, available at
http://www.miamiherald.com/2013/12/03/3795285/guantanamo-ends-daily-hunger-strike.html.

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C. Procedural Background to the Instant Motion
After Dhiab renewed his motion for a preliminary injunction in April 2014, the
Government disclosed that it possessed videotapes showing forcible cell extractions and force-
feedings at Guantanamo, but refused to produce them to Dhiabs counsel. See Dkt. 217 at 2. On
May 13, 2014, Dhiab filed an emergency motion for an order compelling the Government to
both (a) preserve the videotapes of his force-feedings and forcible cell extractions between April
9, 2013 and May 7, 2014, and (b) produce those videotapes to Dhiabs counsel. Dkt. 217.
After a conference on May 21, 2014, the Court granted Dhiabs motion in part, and (in
pertinent part) directed the Government to produce to counsel all videotapes made between
April 9, 2013, and February 19, 2014, that record both [Dhiabs] Forcible Cell Extraction and
subsequent enteral feeding no later than J une 13, 2014.

Dkt. 225 at 2. Pursuant to that order, on
J une 13, 2014, the Government provided Dhiabs counsel with access to several of the
videotapes. The Court permitted the Government until J une 16, 2014 to produce an additional
10 tapes. See Dkt. 250.
6

On J une 12, 2014, Dhiab filed a sealed emergency motion for a temporary restraining
order (TRO), the nature of which was not made public at that time. See Dkt. 253. After
viewing the first batch of recordings, on J une 14, 2014, Dhiab filed a reply in support of his
motion for a TRO, together with two exhibits: (1) Dhiabs medical records, and (2) three of the
videotapes disclosed to Dhiab on J une 13, 2014. See Dkt. 252 (Notice of Filing). The sealed
motion for a TRO was denied without prejudice after a closed hearing on J une 16, 2014, see Dkt.
254, and the motion, reply, and supporting declaration subsequently were unsealed, see Dkts.

6
On J une 5, 2014, Dhiab also moved for the production of videotapes of forcible cell extractions and
force-feedings on May 29 and 30, 2014. The Court granted the motion over the Governments objection
on J une 18, 2014, and ordered the Government to produce these additional videotapes by J uly 3, 2014.
See Dkt. 258.

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255, 255-1, 259.
7
Dhiabs medical records likewise were unsealed in redacted form. See Dkt.
259 at 21-40. However, the videotapes filed with the Court remain under seal.
On J une 17, 2014, Dhiabs counsel filed a classified motion seeking permission to file 13
additional videotapes with the Court, in further support of his preliminary injunction motion. See
Dkt. 257. The next day, during a court conference, Dhiab orally supplemented his motion, now
seeking permission to file all 28 videos produced by the Government. See Dkt. 260. The
Government has consented to the filing with the Court of all 28 videos it has or will produce to
petitioner. See id. On J une 20, 2014, the Court granted Dhiabs request to enter the videotapes
into the Court record. See Dkt. 262.
However, because the Government has designated the videotapes provided to Dhiabs
counsel as classified at the Secret level, the videotape evidence filed by Dhiab has all been
filed under seal pursuant to the terms of the standing protective order that governs all
Guantanamo habeas proceedings. See Dkt. 57, 47. As required by the protective order, the
public docket sheet in this case contains only a Notice of Filing of classified documents as
exhibits to Dhiabs reply in support of his TRO and as evidence in support of his motion for an
injunction. See Dkts. 252, 257. Thus, the videotape evidence upon which the Court decided the
TRO application and will decide Dhiabs motion for preliminary injunctive relief is currently
under seal in the court file and not available for public inspection.
D. Previous Press Intervention in This Litigation
This is not the first time that members of the press have sought access to the records of
this proceeding. In 2009, the Associated Press, The New York Times, and USA TODAY (the

7
The motion requested a TRO requiring the Government to permit Mr. Dhiab to use a wheelchair and
mandating the continued videotaping of all forcible cell extractions and force-feedings. See Dkt. 255.
While Dhiabs papers have been unsealed, the Governments response remains inaccessible.

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Press Intervenors) sought to intervene for the limited purpose of enforcing the publics right of
access to court records and opposing a motion by the Government to designate all information in
its factual returns as protected from public disclosure under the omnibus Protective Order. See
In re Guantanamo Bay Detainee Lit., 624 F. Supp. 2d 27, 30 (D.D.C. 2009) (Detainee Lit.).
8

Then-Chief J udge Hogan granted both the intervention motion, id. at 31, and Press Intervenors
substantive request for relief, id. at 38, 39.
J udge Hogan first concluded that the Press Intervenors had standing to enforce the public
access right, noting D.C. Circuit law permit[ting] third parties to permissively intervene for the
limited purpose of seeking access to materials that have been shielded from public view either by
seal or by protective order. Id. at 31 (internal quotation marks omitted). The court then held
that both the First Amendment and common law access rights apply to the judicial records of
habeas proceedings, noting the consensus of the Circuits . . . that there has been a history of
public access to civil proceedings, id. at 36, and recognizing the significant positive role
public access plays in habeas proceedings, id. at 36-37. Allowing the Press Intervenors to
enforce these rights, the court rejected the Governments attempt[] to broadly designate
unclassified information as protected and subject to sealing. Id. at 31. J udge Hogan stressed
the critical importance and relevance of the habeas proceedings to the public, and concluded
that the Government had failed to satisfy its heavy burden to overcome the public access right.
Id. at 37. See also id. (publicly disclosing records from this proceeding would enlighten the
citizenry and improve perceptions of the proceedings fairness).
The Press Intervenors in that earlier proceeding did not challenge provisions of the
Protective Order that allow classified information submitted to the court to be sealed in the first

8
The protective order permits certain narrow categories of unclassified material to be sealed without a
case-by-case demonstration of need. See Dkt. 57 49(a)-(b).

-8-
instance, objecting then only to the Governments request to seal all unclassified material. See
id. at 30-31. While J udge Hogan thus did not at that time choose[] . . . to question, generally,
government determinations that providing classified information to the public would cause
serious damage to national security, id. at 37, neither did he foreclose such close scrutiny of the
Governments classification decisions at a later date.
E. Relief Requested
Press Applicants seek to unseal all videotape evidence submitted into the record of this
proceeding. See Dkt. 244 at 3.
9
While the Executive has the sole discretion to classify
information in its possession, only the judiciary has the authority to seal or unseal a judicial
record. See Detainee Lit. at 31-32 (quoting Bismullah v. Gates, 501 F.3d178, 188 (D.C. Cir.
2007)). The continued sealing of the videotape evidence submitted by Dhiab violates the
publics constitutional and common law rights to inspect and copy court records, as will now be
demonstrated.
ARGUMENT
I.
PRESS APPLICANTS SHOULD BE PERMITTED TO
INTERVENE TO ENFORCE THE RIGHT OF PUBLIC ACCESS
As was recognized earlier in this case, members of the news media have standing to
enforce the right of public access to judicial records, and a right to be heard on their sealing. See
Detainee Lit. at 31. See also, e.g., In re Application of the N.Y. Times Co. for Access to Certain
Sealed Court Records, 585 F. Supp. 2d 83, 87, 93-94 (D.D.C. Nov. 17, 2008) (granting
newspapers motion to unseal search warrant materials); Shingara v. Skiles, 420 F.3d 301, 305

9
Press Applicants seek access not only to the videotapes that have been offered to date by Dhiab in
support of his requests for injunctive relief, but also to any additional tapes that are made part of the
record of these proceedings.

-9-
(3d Cir. 2005) (granting newspapers motion to vacate protective order so that it can report the
news). Indeed, the Supreme Court repeatedly has held that representatives of the press and
general public must be given an opportunity to be heard on the question of their exclusion from
judicial proceedings. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982)
(internal quotation marks and citations omitted); see also In re Knight Publg Co., 743 F.2d 231,
234 (4th Cir. 1984) (same). This right to be heard undeniably extends to the sealing of court
records. See Wash. Post Co. v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (Robinson) (to
safeguard First Amendment access right, court must promptly allow interested persons the
opportunity to be heard on a motion to seal).
Intervention is the appropriate procedural vehicle for news organizations to vindicate the
public access rights. As the Court of Appeals has observed, every circuit court that has
considered the question has come to the conclusion that nonparties may permissively intervene
for the purpose of challenging confidentiality orders. EEOC v. Natl Childrens Ctr., Inc., 146
F.3d 1042, 1045-46 (D.C. Cir. 1998); see also In re Application of Newsday, Inc., 895 F.2d 74,
75, 79 (2d Cir. 1990); In re Wash. Post Co., 807 F.2d 383, 388 & n.4 (4th Cir. 1986).
Intervention is particularly appropriate here. The level of public interest in and concern
with the substantial issues regarding national security and administration of justice presented by
this case cannot be overstated. There is significant ongoing public controversy over the
Governments handling of the Guantanamo detainees involved in the long-running hunger
strikethe very issue to which the videotape evidence relates and the basis for Dhiabs motion
for an injunction. Without access to this evidence, the public cannot evaluate the credibility of
the allegations made against the Government, assess the fairness of the treatment of the

-10-
Guantanamo detainees by the Executive and by the Court, or exercise democratic control over
the institutions of government.
Press Applicants accordingly should be permitted to intervene for the limited purpose of
enforcing the right of public access to the videotape evidence submitted in this proceeding.
II.
THE GOVERNMENT MUST SATISFY A HEAVY BURDEN
TO DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE
A. The Press and Public Have a Qualified Right
To Inspect and Copy the Videotape Evidence
In Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978), the Supreme Court
recognized a common law right to inspect and copy . . . judicial records and documents. See
also In re NBC, 653 F.2d 609, 612 (D.C. Cir. 1981) (same). Subsequently, in Richmond
Newspapers Inc. v. Virginia, 448 U.S. 555 (1980), the Court held that the express guarantees of
free speech, freedom of the press and the right to petition the government enshrined in the First
Amendment carry with them an implicit right of public access to certain government
information. It is now well settled that [t]he first amendment guarantees the press and the
public a general right to court proceedings and court documents unless there are compelling
reasons demonstrating why it cannot be observed. Robinson, 935 F.2d at 287.
10
It is also well
settled that the First Amendment and common law access rights apply to the proceedings and

10
See, e.g., Press-Enterprise v. Super. Ct., 478 U.S. 1, 13-14 (1986) (Press-Enterprise II) (recognizing
constitutional right of access to pretrial hearings); Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006)
(recognizing constitutional and common law right of access to motion papers and supporting
documentary evidence); N.Y. Civil Liberties Union v. NYC Trans. Auth., 684 F.3d 286, 298 (2d Cir. 2012)
(noting nearly universal recognition of right of access to evidence).

-11-
records of habeas cases,
11
and it is law of this case that these access rights extend to the records
of this habeas proceeding. Detainee Lit., 624 F. Supp. at 38-39.
The public access rights unquestionably attach to video recordings that are introduced as
exhibits or otherwise become part of the record of a court proceeding, such as the videotape
evidence now at issue.
12
The right to access this evidence includes not only the right to inspect,
but also the right to copy evidence that is in a form that can be copied without any significant
risk of impairing the integrity of the evidence. Application of NBC, 635 F.2d 945, 952 (2d Cir.
1980).
13
And this right to inspect and copy is a right of contemporaneous access to evidence. As
held in In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1334 n.7 (D.C. Cir.
1985), the right attaches no later than the time the material in question is accepted into evidence
at trial.
14
See Lugosch v. Pyramid Co., 435 F.3d 110, 125 (2d Cir. 2006).

11
E.g., Osband v. Ayers, 2007 WL 3096113, at *1 (E.D. Cal. Oct. 22, 2007) (constitutional right);
Ramirez v. Attorney Gen. of the State of N.Y., 1999 WL 1059966, at *4 (S.D.N.Y. Nov. 22, 1999) (same);
Ashworth v. Bagley, 351 F. Sup. 2d 786, 792 (S.D. Ohio 2005) (common law right); see also Newman v.
Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (constitutional access right extends to proceedings which
pertain to the release or incarceration of prisoners and the conditions of their confinement).
12
See, e.g., In re ABC, 537 F. Supp. 1168, 1170 n.4 (D.D.C. 1982) (the right of access extends to records
which are not in written form, for example, videotapes); United States v. Graham, 257 F.3d 143, 153-54
(2d Cir. 2001) (videotape relied upon by court subject to access right even though not admitted into
evidence); Application of CBS, Inc., 828 F.2d 958 (2d Cir. 1987) (common law access right applies to
videotape of deposition presented to jury); United States v. Criden, 648 F.2d 814 (3d Cir. 1981) (same).
13
See also, e.g., In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (recognizing right to copy videotape material
admitted into evidence); United States v. Guzzino, 766 F.2d 302, 303-04 (7th Cir. 1985) (reversing as
abuse of discretion trial judges refusal to permit media to copy audiotapes admitted in evidence); Criden,
648 F.2d at 829-30 (same for videotapes admitted into evidence).
14
See also United States v. Myers, 635 F.2d 942, 945 (2d Cir. 1980) (permitting media to copy
videotape evidence on a daily basis during trial); Valley Broad. Co. v. U.S. Dist. Ct., 798 F.2d 1289,
1297 (9th Cir. 1986) (same); United States v. Abegg, 21 Media L. Rep. (BNA) 1442, 1444 (S.D. Fla.
1993) (ordering parties to make copies of videotape available to the public when admitted into
evidence); United States v. Torres, 602 F. Supp. 1458, 1460 (N.D. Ill. 1985) (same); United States v.
Mouzin, 559 F. Supp. 463, 464 (C.D. Cal. 1983) (same).

-12-
Both the constitutional and common law access rights exist to ensure that courts have a
measure of accountability and to promote confidence in the administration of justicegoals
that cannot be accomplished without access to testimony and documents that are used in the
performance of Article III functions. United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.
1995). The access rights promote an informed and enlightened public opinion, United States
v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976), revd, Nixon v. Warner Commcns, 435 U.S.
589 (1978), which is the most potent of all restraints upon misgovernment, Grosjean v. Am.
Press Co., 297 U.S. 233, 250 (1936). Closed proceedings and records, in contrast, inhibit the
crucial prophylactic aspects of the administration of justice and lead to distrust of the judicial
system if, for example, the outcome is unexpected and the reasons for it are hidden from public
view. Richmond Newspapers, 448 U.S. at 571. See Press Enterprise Co. v. Super. Ct., 464 U.S.
501, 508 (1984) (Press-Enterprise I) (openness enhances both the basic fairness of the
criminal trial and the appearance of fairness so essential to public confidence in the system).
These objectives apply with special force to this proceeding that addresses the propriety
of the Governments use of force-feedingsa tactic that has been widely condemned, including
by former military doctors. See, e.g., Dkts. 175-2 (Declaration of Steven H. Miles, MD); 175-3
(Declaration of Stephen N. Xenakis, MD); 203-6 (Second Declaration of Stephen N. Xenakis,
MD). Norm-setting institutions around the world, including the American Medical Association
and the World Medical Association, have made clear that force-feeding a competent hunger
striker is always unethical.
15

15
Institute on Medicine as a Profession, Ethics Abandoned: Medical Professionalism and Detainee Abuse
in the War on Terror xxv (2013), available at http://www.imapny.org/wp-
content/themes/imapny/File%20Library/Documents/IMAP-EthicsTextFinal2.pdf. See also J. Lazarus Ltr.
To Hon. Chuck Hagel, dated Apr. 25, 2013, available at http://www.jhsph.edu/research/centers-and-
institutes/center-for-public-health-and-human-rights/_pdf/AMA%20Hunger%20Strikes%20Letter.pdf

-13-
The public has a compelling interest in knowing whether the Government is violating
international law or constitutional rights through its forced-feedings as petitioner contends. In
such matters undertaken in the name of national security, the press and the public serve as
perhaps the only check on abusive government practices. Detroit Free Press v. Ashcroft, 303
F.3d 681, 704 (6th Cir. 2002).
B. The Government Bears a Heavy Burden to Abridge
The Public Right of Access to the Videotape Evidence
The Supreme Court has mandated a strict test for the closure of judicial proceedings or
records where the constitutional access right applies. While different formulations have been
used by various courts to define the showing that must be made, the standard applied by the
Supreme Court to overcome the constitutional right encompasses four distinct factors:
1. There must be a substantial probability of prejudice to a compelling
interest. Anyone seeking to restrict the access right must demonstrate a substantial
probability that openness will cause harm to a compelling governmental interest. See,
e.g., Richmond Newspapers, 448 U.S. at 581; Press-Enterprise I, 464 U.S. at 510; Press-
Enterprise II, 478 U.S. at 13-14; Robinson, 935 F.2d at 287. In Press-Enterprise I, the
Supreme Court stressed that a denial of access is permissible only when essential to
preserve higher values. 464 U.S. at 510. In Press-Enterprise II it specifically held that
a reasonable likelihood standard is not sufficiently protective of the access right, and
directed that a substantial probability standard must be applied. 478 U.S. at 14-15.
2. There must be no alternative to adequately protect the threatened
interest. Anyone seeking to defeat access must further demonstrate that there is nothing
short of a limitation on access that can adequately protect the threatened interest. As the
Second Circuit has explained, a trial judge must consider alternatives and reach a
reasoned conclusion that closure is a preferable course to follow to safeguard the interests
at issue. In re The Herald Co., 734 F.2d 93, 100 (2d Cir. 1982). See also, e.g., Press-
Enterprise II, 478 U.S. at 13-14.
3. Any restriction on access must be narrowly tailored. The Supreme
Court has long recognized that even legitimate and substantial governmental interests
cannot be pursued by means that broadly stifle fundamental personal liberties, when the
end can be more narrowly achieved. Shelton v. Tucker, 364 U.S. 479, 488 (1960).

(indicating the American Medical Associations opposition to force feeding any detainee who is
competent to decide whether he wishes to eat).

-14-
Thus, where no adequate alternative to closure or sealing exists, any limitation imposed
on public access must be no broader than necessary to protect the threatened interest.
See, e.g., Press-Enterprise II, 478 U.S. at 13-14; Robinson, 935 F.2d at 287; Lugosch,
435 F.3d at 124.
4. Any restriction on access that is imposed must be effective. Any order
limiting access must be effective in protecting the threatened interest for which the
limitation is imposed. As articulated in Press-Enterprise II, 478 U.S. at 14, the party
seeking secrecy must demonstrate that closure would prevent the harm sought to be
avoided. See In re The Herald Co., 734 F.2d at 101 (closure order cannot stand if the
information sought to be kept confidential has already been given sufficient public
exposure); Associated Press v. U.S. Dist. Ct., 705 F.2d 1143, 1146 (9th Cir. 1983) (must
be a substantial probability that closure will be effective in protecting against the
perceived harm (citation omitted)).
When a party seeks to restrict the right of access, it is the duty of the court to make
factual findings demonstrating that these standards have been met. See, e.g., In re Wash. Post
Co., 807 F.2d at 392 (requiring court to make specific factual findings before sealing
documents or a courtroom); Phoenix Newspapers, Inc. v. U.S. Dist. Ct. for the Dist. of Ariz., 156
F.3d 940, 949 (9th Cir. 1998) (same). The basis for closure must be explained in specific, on the
record, findings with sufficient detail to be reviewed on appeal. See Press-Enterprise II, 478
U.S. at 13-14; In re The Herald Co., 734 F.2d at 100; Associated Press, 705 F.2d at 1147.
C. The Same Strict Standards Apply When the Government
Seeks to Seal Records In the Interest of National Security
As an element of the supreme law of the land, the constitutional access right necessarily
supersedes any contrary law, rule or regulation, including Executive Order 13526 under which
Executive Branch officers designate information as classified. E.g., In re N.Y. Times, 828 F.2d
110, 115 (2d Cir. 1987) (obviously, a statute cannot override a constitutional right). Where a
judicial record is subject to the constitutional access right, the Government must still demonstrate
a proper basis for sealing the record and abridging the access right, and the Court must make
findings showing that the constitutional standards have been met.

-15-
Of course, national security can constitute a compelling interest sufficient to require the
sealing of judicial records, but an independent judicial assessment remains critically important.
As J ustice Black cautioned in the Pentagon Papers case:
The word security is a broad, vague generality whose contours should
not be invoked to abrogate the fundamental law embodied in the First
Amendment. The guarding of military and diplomatic secrets at the
expense of informed representative government provides no real security
for our Republic.
N.Y. Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black, J ., concurring). Accord Union
Oil Co. v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (disputes about claims of national security
are litigated in the open.); United States v. Progressive, Inc., 467 F. Supp. 990, 995 (W.D. Wis.
1979) (scrutinizing basis for government claim that publication of a magazine article would
increase thermonuclear proliferation and irreparably impair the national security).
In deciding whether a judicial record may be sealed from public inspectioneven a
record the Executive Branch has classifiedthe Court must make its own determination that the
Government has satisfied the constitutional standard. Otherwise, an uncritical deference to
vague, poorly explained arguments for withholding broad categories of information can
quickly eviscerate the principles of openness in government. Ctr. for Natl Sec. Studies v. U.S.
Dept of Justice, 331 F.3d 918, 937 (D.C. Cir. 2003) (Tatel, J ., dissenting). As J udge Hogan
underscored earlier in this case, it is the court, not the Government, that has the discretion to
seal a judicial record. Detainee Lit., 624 F. Supp. 2d at 31 (quotation marks and citation
omitted). Accord N.Y. Times, 403 U.S. at 714 (refusing to grant a prior restraint against
publication of classified information).
Indeed, courts regularly look behind claims that national security justifies secrecy where
First Amendment rights are at stake. In a challenge to the CIAs removal of classified

-16-
information from a book manuscript, for example, the D.C. Circuit articulated a standard to
apply when the need to protect classified information competes with First Amendment rights:
While we believe courts in securing such determinations should defer to
CIA judgment as to the harmful results of publication, they must
nevertheless satisfy themselves from the record, in camera or otherwise,
that the CIA in fact had good reason to classify, and therefore censor, the
materials at issue. . . .
[W]hile the CIAs tasks include the protection of the national security
and the maintenance of the secrecy of sensitive information, the
judiciarys tasks include the protection of individual rights. Considering
that speech concerning public affairs is more than self-expression; it is
the essence of self-government, and that the line between information
threatening to foreign policy and matters of legitimate public concern is
often very fine, courts must assure themselves that the reasons for
classification are rational and plausible ones.
McGehee v. Casey, 718 F.2d 1137, 1148-50 (D.C. Cir. 1983) (internal marks and citations
omitted). See also Stillman v. CIA, 319 F.3d 546, 548-49 (D.C. Cir. 2003) (courts have duty to
review classification claim used to censor former CIA employee); Berntsen v. CIA, 618 F. Supp.
2d 27, 29-30 (D.D.C. 2009) (same).
The Court of Military Appeals applied a similar standard in weighing a claimed need to
protect security against a defendants Sixth Amendment public trial right:
Although the actual classification of materials and the policy
determinations involved therein are not normal judicial functions,
immunization from judicial review cannot be countenanced in situations
where strong countervailing constitutional interests exist which merit
judicial protection. Before a trial judge can order the exclusion of the
public on this basis, he must be satisfied from all the evidence and
circumstances that there is a reasonable danger that presentation of these
materials before the public will expose military matters which in the
interest of national security should not be divulged.
United States v. Grunden, 2 M.J . 116, 122 (C.M.A. 1977) (citations omitted). Put differently,
even when the interest sought to be protected is national security, the Government must

-17-
demonstrate a compelling need to exclude the public. United States v. Hershey, 20 M.J . 433,
436 (C.M.A. 1985).
Case law in federal courts under the Classified Information Procedures Act, 18 U.S.C.,
App. 3 (2000) (CIPA), confirms that the fact of classification does not automatically trump the
constitutional access right. CIPA does not purport to override the requirements of the First
Amendment with respect to public access to a criminal prosecutionnor could it. E.g., United
States v. Rosen, 487 F. Supp. 2d 703, 710, 716-17 (E.D. Va. 2007) (a statute cannot defeat a
constitutional right and governments ipse dixit that information is damaging to national
security is not sufficient to close the courtroom doors). As the Fourth Circuit aptly noted in
applying CIPA procedures:
the mere assertion of national security concerns by the Government is
not sufficient reason to close a hearing or deny access to documents.
Rather, [courts] must independently determine whether, and to what
extent, the proceedings and documents must be kept under seal.
United States v. Moussaoui, 65 F. Appx 881, 887 (4th Cir. 2003) (unpublished) (citations
omitted). Thus, to seal classified information where CIPA is involved, the government must still
make a sufficient showing that disclosure of the information sought would impair identified
national interests in substantial ways, and the court must conduct an independent review to
determine that closure is narrowly tailored to protect national security. United States v. Aref,
533 F.3d 72, 82-83 (2d Cir. 2008); In re Wash. Post, 807 F.2d at 393 (district court not excused
under CIPA from making the appropriate constitutional inquiry); United States v. Poindexter,
732 F. Supp. 165, 167 n.9 (D.D.C. 1990) (CIPA obviously cannot override a constitutional right
of access); United States v. Pelton, 696 F. Supp. 156, 159 (D. Md. 1986) (same).
16

16
Even in resolving statutory access rights under the Freedom of Information Act (FOIA), courts
recognize that deference to the governments assertion of a national security concern is not equivalent to
acquiescence, and that government declarations invoking national security must provide a basis for the

-18-
The Fourth Circuit has also forcefully explained the importance of a separate judicial
determination of the need to close a judicial proceeding to protect classified information:
[T]roubled as we are by the risk that disclosure of classified information
could endanger the lives of both Americans and their foreign informants,
we are equally troubled by the notion that the judiciary should abdicate
its decision-making responsibility to the executive branch whenever
national security concerns are present. History teaches us how easily the
spectre of a threat to national security may be used to justify a wide
variety of repressive government actions. A blind acceptanceby the
courts of the governments insistence on the need for secrecy, without
notice to others, without argument, and without a statement of reasons,
would impermissibly compromise the independence of the judiciary and
open the door to possible abuse.
In re Wash. Post, 807 F.2d at 391-92.
III.
THE GOVERNMENT HAS NOT MET ITS BURDEN TO
DENY PUBLIC ACCESS TO THE VIDEOTAPE EVIDENCE
On the public record here, there is no basis to conclude that the Government has satisfied
its burdens to justify continued sealing.
A. Classification at the Secret Level Does Not Satisfy
The Constitutional Standard to Seal a Court Record
The record reflects that the videotape evidence submitted by Dhiab is classified at the
Secret level. See Dkt. 244 at 2, 3. Information can be classified as Secret under Executive
Order 13526 if it reasonably could be expected to cause serious damage to the national
security. Exec. Order 13526, dated Dec. 29, 2009, at 1.2(a)(2)). This classification standard is
a low and broad standard that, alone, does not satisfy the strict standards for closure imposed by
the Supreme Court in Press Enterprise II.

FOIA requester to contest, and the court to decide, the validity of the withholding. Coldiron v. Dept of
Justice, 310 F. Supp. 2d 44, 49 (D.D.C. 2004) (internal quotations omitted). See also, e.g., Goldberg v.
U.S. Dept of State, 818 F.2d 71, 77 (D.C. Cir. 1987) (a district court is required to conduct a de novo
review of the classification decision, with the burden on the agency claiming the exemption); ACLU v.
Dept of State, 878 F. Supp. 2d 215, 223, 224 (D.D.C. 2012) (same).

-19-
In Press Enterprise II, the Supreme Court specifically rejected a reasonable likelihood
of harm standard as insufficiently protective of the publics constitutional access right, holding to
the contrary that the Constitution requires a finding of a substantial probability of harm before
the public access right may be denied. 478 U.S. at 14-15. See, e.g., In re Wash. Post Co., 807
F.2d at 392-93 (requiring substantial probability of harm to national security to close a
hearing); Robinson, 935 F.2d at 290-92 (requiring substantial probability of harm to defendant
to seal a plea agreement); Oregonian Publg Co. v. Dist. Ct., 920 F.2d 1462, 1466 (9th Cir.
1990) (same); United States v. Antar, 38 F.3d 1348, 1359-60 (3d. Cir. 1994) (requiring
substantial probability of harm to jurors to seal voir dire transcript). If a document is classified
only at the secret level, it bears no indication that the Press Enterprise standard has been met,
or even that the Executive branch itself believes that standard can be met.
Beyond the classification level of the videotape evidence, there are many reasons to
question whether any proper ground exists for denying public access to it. Many studies have
concluded that a great deal of information whose disclosure would be entirely harmless is
nonetheless classified by the governmentindeed, it has been estimated that as much as 50%
of classified information is not properly classified.
17
The problem is not new. As a former
Solicitor General once put it:

17
See Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing, Hearing Before
the Subcomm. on National Security, Emerging Threats, and International Relations of the Comm. on
Government Reform, 108th Cong. 263 at 82-83 (2004) (statement of J . William Leonard, Director,
Information Security Oversight Office, National Archives and Records Administration). See also Pub. L.
111-258, 2, 124 Stat. 2648 (Oct. 7, 2010) codified at 6 U.S.C. 124m & 50 U.S.C. 135d (the
Reducing Over-Classification Act) (congressional finding that the over-classification of information . . .
needlessly limits stakeholder and public access to information.); Senate Report of the Commission on
Protecting and Reducing Government Secrecy, 103rd Cong., 1997, S. Doc. 105-2, at xxi (GPO 1997)
(The classification system . . . is used too often to deny the public an understanding of the policymaking
process, rather than for the necessary protection of intelligence activities and other highly sensitive
matters.), available at http://www.access.gpo.gov/congress/commissions/secrecy/index.html.

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It quickly becomes apparent to any person who has considerable
experience with classified material that there is massive
overclassification and that the principal concern of the classifiers is not
with national security, but rather with governmental embarrassment of
one sort or another.
Erwin Griswold, Secrets Not Worth Keeping, Wash. Post, Feb. 15, 1989, at A25.
Furthermore, if the government exceeds its classification authority, for example, by
classifying information to conceal unlawful behavior or prevent embarrassment, the fact of
classification itself does not possibly justify an abridgment of First Amendment rights. See, e.g.,
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 139-140 (1951) (Attorney General
exceeded authority conferred by executive order; injunctive relief granted); ACLU v. Office of
Dir. Natl Intelligence, 2011 WL 5563520, at *5-6, 12 (S.D.N.Y. Nov. 15, 2011) (classification
to conceal violations of law, inefficiency, or administrative error, or to prevent embarrassment
is improper) (internal marks and citations omitted). These concerns underscore the need for an
independent judicial assessment of whether disclosure of the videotape evidence would pose a
sufficient security threat to justify a denial of the publics constitutional rights.
The concerns take on particular importance given the subject matter of the videotape
evidence. The potential to use the classification system to facilitate selective disclosures about
the treatment of the Guantanamo detainees to sway public opinion is very real. The book Hard
Measures, written by the former CIA deputy director responsible for developing and
implementing the controversial program for harsh interrogation of detainees, for example,
provides extensive details about specific CIA interrogation techniqueshow they were used,
when they were used, in what order they were usedand specific facts about the interrogation of
specific Guantanamo detainees.
18
These disclosures were made, by the authors admission, to

18
See, e.g., J ose A. Rodriguez, J r., Hard Measures (2012) at 55-57 (detailing the creation of black
sites); 65-70 (detailing interrogation techniques and their order of use); 70 (noting that defendant

-21-
convince the public that the techniques were rarely used, safe and humaneand that [n]o one
enjoyed doing it. Id. at 67, 65-66, 68-69, 70. Authorizing such selective disclosures, while
barring public access to other information concerning the treatment of detainees at Guantanamo,
itself raises significant First Amendment concerns.
The First Amendment requires the Government to demonstrate to this Court that a
compelling need demands the videotape evidence to be kept from the public, and nothing on the
public record indicates the Government has met its burden.
B. No Proper Basis Exists to Seal Information
That is Largely Known to the Public
The public record actually indicates that no proper purpose is served by sealing the
videotape evidence. No credible risk to national security arises from the public disclosure in a
judicial proceeding of information that is already known, whether classified or not.
The circumstances of the treatment of the Guantanamo detainees have been the subject of
significant attention worldwide and raise issues of profound public interest. Moreover, the
details of the procedures used to extract detainees from their cells and to forcibly feed them
enterally are widely known and have been published both in filings in these proceedings and in
media throughout the world.
For example, Guantanamo detainee Mohammed Rabbani, who, like Mr. Dhiab, has
participated in the hunger strike and has been forcibly extracted from his cell and fed
nasogastrically, has described in detail in court filings the steps of the forcible cell extraction
(FCE) and enteral feeding procedures, including the set-up of the room in which the strikers
are force-fed, the methods used to restrain each detainee in a restraint chair, the practices for

Muhammad counted the seconds off with the fingers of his hand while being waterboarded); 88-96
(detailing the interrogation of defendant Muhammad).

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inserting the feeding tube through each detainees nose and extending it into his stomach, the
unnecessarily large size of the tubes used, the speed with which the food is pumped into each
detainees stomach, and the negative consequences of these high-speed force-feedings, including
vomiting and spontaneous and uncontrollable defecation during the force-feeding. See Dkt. 203-
3 (Declaration of Clive A. Stafford Smith on behalf of Mohammed Ahmad Ghulam Rabbani)
16-57. See also Dkt. 175-1 (Declaration of Cori Crider on behalf of Ahmed Belbacha, Shaker
Aamer, Abu Wael (J ihad) Dhiab, and Nabil Hadjarab) at 16 73 (quoting Mr. Dhiab as stating
that during the feedings, he is forced into a chair, strapped and shackled uncomfortably tightly,
and that six riot force members hold down his head, throat, neck, hands, and legs with severe
pressure).
Graphic descriptions of cell extractions and force-feedings have also been widely
published outside the context of these proceedings. One Guantanamo detainee has published a
column describing a force-feeding routine involving (among other things) the guards restraining
me to the chair with my arms cuffed behind my back. The chest strap is then tightened, trapping
my arms between my torso and the chairs backrest. This is done despite the fact that the torture
chair features built-in arm restraints. It is extremely painful to remain in this position. Moath
Al-Alwi, My Life at Guantanamo, Al-J azeera, J uly 7, 2013, available at
http://www.aljazeera.com/indepth/opinion/2013/07/201373145723725101.html.
In addition, the publication of the leaked March 5, 2013 Standard Operating Procedure
for the Medical Management of Detainees on Hunger Strike in May 2013 further removed any
perceived mystery surrounding the techniques used to force-feed detainees at Guantanamo. See
J ason Leopold, Revised Guantanamo force-feed policy exposed, Al-J azeera, May 13, 2013,
available at http://www.aljazeera.com/humanrights/2013/05/201358152317954140.html. The

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30-page document (the SOP), which is itself part of the record in this case, see Dkt. 203-7, sets
forth in deliberate detail the medical procedures that are indicated to preserve health and life of a
hunger-striking detainee, and which shall be implemented without consent from the detainee, id. at
2; see also Dkt. 203-1 at 13-17 (describing procedures set forth in March 2013 SOP).
19
Needless to
say, these medical procedures include force-feeding nasogastrically while under restraint.
The procedures set forth in the SOP have been published not only in print, but also on video,
most notably in a widely reported short documentary in which Yasiin Bey, the rapper and actor
formerly known as Mos Def, consented to be restrained and force-fed using the procedures set forth
in the March 2013 SOP.
20
See, e.g., Emily Greenhouse, Mos Defs Act of Protest, New Yorker, J uly
9, 2013, available at http://www.newyorker.com/online/blogs/culture/2013/07/mos-def-guantanamo-
forcefeeding-video-protest.html. While the result does not capture the force used to take detainees
from their cells in anticipation of forced nasogastric feeding, it does unflinchingly reflect the enteral-
feeding process and the extreme pain it can cause.
In assessing whether the publics right to inspect the videotape evidence documenting the
Governments use of these procedures, Press Applicants respectfully submit that the Court
should take notice of the extent to which the substance of the classified information is already
publicly known. The presence on the videotape of information that remains classified but

19
As described in a previous filing in this case, see Dkt. 203-2 at 1 2-4, Dkt. 203-1 at 16, the SOP
apparently was revised by protocols dated November 14, 2013, and December 16, 2013. Unredacted
copies of these documents have not been made publicly available, but Dhiabs counsel has indicated in
public court filings that neither addresses the use of the restraint chair. See Dkt. 203-1 at 16; see also
Dkts. 203-8 (redacted version of the December 2013 revised protocol); Dkt. 203-2 (describing
communications with Government regarding revised protocols and their protected status). The
Government has represented that there is a new, separate protocol setting forth guidelines for use of the
restraint chair, but it has not been provided to petitioners counsel, or (in redacted form) to the public. On
J une 19, 2014, Dhiab moved to compel the Government to produce these protocols. See Dkt. 261.
20
See http://thelede.blogs.nytimes.com/2013/07/10/mos-def-video-puts-force-feeding-in-spotlight/;
http://www.reuters.com/article/2013/07/26/us-usa-guantanamo-rapper-idUSBRE96P11H20130726; and
http://www.washingtonpost.com/blogs/reliable-source/wp/2013/07/08/mos-def-aka-yasiin-bey-
undergoes-force-feeding-to-protest-guantanamo-measures/.

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nonetheless already is known publicly cannot constitute the type of compelling need for secrecy
that the Press-Enterprise test requires. See, e.g., Robinson, 935 F.2d at 291-92 (disclosure could
not pose additional threat in light of already public information); Grunden, 2 M.J . at 123 n.18
(the public nature of the material [would] establish a separate ground prohibiting exclusion of
the public); In re Charlotte Observer, 882 F.2d 850, 854-55 (4th Cir. 1989) ([w]here closure is
wholly inefficacious to prevent a perceived harm, that alone suffices to make it constitutionally
impermissible).
At a minimum, the information already known to the public renders the complete sealing
of the videotapes in their entirety overbroad. If some information disclosed on the videotape
could properly be withheld from the public, a redacted version should be publicly filed, deleting
only those facts for which disclosure would create a substantial likelihood of harm to national
security or personal safety. Press-Enterprise II, 478 U.S. at 13-14; Robinson, 935 F.2d at 287.
The videotape evidence of the force-feeding procedures used at Guantanamo should be
available for public inspection along with the other material already in the public record that
documents the procedures being used. The public has a substantial interest in evidence documenting
the Governments response to the detainees hunger strike, which is the latest chapter in a long
history of hunger strikes to protest conditions of confinement and to make political statements:
Hunger strikes were first recognized in the United States in the early
1900s as prisoners used them to express political views on child
starvation, animal rights, and female suffrage. Internationally, hunger
strikes have been recognized as a form of political speech since 1889
when Vera Figner, a social revolutionary in tsarist Russia, protested
against authority methods used by the prison director. The twentieth
century has also witnessed several famous prison hunger strikes
including the 1981 Irish Republican Army hunger strike (the second
of such strikes) in which ten prisoners starved to death in an effort to
force the government to recognize political status for Republican
prisoners and the 1993 Haitian hunger strike in the United
States Guantnamo HIV detention camp which successfully

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pressured the Clinton administration to overturn the HIV exclusion
rule.
Amanda Gordon, The Constitutional Choices Afforded to A Prisoner on Hunger Strike:
Guantanamo, 9 Santa Clara J . Intl L. 345, 350-51 (2011) (footnotes omitted).
Force-feeding in response to prisoner hunger strikes dates back at least a century, when
womens suffragist Alice Paul went on a highly publicized hunger strike and was force-fed in
response while incarcerated for her political activities. Paul reportedly feared the force feedings
dreadfully. J anice L. Richter, We Have Waited So Long: The Story of Alice Paul, New J ersey
Lawyer, 171-SEP N.J . Law. 25 (1995). The use of force-feeding in American penal institutions is
sanctioned by the Bureau of Prisons, see 28 C.F.R. 549.65, but remains subject to significant
debate, see Tracey M. Ohm, What They Can Do About It: Prison Administrators Authority to
Force-Feed Hunger-Striking Inmates, 23 Wash. U. J . L. & Poly 151, 158-159 (2007). The
controversial tactic is being stretched to its limits at Guantanamo, where the detainees have been on a
hunger strike stretching on for yearslonger than any other prisoner hunger-strike in documented
history. See George J . Annas, American Vertigo: Dual Use, Prison Physicians, Research, and
Guantanamo, 43 Case W. Res. J . Intl L. 631, 643 (2011).
Particularly given the relevance of the videotape evidence to the ongoing intense debate over
the use of force-feedings, no proper basis exists to withhold from the pubic the videotape evidence
documenting the Governments response to the hunger strike at Guantanamo.


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CONCLUSION
For each and all the forgoing reasons, Press Applicants respectfully submit that this Court
should grant Press Applicants motion to intervene and should order that all videotapes of
forcible cell extractions and force feedings that are entered into the record in this action be
unsealed and made available for public inspection and copying.


J ulie B. Ehrlich*

New York, NY 10036
(212) 850-6100
dschulz@lskslaw.com




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Civ. No. 05-1457 (GK)

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CERTIFICATE OF CORPORATE DISCLOSURE

Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure and Rule 7.1 of the Local
Rules of this Court, Hearst Corporation, Inc., ABC, Inc., The Associated Press, Bloomberg L.P.,
CBS Broadcasting Inc., The Contently Foundation, Dow J ones & Company, Inc., First Look
Media, Inc., Guardian US, The McClatchy Company, National Public Radio, Inc., The New
York Times Company, Reuters America LLC, Tribune Publishing Company, LLC, USA
TODAY, and The Washington Post (together, Press Applicants) provide the following
corporate disclosure:
I, the undersigned, counsel of record for the Press Applicants, certify that to the best of
my knowledge and belief, the following is true and correct:
Hearst Corporation, Inc. is one of the nations largest diversified media and
information companies. Its major interests include ownership of 15 daily and 34 weekly
newspapers, including the Houston Chronicle, San Francisco Chronicle, San Antonio Express-
News and Albany Times Union; and hundreds of magazines around the world, including Good
Housekeeping, Cosmopolitan, ELLE and O, The Oprah Magazine; and 29 television stations,
which reach a combined 18 percent of U.S. viewers; ownership in leading cable networks.
Hearst Corporation is privately held by The Hearst Family Trust and has no other parent. None

-2-

of Hearsts subsidiaries or affiliates is publicly held, with the exception of Fimilac SA (owner of
Fitch Group, Inc.), in which Hearst and/or its subsidiaries own a fifty percent interest.
ABC, Inc., alone or through its subsidiaries, owns and operates, inter alia, ABC News,
abcnews.com, and local broadcast television stations which regularly gather and report news to
the public. Programs produced and disseminated by ABC News include World News with Diane
Sawyer, 20/20, Nightline, Good Morning America and This Week. ABC, Inc.s parent
corporation is The Walt Disney Company, a publicly traded corporation.
TheAssociated Press (AP) is a news cooperative organized under the Not-for-Profit
Corporation Law of New York, and owned by its 1,500 U.S. newspaper members. The APs
members and subscribers include the nations newspapers, magazines, broadcasters, cable news
services and Internet content providers. The AP operates from 300 locations in more than 100
countries. On any given day, APs content can reach more than half of the worlds population.
AP has no parents, subsidiaries or affiliates that have any outstanding securities in the hands of
the public.
Bloomberg L.P. operates Bloomberg News, a 24-hour global news service based in New
York with more than 2,400 journalists in more than 150 bureaus around the world. Bloomberg
supplies real-time business, financial, and legal news to the more than 319,000 subscribers to the
Bloomberg Professional service world-wide and is syndicated to more than 1000 media outlets
across more than 60 countries. Bloomberg television is available in more than 340 million
homes worldwide and Bloomberg radio is syndicated to 200 radio affiliates nationally. In
addition, Bloomberg publishes Bloomberg Businessweek, Bloomberg Markets and Bloomberg
Pursuits magazines with a combined circulation of 1.4 million readers and Bloomberg.com and
Businessweek.com receive more than 24 million visitors each month. In total, Bloomberg

-3-

distributes news, information, and commentary to millions of readers and listeners each day, and
has published more than one hundred million stories. Bloomberg L.P.s parent corporation is
Bloomberg Inc., which is privately held.
CBS Broadcasting, Inc. produces and broadcasts news, public affairs, and entertainment
programming. Its CBS News Division produces morning, evening, and weekend news
programming, as well as news and public affairs newsmagazine shows such as 60 MINUTES
and 48 HOURS INVESTIGATES. CBS Broadcasting also directly owns and operates television
stations nationwide, including WCBS-TV in New York. CBS Broadcasting Inc. is a wholly-
owned subsidiary of CBS Corporation, which is a publicly-traded company.
The Contently Foundation (d/b/a Contently.org) is an independent not-for-profit
organization based in New York City that funds investigative long-form journalism and provides
non-profits with the tools to better tell their own stories. Contently.org is privately held. It has
no parent company and has no affiliates or subsidiaries that are publicly owned.
Dow Jones & Company, Inc., a global provider of news and business information, is the
publisher of The Wall Street Journal, Barrons, MarketWatch, Dow Jones Newswires, and other
publications. Dow J ones maintains one of the worlds largest newsgathering operations, with
more than 1,800 journalists in more than approximately fifty countries publishing news in
several different languages. Dow J ones also provides information services, including Dow J ones
Factiva, Dow J ones Risk & Compliance, and Dow J ones VentureSource. News Corporation, a
publicly held company, is the indirect parent corporation of Dow J ones. Ruby Newco, LLC, a
subsidiary of News Corporation and a non-publicly held company, is the direct parent of Dow
J ones. No publicly held company directly owns 10% or more of the stock of Dow J ones.

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First Look Media, Inc. is a new non-profit digital media venture that produces The
Intercept, a digital magazine focused on national security reporting. First Look Media, Inc. is a
non-profit non-stock corporation. No publicly-held corporation holds an interest of 10% or more
in First Look Media, Inc. There are no parent companies, subsidiaries or affiliates with any
outstanding securities in the hands of the public.
Guardian US is a digital news service organized in New York as Guardian News and
Media LLC and based in New York. It was established in 2011 to cover U.S. and international
news for an American audience as the U.S. online presence of the London-based newspaper The
Guardian, one of Englands oldest and most respected news outlets. Guardian US produces
news articles, opinion, live-blogs, and interactive and multimedia content that currently reaches
over 20 million online U.S. readers each month. Guardian US is a privately held company that
has no publicly traded parents, subsidiaries or affiliates, and no publicly traded company owns
5% or more of its parent.
The McClatchy Company, through its affiliates, is the third-largest newspaper publisher
in the United States with 29 daily newspapers and related websites, including the The Miami
Herald, as well as numerous community newspapers and niche publications. The McClatchy
Company does not have a parent corporation. The McClatchy Company is publicly traded on the
New York Stock Exchange under ticker symbol MNI. No publicly held corporation owns 10%
or more of the stock of The McClatchy Company.
National Public Radio, Inc. (NPR) is an award-winning producer and distributor of
noncommercial news programming. A privately supported, not-for-profit membership
organization, NPR serves a growing audience of more than 26 million listeners each week by
providing news programming to 285 members stations that are independently operated,

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noncommercial public radio stations. In addition, NPR provides original online content and
audio streaming of its news programming. NPR.org provides news and cultural programming
including audio archives of past programming. National Public Radio, Inc. has no parent
company and issues no stock.
The New York Times Company is the owner of The New York Times and the
International New York Times, formerly the International Herald Tribune. The New York
Times Company is a publicly traded corporation. It has no parent company and has no affiliates
or subsidiaries that are publicly owned. No publicly held corporation owns 10% or more of its
stock. None of its affiliates has any publicly traded parent except The New York Times
Company.
Reuters America LLC (Reuters) is the worlds largest independent international news
agency, reaching more than a billion people every day. Its coverage includes international
politics, business, sports and entertainment; Reuters also publishes market data and intelligence
to global business and finance consumers. Reuters America LLC is an indirect wholly-owned
subsidiary of Thomson Reuters Corporation, a publicly held company. No publicly held
company owns 10% or more of the stock of Thomson Reuters Corporation.
Tribune Publishing Company, LLC is one of the countrys leading publishing
companies. Tribunes leading daily newspapers include the Chicago Tribune, Los Angeles
Times, The Baltimore Sun, Sun Sentinel (South Florida), Orlando Sentinel, Hartford Courant,
The Morning Call and Daily Press. Popular news and information websites, including
www.chicagotribune.com and www.latimes.com, complement Tribunes publishing properties
and extend the companys nationwide audience. Tribune Publishing Company, LLC is a
subsidiary of Tribune Company, which is privately owned.

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USA TODAY is the nations largest-selling daily newspaper and USATODAY.com is
one of the top newspaper sites on the Internet. USA TODAYs parent company Gannett Co.,
Inc. is the nations largest newspaper publisher with more than 80 dailies reaching more than
10 million readers each day. The companys broadcasting portfolio includes more than 40 TV
stations, reaching 30% of all television households in America. Each of Gannetts daily
newspapers and TV stations provide digital and mobile products that feature news and
advertising customized for the market served. USA TODAY is an unincorporated division of
Gannett Satellite Information Network, Inc., a wholly-owned subsidiary of Gannett Co., Inc.
Gannett Co., Inc. is publicly traded, has no parent corporation, and no publicly held company
owns 10% or more of its stock.
WP Company LLC (d/b/a The Washington Post) publishes one of the nations most
prominent daily newspapers, as well as a website, www.washingtonpost.com, that is read by an
average of more than 20 million unique visitors per month. The Washington Post is a wholly
owned subsidiary of Nash Holdings LLC. Nash Holdings LLC is privately held and does not
have any outstanding securities in the hands of the public.

These representations are made in order that judges of this Court may determine the need
for recusal.


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J ulie B. Ehrlich*

New York, NY 10036
(212) 850-6100
dschulz@lskslaw.com



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Civ. No. 05-1457 (GK)

[PROPOSED] ORDER
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Upon consideration of the Motion of Hearst Corporation, Inc., ABC, Inc., The Associated
Press, Bloomberg L.P., CBS Broadcasting Inc., The Contently Foundation, Dow J ones &
Company, Inc., First Look Media, Inc., Guardian US, The McClatchy Company, National Public
Radio, Inc., The New York Times Company, Reuters America LLC, Tribune Publishing
Company, LLC, USA TODAY, and The Washington Post, (collectively, the Press Applicants)
to Intervene and To Unseal Videotape Evidence, it is this ____ day of ________ 2014, hereby
ORDERED that the Motion to Intervene is GRANTED; it is further
ORDERED that the Motion to Unseal Videotape Evidence is GRANTED; it is further
ORDERED that the Press Applicants and the public be permitted to inspect and copy the
videotapes entered in the record in the above-captioned matter, see Dkt. 262, as well as any
videotapes produced pursuant to this Courts May 23, 2014, and J une 18, 2014 Orders, see Dkts
225, 258, which are later entered and accepted into the record.

Dated: ___________________, 2014
Washington, D.C.

Gladys Kessler
United States District J udge


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