                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


ABU WA' EL (JIHAD) DHIAB,

               Petitioner,

        v.                                        Civil Action-No. 05-1457 (GK)

BARACK H. OBAMA, et al.


               Respondents.



                                 MEMORANDUM OPINION


        Pursuant       to   Federal    Rule     of Civil       Procedure     2 4 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 Jones & 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    ("Press Applicants" or "Intervenors") seek to intervene and

to   unseal      twenty-eight     videotapes           that   have    been entered          into

the record of the above captioned matter.

        Before       filing   their      Motion        to   Intervene      and    to      Unseal

Videotape        Evidence,      Intervenors            conferred      with    counsel        for

Petitioner Abu Wa'el           (Jihad)        Dhiab    ("Petitioner" or "Dhiab") and

with     the     Government           ("the     Government''         or    "Respondents") .
Petitioner          consents       to        the   intervention            and    does    not   oppose

unsealing the videotapes. Intervenors' Mot. at 1 [Dkt. No. 263].

The Government             does    not object to               Press Applicants'           Motion to

Intervene,         but the Government opposes unsealing the videotapes.

Intervenors' Mot. at 1; Resp'ts' Opp'n at 2.

       Upon consideration of Intervenors'                                Motion to Intervene and

to Unseal Videotape Evidence,                        Respondents'              Opposition to      Press

Applicants'         Motion        to    Unseal       Videotape            Evidence,      Intervenors'

Reply,      and the entire record herein,                       and for the reasons stated

below,      Intervenors'           Motion to          Intervene           is   hereby granted and

Intervenors'           Motion           to     Unseal          is        hereby     granted,         with

modifications.

I.     BACKGROUND

       A.         Factual Background

       Wa' el      (Jihad)    Dhiab,          a citizen of Syria,                 has been held by

the    United       States        Government         in    a    detention         facility      at    the

United States Naval Base in Guantanamo Bay, Cuba since as early
              1
as    2002.        [Dkt.    No.    1].         In 2009,        the Guantanamo Review Task

Force cleared Mr.             Dhiab for release from his ongoing detention

at    Guantanamo       Bay.        [Dkt.       No.    175].         To    this    day,    he    remains

imprisoned there.             In protest             of his         indefinite      detention,        Mr.

Dhiab has been on a long-term hunger strike.                                   [Dkt. No. 175].


     Petitioner alleges that the "precise date" of his transfer
to Guantanamo Bay is "unknown to [his] counsel, but known to
Respondents." [Dkt. No. 1 at ~ 23].
                                                     -2-
               On    April          9,    2013,        the    Government               notified           Mr.     Dhiab's

counsel that,                     in response to his on-going hunger strike,                                       it had

begun to feed Mr.                         Dhiab nasogastrically against his will.                                      [Dkt.

No.        17 5] .          Mr.     Dhiab    continues         to    undergo                 enteral      feeding      when

the        Government               deems       it    necessary.         Alka         Pradhan            Decl.    at     <J[    6

[Dkt. No. 256].

               The     Government           has       explained that            when           prisoners          fail         to

follow              instructions,            resist      guards          (or    "demonstrate                the     intent

to      resist"),                 cause     a     disturbance,           or     endanger                 themselves            or

anyone else,                  they are removed from their cells and taken to the

medical facilities where enteral feeding takes place. Col.Bogdan

Decl. at              <J[   7 [Dkt. No. 288]. The military officials in charge of

the        Guantanamo               Bay     facility          sometimes         employ              a    method     called

Forced               Cell         Extraction          ("FCE")       in     order              to        accomplish         the

feeding.               The        FCE     procedures          practiced         at            the       Guantanamo         Bay

facility                are       modeled        on     those       used       by        military           corrections

facilities and the Federal Bureau of Prisons.                                                   Col.      Bogdan Decl.

at    <J[<J[    4, 5.

               In May of 2014,               the Government disclosed that it possessed

videotapes                   of     Mr.     Dhiab's          forced-feedings                   and       forcible       cell

extractions.                  [ Dkt. No. 217] . Mr.              Dhiab has left no doubt that he

wants these videotapes to be made public.                                            Intervenors' Mot. at 1

[Dkt.           No.         263];    Cortney Busch              Decl.      at       <J[<J[    5-7       [Dkt.    No.    287]

(Paralegal's · declaration                            recounting Mr.            Dhiab' s                statements:            "I

                                                              -3-
want Americans to see what is going on at the prison today,                                              so

they      will     understand           why    we        are    hunger-striking,        and      why   the

prison        should       be     closed.           If    the     American      people      stand       for

freedom,          they should watch these tapes.                        If they truly believe in

human rights, they need to see these tapes.").

         B.       Procedural Background

         On July 22,            2005,    Mr.    Dhiab filed his                Petition for a Writ

of Habeas Corpus,               asserting that his indefinite detention by the

United        States       Government          violated          the    U.S.     Constitution,          the

Alien       Tort     Statute,       28    U.S. C.          §    1350,    and    international          law.

[ Dkt.      No.    1] .   His    Petition further                alleged that the conditions

of    his     confinement         violated the                 Fifth Amendment        to    the    United

States Constitution.               [ Dkt. No. 1] .

         On    July       30,    2013,        Mr.        Dhiab    and    several      other       hunger-

striking detainees                submitted a motion to                   enjoin the Government

from continuing to enterally feeding them.                                  [ Dkt.   No.    17 5] . This

Court denied the Motion for a Preliminary Injunction for lack of

subject matter jurisdiction.                        [Dkt. No. 183].

         On February 11,            2014,       our Court of Appeals held that this

Court does          have    subject matter                 jurisdiction to           hear Guantanamo

Bay       detainees'            challenges               to      the     conditions         of      their

confinement.          See Aamer v.             Obama,          742 F.3d 1023,        1038   (D.C.      Cir.

2014) .




                                                         -4-
        Accordingly,         on April        18,     2014,       Mr.     Dhiab        again    filed       a

Motion for       a    Preliminary Injunction,                  requesting that the Court

enjoin     the       Government        from      enterally         feeding            him     and     from

forcibly       extracting       him     from      his     cell.        [Dkt.    No.     203].        After

Petitioner renewed his Motion,                     the Government disclosed that it

possessed videotapes                of Mr.       Dhiab' s      forced-feedings               and     FCEs.

[ Dkt . No. 217] .

        On May 13,          2014,    Petitioner filed an Emergency Motion for

an order compelling the Government to preserve videotapes of Mr.

Dhiab's     forced-feedings            and       forcible        cell     extractions              and    to

produce     those         videotapes        to     Petitioner's           counsel.           [Dkt.       No.

217].    On May 23,          2014,    the Court granted Petitioner's Motion in

part,    and     directed       the    Government           to    produce        to     Petitioner's

counsel "all videotapes made between April 9,                                  2013 and February

19'     2014,        that     record        both        [Mr.     Dhiab' s]        Forcible            Cell

Extractions and subsequent enteral feeding."                              [Dkt. No.           225]. The

Government        complied           with     that       Order,         and      later         provided

additional videotapes to Petitioner's counsel.                                 [Dkt No. 250].

        In a series of filings beginning June 14,                               2014,        Petitioner

placed 28 videotapes in the judicial record for this case.                                           [Dkt.

Nos.    252,     262,       267].    The    Government           produced        four        additional

videotapes           to      Petitioner          and        asserts            that         "they        are

substantially the same as the                    [other]       28 videos." Resp'ts' Opp'n

at 4 n.3.

                                                 -5-
       The videotapes have been classified at the "secret" level,

RDML Butler Decl. at                    ~       7, based on the Government's belief that

the contents of these twenty-eight videotapes "could reasonably

be    expected         to    cause              serious    damage        to    national          security       if

disclosed[,]"               Id.    at       ~    5. Thus,       in accordance with the Court's

standing         protective             order        applicable           to     all       Guantanamo          Bay

detainee habeas proceedings,                          the videotapes have been placed on

the Court's docket under seal.                            [Dkt. No. 57          ~    47]       (requiring all

documents        containing             classified              information          to    be    filed    under

seal).

       On June 20,            2014,             Intervenors filed their Motion to Unseal

Videotape          Evidence                 filed         in      this         proceeding's            record.

Intervenors'        Mot.          at 8.          Members of the news media may properly

intervene for the purpose of seeking to unseal judicial records.

See   In    re    Guantanamo                Bay Detainee           Lit.,       624     F. Supp. 2d       27,    31

(D. D.C.    2009)       ("Detainee Lit.                   I");     See also Wash.                Post Co.       v.

Robinson,        935    F.2d        282,          289-90        (D.C.    Cir.       1991).       Neither       the

Government        nor        Petitioner             oppose        Press       Applicants'          Motion       to

Intervene.        Resp'ts'              Opp'n       at     2     n.1.     Therefore,            Intervenors'

Motion shall be granted.

II.    Standard for Unsealing Judicial Records

      A.         The First Amendment Right to Judicial Records

      The    First          Amendment's              express       guarantees             of    free   speech,

freedom of the press,                       and the right to petition the government

                                                          -6-
carry with them an implicit right of public access to particular

government           information.       Richmond           Newspapers        Inc.     v.    Virginia,

448    u.s.    555, 575-76 (1980).              Our Court of Appeals has held that

"[t] he       first    amendment        guarantees          the     press     and    the     public      a

general right of access to court proceedings and court documents

unless there are compelling reasons demonstrating why it cannot

be     observed."       Washington        Post       v.     Robinson,        935    F. 2d    2 82,     2 87

    (D.C. Cir. 1991)      (emphasis added).

        As Judge Hogan explained in Detainee Lit.                              I,    624 F.Supp.2d

at 35, in order to determine whether a particular proceeding and

related        judicial       records    are     subject           to    the public's        right      of

access,       courts     apply a        two-part          test,     commonly referred to                as

the     test     of    "experience        and    logic,"            Press-Enterprise             Co.    v.

Superior Court,           478 U.S.       1,    8-9        (1986)        ("Press-Enterprise II").

The first prong of that test asks whether there is a history of

access to the proceeding.                 Press-Enterprise II,                 478 U.S.          at 8-9.

The     second        prong     considers        whether           public      access       "plays       a

significant positive role in the functioning of the particular

process in question." Id. Failure at either stage of the test is

fatal     to     a    First     Amendment        public        access        claim.        See    United

States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997) . 2


2
     In addition to the First Amendment right of access to
judicial records, the Supreme Court has recognized a common law
right "to inspect and copy judicial records." Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978); see also In re
                                                 -7-
      The    public's          right     of     access,    once     established,            is     a

qualified one.          Limits on the public's right to acc.ess judicial

records     are       appropriate        only     upon    the     demonstration         of        an

"overriding interest based on findings that closure is essential

to   preserve         higher     values.n       Press-Enterprise       Co.     v.     Superior

Court,    464     U.S.    501,     510     (1984)      ("Press-Enterprise           In) .    "The

[overriding]          interest    [must]      be articulated along with findings

specific enough that a reviewing court can determine whether the

closure order was properly entered.n Id.

      The    party        seeking        closure       must     show     a     "substantial

probabilityn of harm to an "overriding interestn which has been

identified;       even     a     "reasonable         likelihoodn    of       harm    does        not

suffice. Press Enterprise II, 478 U.S. at 14                        (California statute

providing       for    closure     of preliminary hearings               "upon      finding a

reasonable likelihood of substantial prejudicen placed "a lesser




NBC,   653 F.2d 609,   612   (D.C. Cir. 1981). Although courts
traditionally   avoid   constitutional   questions if  adequate
statutory or common law relief is available, our Court of
Appeals has made clear that courts should look first to the
Constitutional right of access where judicial records are at
issue. Washington Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C.
Cir. 1991) ("Appellant also claims that there is a common law
right of access to court records and documents. Like our sister
circuits, however, we reach the constitutional issues raised in
the appeal because of the different and heightened protections
of access that the first amendment provides over common law
rightsn) . Because the Court finds that Intervenors have a
Constitutional right of access to the videotapes at issue, it
need not reach Intervenors' common law claim.
                                               -8-
burden on the defendant than the                               'substantial probability'                 test

which .           . is called for by the First Amendment.").

       Any limit on public access that a court does impose must be

"narrowly tailored to serve that interest." Press Enterprise I,

4 64   U.S.       at     510.        Complete      closure           of    the     judicial      record     is

proper      only         in     the     absence          of    any        alternatives          that     would

provide adequate protection. Robinson, 935 F.2d at 290.

       B. Court Discretion to Seal Judicial Records

       In     a    trio        of    cases--Bismullah,                Parhat,       and Ameziane--our

Court of Appeals developed the standard for determining whether

information             on     the    docket       of     Guantanamo             Bay    detainee        habeas

cases may be             sealed        from public             disclosure.             In    order to     keep

judicial          records           under        seal,        "the        [G]overnment          first     must

demonstrate             what     kind       of    information             requires          protection     and

why,   and then must show exactly what information in the case at

hand it seeks to protect." Ameziane v.                                    Obama,       699 F.3d 488,       495

(D.C. Cir. 2012)               (emphasis in original).

       First,          in Bismullah v.             Gates,       501 F.3d 178,                187-89 vacated

554 U.S.          913    (2008),        reinstated,            Order,       No.    06-1197       (D.C.    Cir.

Aug.   22,        2008),       petitions          dismissed           for    lack       of    jurisdiction,

551 F.3d 1068                (D.C.    Cir.       2009)    the Court of Appeals considered

how and when to protect the sensitive information common to the

Guantanamo Bay detainee habeas cases and made clear                                              that "[i]t

is the court,            not the Government,                   that has discretion to seal a

                                                         -9-
judicial record,             which the public ordinarily has the right to

inspect       and    copy."       (internal           citations       omitted).       Accordingly,

the Court rejected a Government proposal that would have granted

it the authority to determine unilaterally whether unclassified

information is "protected" and therefore kept under seal. Id.

       Second, in Parhat v. Gates, 532 F.3d 834, 852-53 (D.C. Cir.

2008),    the Court of Appeals further explained that in order to

maintain       records       under      seal,         the    Government        must       provide      an

"explanation          tailored       to        the     specific       information         at      issue"

rather than "spare,               generic assertions of the need to protect

information."          The     Court       rejected          the    Government's          motion       to

protect       from         public       disclosure           "all      nonclassified              record

information that             it   has     labeled law enforcement                    sensitive,        as

well     as    the     names      and      identifying             information       of     all     U.S.

government          personnel       mentioned           in    the     record."        Id.      at    235

(internal          quotation      marks        omitted.)       The     Court     concluded          that

"[b] y resting its motion on generic claims,                                equally applicable

to all of the more                than one hundred other detainee cases now

pending       in     this    court,        the       government       effectively           'proposes

unilaterally          to    determine          whether       information        is    protected.'"

Id.    (citing Bismullah, 501 F.3d at 188).

       Third,       in Ameziane           v.    Obama,       699     F.3d   488,      494-95        (D.C.

Cir.   2010)        (citing Parhat,            532 F.3d at 853)             (internal quotation

marks omitted), the Court set out a two-part test to govern the

                                                     -10-
sealing       of   judicial          records        in detainee         cases:       the    Government

must put forth "at a minimum,                        [1] a specific, tailored rationale

for    protecting          a    general        category         of    information,          and     [2]     a

precise designation of each particular item of information that

purportedly         falls       within       the     category described.'"                   The    Court

observed       that          "the         narrower       the        category        for     which         the

government         seeks       protection,          the     more      likely    the       government's

rationale          will        be     sufficiently             tailored[,]"          although,            the

government need not provide "a .Specific and distinct rationale

addressed. to each detainee's                       situation." Arneziane,                 699 F. 3d at

495.

III. ANALYSIS

       A.      Whether the Qualified Right of Access to Judicial
               Records Extends to Classified Documents

       The Court is well aware,                      as the Government has emphasized,

that in no case involving Guantanamo Bay detainees has any court

ordered        disclosure              of         classified          information           over          the

Government's         opposition.              However -- to be clear -- that does

not    mean    that       in    a    given        factual      situation       no    court        has     the

discretion to do so if warranted.                           Quite the contrary. Our Court

of Appeals has stated that it is the judiciary's responsibility,

when    ruling          on      an        issue     as      overwhelmingly            important            as

diminution         of   our         precious       First    Amendment          rights,       to    ensure

that    classification               of     the    items       in    question,       i.e.,        the     FCE


                                                    -11-
                             3
videos,       is proper.         See McGehee v.           Casey,    718    F.2d 1137,             1148

    (D.C. Cir. 1983).

        Following the two-step test of Press-Enterprise II,                                   Judge

Hogan in Detainee Lit. I first determined that "access to habeas

proceedings has been historically available."                             Detainee Lit.             I,

624 F.Supp.2d at 35. Recognizing that "the D.C. Circuit has been

silent        on   the    issue,"    Judge   Hogan        noted    that    "other Circuits

have     opined      and    uniformly     held      that     the    public       has     a     First

Amendment right of access to civil proceedings and records," Id.

at     36,    and concluded that         "[a]    petition for             a writ of habeas

corpus is a civil proceeding[,]" Id. at 35 (citing                               Fay v. Noia,

372    u.s.    391, 423 (1963)).

        Under      Press-Enterprise II' s           second prong,          the Court           found

"that        'public access plays a          significant positive                 role       in the

functioning'         of these habeas proceedings." Detainee Lit.                             I,    62 4

F.Supp.2d at         36     (quoting Press-Enterprise              II,     478   U.S.        at    8).

"Publicly disclosing the factual returns                      [produced in the habeas

proceedings]             would      enlighten       the      citizenry           and         improve

3
     The fact the judicial records sought are videotapes, rather
than written documents, does not affect the analysis. 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"); cf. United States v. Graham, 257 F.3d
143, 153-54 (2d Cir. 2001)     (videotape relied upon by court
subject to common law 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).
                                             -12-
perceptions of the proceedings' fairness." Id. at 37                                       (citing New

York     Times      Co.      v.    United       States,     403    U.S.         713,       728     (1971)

    (Stewart,     J.,     concurring)            (observing       that     in        the    areas        of

national          defense         and     international           relations,               "the        only

effective restraint upon executive policy and power ... may lie

in     an    enlightened           citizenry")).          Moreover,        "[d]isclosing                the

factual returns to the public would also benefit both parties.

            The    government's           detention        decisions            would       gain        the

legitimacy that accompanies transparency." Detainee Lit.                                          I,    624

F.Supp.2d at 37. 4

         Respondents            deny    that      the     qualified            right       of     access

identified         by     the     Court     in    Detainee        Lit.     I     extends          to    the

videotapes at issue here.                  They contend,          first,        that the history

of     access     to    habeas         corpus     proceedings        and       records       does       not

extend to classified information.                        Second,     pointing to dicta in

Detainee Lit.           I,   624 F.Supp.2d at 37              ("any positive role would

be severely diminished if the public gains access to classified

information"),            the     Government       argues     that       when    a     document         has

been deemed classified by the Executive Branch,                                  that fact alone

should bind the court to conclude that public access would not

play a significant positive role. Resp'ts' Opp'n at 18-21.


4
     While the factual returns at issue in Detainee Lit. I were
not classified, the Government argued that they should have been
deemed "protected" and therefore not subject to public access.
624 F.Supp.2d at 38.
                                                  -13-
        By applying the test            of experience and logic directly to

classified information, the Government misreads Press Enterprise

llr     478   U.S.    at     8-9.    Courts     must    consider       the      history      and

virtues of access to particular proceedings, not the information

that may arise during those proceedings. See Press-Enterprise II

478 U.S. at 8-9          (comparing the history and virtues of open jury

trials with the necessary "secrecy of grand jury proceedings"J.

Once the right of access to a proceeding has been established,

courts may use narrowly tailored measures to protect compelling

interests,      like the          safeguarding of sensitive information.                     See

Robinson, 935 F.2d at 290 (D.C. Cir. 1991).

        In    addition       to     misconstruing        Press-Enterprise             II,    the

Government's arguments,              if accepted,       would displace the Court's

power    to    seal    its    own    record,     putting       that    authority       in    the

Government's         hands    alone.        However,     the     Court     of    Appeals       in

Busmillah,      501    F. 3d at      188,    clearly stated that             "[i] t     is   the

court, not the Government that has discretion to seal a judicial

record."

        The Fourth Circuit,           in In re Washington Post Co.,                   807 F.2d

383,     391-92       (4th    Cir.     1986),        concluded    that       although         the

Executive has the sole authority to determine what information

is properly classified for its purposes,                       only the judiciary has

the discretion to seal or unseal a                      judicial record.          While the

Court     admitted      to    being    "troubled                      by   the    risk       that

                                            . -14-
disclosure of classified information could endanger the lives of

both Americans            and     their       foreign        informants,             [it    was]       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 acceptance by the courts of the government's 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." Id.                             (emphasis added).

       B.        Application of Press Enterprise II and Parbat to the
                 Twenty-Eight Video Tapes

       The   Government            identifies         five        means         by which            release    of

the videotapes would give rise to a                               substantial probability of

harm   to    a    compelling           interest:           ( 1)    the    videos           could      aid     the

development of countermeasures to                            FCEs;       ( 2)    depictions            of camp

infrastructure in the videos could allow detainees or others to

disrupt the camp;               ( 3)   detainees might respond to release of the

videos      by    deliberately              trying     to       behave      in       such       a    way    that

necessitates        greater            use    of     the        FCEs;     (4)        the    videos         could

"inflame         Muslim         sensitivities               overseas"             or       be        used      as

propaganda;         (5)    release           of     the     videotapes            could      subject          Mr.


                                                    -15-
Dhiab to       "public       curiosity"             and "could affect             the    practice       of

other        states    in      this       regard,          which        would     in     turn     dilute

protections afforded U.S.                     service personnel in ongoing overseas

contingency operations and future                          conflicts." Resp'ts'                Opp'n at

27.

               1.      The Government's Burden

        In    order     to     seal       the        judicial           record    and     defeat     the

public's       qualified       right          of    access,        the    Government          carries    a

heavy burden.          It must put forth "at a minimum,                            [1]    a    specific,

tailored           rationale       for        protecting           a      general        category       of

information,          and    [2]    a    precise        designation          of   each        particular

i tern of information that purportedly falls                                within the          category

described."          Ameziane,          699    F. 3d    at    494-95        (citing      Parhat,     532

F. 3d at 853)         (internal quotation marks omitted).                           The reasons it

gives        for     protecting           the       information            must     demonstrate          a

"substantial probability of                        harm"     to    an    "overriding interest."

Press-Enterprise II,               478 U.S. at 14.

        As     already       noted,           the      fact       that     the     Government        has

unilaterally deemed information classified is not sufficient to

defeat the public's right.                     See Bismullah,             501 F.3d at 188.          Even

when    the        Government's          reasons        for       classification         point     to    a

substantial          probability         of     harm,      the     Court     must      assure     itself

that the       justifications given are "rational and plausible." See

McGehee,      718 F.2d at 1149. The Government must provide "reasoned

                                                    -16-
and    detailed        explanations"          and     courts         "must                    satisfy

themselves                   that the       [Government]            in fact had good reason

to classify." Id. at 1148-49.

       In short,       it is our responsibility,                     as judges,         as part of

our    obligation           under    the     Constitution,               to    ensure       that     any

efforts to limit our First Amendment protections are scrutinized

with    the     greatest       of     care.     That      responsibility               can     not    be

ignored or abdicated.

       Therefore,           when     the     sealed      facts           are    already       public,

maintaining       documents          under     seal       is        only       appropriate         when,

despite what          the    public already           knows,         the      documents'       release

would still give rise to a substantial probability of harm.                                          See

Robinson,     935 F.2d at 291-92              (unsealing a plea agreement because

Government's          concerns       that     "release         of    a     plea    agreement         may

threaten an ongoing criminal                  investigation~             or the safety of the

defendant and his family" were unfounded when "the fact that the

plea    agreement       was        entered    into       in    exchange          for    McWilliams'

cooperation was already within the public knowledge."); see also

In re The Herald Co.,                73.4    F.2d 93,         101    (2d Cir.1984)            ("Though

the basis       for    apprehending harm to                   the defendant            is    apparent,

the    record    raises        a    question        as   to     whether          the    information

sought to be kept confidential has already been given sufficient

public exposure to preclude a closure order on this account.").



                                               -17-
       Our Court of Appeals has cautioned that while "it is our

customary policy to accord deference to the President in matters

of    foreign    affairs                    [the]    detainee       cases    are    unique."

Ameziane,       699 F.3d at 494         (emphasis added)             (internal citations

and quotation marks omitted) .                "Because of the independent role

carved out for the judiciary, and our concomitant obligation to

balance the needs of the government against the rights of the

detainee,       and   also    to    preserve         to    the     extent    feasible      the

traditional right of public access to judicial records grounded

in the First Amendment, we exercise greater caution in deciding

to defer." Id. The Court must give deference when it is due, but

"deference is not equivalent to acquiescence." Campbell v.                                U.S.

Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998).

       This     Court     viewed      the    initial        28     videos    made    by    the

Government,      and has      read,     re-read,          and carefully analyzed the

Declaration of          Rear Admiral        Richard W.           Butler,    which   contains

the   Government's        justification        for     opposing       disclosure     of    the

forced-feeding and FCE videos in this case, as well as Exhibit 1

attached to his Declaration.

       In     reviewing      Rear     Admiral        Butler's        justifications        for

closure,      the Court finds -- as it will now detail -- that most

of them are       unacceptably vague,               speculative,       lack specificity,

or are just plain implausible.



                                             -18-
             2.         The Government's Concerns

                        a.        Development of Countermeasures

      At     several             points,       the     Declaration            relied        on    by      the

Government refers to the possibility that "detainees and other

enemies"     may        develop         countermeasures            to    the        FCE   and      forced-

feeding procedures. RDML Butler Decl. at                            ~    12; accord.             Id. at    ~~


11-14.      Nowhere              does        the     Government          specify          what         these

"countermeasures" may be or what form they might take.

      Paragraph             13     discusses          enteral       feeding           videos,          which

depict,     among other things,                     "the layout of the enteral feeding

space,     location of equipment that                       [according to the Government]

could be used as a weapon,                         and the number of personnel involved

[in the enteral              feeding process] . "            The declaration states that

the "release of any footage of this type provides the enemy with

opportunity            to     search          for     weaknesses             and     vulnerabilities

exposing         FCE        and     medical          personnel          to     possible           attack."

(emphasis        added).           Paragraph          13    also    states           that        "[p]ublic

release     of    FCE       videos       could                provide detainees                  with the

ability     to     devise          new       ways     to    thwart           the    enteral        feeding

process [.]"       However,         the       detainees      subjected to             forced-feeding

are already intimately familiar with the enteral feeding process

and   facilities.            Moreover,         the    Government         has        already       released

substantial            information            relating        to        the        feeding        process,

including        the    layout          of   and     equipment      in        the    enteral       feeding

                                                     -19-
         5
space.       It strains credulity to conclude that release of these

videos       has    a    substantial           probability of             causing      the    harm the

Government predicts.

       Paragraphs 11, 12, 14, and 17 of the Declaration all amount

to a claim that release of the "videos" "poses risk to military

personnel          as     detainees            and     other      enemies      armed         with     such

information             can     develop        countermeasures            to     FCE     tactics       and

procedures [, ] " Id.            at '][ 12.      Paragraph 17,            in particular,            claims

that     upon       release          of    the        "videos"       detainees         could        obtain

information         from        relatives        that        would    help     them      develop       FCE

"countermeasures." This                    statement         is   particularly difficult                to

understand.         The        fact       of    the    matter        is   that     all       detainees'

communications                with    outsiders         are       closely      monitored        by     the

personnel at Guantanamo Bay. 6


5
       See, e.g., DVIDS, Joint Medical Group (Apr. 10, 2013),
available at http://www.dvidshub.net/image/920530/joint-medical-
group#.U9Qkv4BdWvO       (picture     of      feeding     chair);
http://www.dvidshub.net/image/920537/joint-medical-
group#.U9QlL4BdWvO (picture of enteral feeding preparation kit);
http://www.dvidshub.net/image/920535/joint-medical-
group#.U9QldiBdWv0                                        (same) ;
http://www.dvidshub.net/image/920549/joint-medical-
group#.U9Pq3oBdWvO (gallery of sixteen images showing 1 among
others, "medical stay area inside the Joint Medical Group"); see
also Joint Task Force Guantanamo Bay, Cuba, Joint Medical Group,
MEDICAL MANAGEMENT OF DETAINEES ON HUNGER STRIKE (March 5, 2013)
 [Dkt. 203-7] .
6
      P. Finn & J. Tate, Guantanamo Bay detainees' family members
may be allowed to visit, Wash. Post (May 11, 2011), available at
http://www.washingtonpost.com/national/Guantanamo-bay-
detaineesfamily-members-may-be-allowed-to-
visit/2011/05/11/AFGAMtsG_story.html (reporting that the "[a] 11·
                                                      -20-
       More generally, it is not sufficient to say that release of

the    videotapes       "poses           risk    to    military           personnel"       because

enemies "can develop countermeasures." RDML Butler Decl.                                     at     <JI


12; see also Id. at         <JI    14 ("Divulging videos of [FCEs and enteral

feedings]       could    reasonably              be    expected       to     result        in     the

development of countertactics") .                     The Government's burden is to

show     a    "substantial             probability"         of     harm     to     a     compelling

interest. Press Enterprise II,                   478 U.S. at 14            (statute providing

for closure of preliminary hearings "upon finding a reasonable

likelihood of substantial prejudice" placed "a lesser burden on

the defendant than the substantial probability test which .

is called for by the First Amendment.").

       Furthermore,      the           Government's         claim    that        release    of    the

videos       would   lead         to     unspecified         FCE     "countermeasures"             is

implausible. The detainees are already familiar with the tactics

used to extract them from their cells and enterally feed them,

and    detailed      descriptions               of    the     procedures           are     publicly

available on the internet. 7



conversations   [between  detainees   and  their   families] are
monitored by the military").
7
      See Joint Task Force Guant2mamo Bay, Cuba, Joint Medical
Group, MEDICAL MANAGEMENT OF DETAINEES ON HUNGER STRIKE (March
5, 2013) [Dkt. 203-7]; Joint Task Force - Guant2mamo, CAMP DELTA
STANDARD OPERATING PROCEDURES §§ 24.1-24.3       (Mar. 1, 2004),
available                                                     at
http://www1.umn.edu/humanrts/OathBetrayed/sop_2004.pdf
 (procedures governing Immediate Reaction Force ("IRF") teams at
Guantanamo).
                                                -21-
       The       Government    notes     that       some        elements     of   the    FCE

procedure are performed outside the detainees' view. RDML Butler

Decl. at     ~    12. But those procedures, described in minute detail,
                                                8
are already in the public sphere.                   Bureau of Prison regulations,

on which the           Guantanamo    Bay regulations            are modeled,      Resp' ts'
                                                           9
Opp. 3; Bogdan Decl. at~ 4, are public,                         as are analogous state
                  10
regulations.           One fact the government specifically worries about

-- that the videos would show the number of guards involved in

the FCE procedure,          Resp'ts'    Opp'n at 5; RDML Butler Decl.                   at   ~


10 -- is easy to locate on-line. 11

       Given what is already available to the public and known to

the detainees,         it simply is not plausible to argue that release

of   the    videos will       give   rise    to an additional              probability of

harm   by    encouraging       the     development         of    FCE   countermeasures.

8
       Id.
9
       See Federal Bureau of Prisons Program Statement P55 66. 0 6,
Subject: Use of Force and Application of Restraints; 28 C.F.R. §
552.21 et seq.
10
       See, e.g., Cal. Dep't of Corr. & Rehab., Operations Manual
§                  51020.12.3,             available                at
http://www.cdcr.ca.gov/regulations/Adult_Operations/DOM_TOC.html;
Fla.         Admin.      Code    §33-602.210,       available       at
http://florida.eregulations.us/rule/33-602.210; Minn.       Dep't of
Corr. , Policies, Directives, and Instructions Manual, available
at
http://www.doc.state.mn.us/DocPolicy2/html/DPW_Display_TOC.asp?O
pt=301.081.htm.
II
       Joint   Task   Force     Guantanamo,   CAMP   DELTA STANDARD
OPERATING PROCEDURES §§ 24.1-24.3 (Mar. 1, 2004), available at
http://www1.umn.edu/humanrts/OathBetrayed/sop_2004.pdf         ("There
will be primary and alternate [Immediate Reaction             ("IRF")]
team [ s] designated for each camp. IRF teams consist of five
guards . ") .
                                            -22-
Robinson,         935 F. 2d at 2 92            (unsealing plea agreement because it

was not "evident how such disclosure could pose any extra threat

to    the    safety        of        [the    defendant]      and       his    family"       when    the

defendant's cooperation with the government was public knowledge

"already validated by an official source")                             (emphasis added).

                      b.             Disclosure of the           Physical       Layout       of    Camp
                                     Infrastructure

        A number of paragraphs in Rear Admiral Butler's Declaration

argue    that      release of the              "videos" would allow adversaries to

reconstruct         considerable             portions       of   the    camp    infrastructure,

thereby threatening the security of the camps.                                  See,       e.g. , RDML

Butler      Decl.    at     ']['][    10,    15.    Intervenors        note    that    significant

information about the infrastructure of the Guantanamo camp is

already in the public domain.                         Unlike the information about the

FCEs,    which is similar to but distinct from the information in

the     videos        themselves,                  Intervenors        contend        that      public

information         about       the     infrastructure           of    the    camp    is    the    same

information the Government here attempts to seal. Moreover, they

point       out     that        the         Government      itself       has     released          this

information. 12


12
      C. Rosenberg, A prison camps primer, Miami Herald (June 15,
2014),                         available                       at
http://www.miamiherald.com/2014/06/15/2558413/web-extra-a-
prison-camps-primer. html   (describing   layout  and  details of
various camps within Guantanamo); R. Johnson, Inside Gitmo: An
Exclusive Tour of the Most Notorious Prison on Earth, Business
Insider        (Apr.      25,        2013),      available     at
                                                     -23-
       For     example,          the      Government          has      released       pictures     of

cellblocks          and    medical         facilities,           surveillance          rooms,     and

actual       pictures       of         several    camps,        which     include        images    of
                                  13
medical      facilities.                The     Government          claims     that    release     of

images of medical facilities could allow detainees to find items

that    might       be    used     as     weapons       and     that    public        knowledge    of

infrastructural information could facilitate disruption of good

order and discipline within the camps.                              In the face of what the

Government      has       already        released,        its       concerns    are     simply not

~rational     or plausible." See McGehee, 718 F.2d at 1148.

       Ameziane           made         clear     that         courts     may      consider        the

Government's         own     prior        release        of    information        when     choosing

whether to seal a                record.       Ameziane,        699 F.3d at       498     (Although

~it    was error to rely on third parties'                            purported knowledge of

his    cleared status [,]"               ~it    would have been proper to consider

whether       the        government            already        had     publicly        acknowledged



http://www.businessinsider.com/gitmo-guantanamo-bay-photo-tour-
2013-4?op=1    (providing    photographs    of   various    parts   of
Guantanamo, including a medical treatment room and occupied
cellblocks) ;  Explorer:    Inside   Guantanamo,   NAT' L GEOGRAPHIC
CHANNEL (Apr. 5, 2009) (~Inside Guantanamo I"), at 3:38-4:44,
11:38-14:27, 18:30-19:30, 25:34-28:00, 36:09-37:17 (cellblock),
2:13-3:38, 14:39-15:06, 18:00-18:29 (exterior and interior of
holding cells), 37:19-34 (force-feeding chair), available at
https://www.youtube.com/watch?v=B4J6_tCy8To;      see    also   Inside
Guantanamo, 60 MINUTES (Nov. 3, 2013) (~Inside Guantanamo II"),
at 2:46-3:11 (cellblock), 9:53-10:22 (exterior and interior of
holding cells),     10:23-30   (surveillance room),     available at
http://www.cbsnews.com/news/inside-Guantanamo/.
13     Id.
                                                  -24-
Ameziane's         clearance            for         transfer.").               Accordingly,         the

Government        cannot    meet        its        burden     by        simply    asserting        that

information regarding the infrastructure of the camp is critical

to national security when it has already released the very same

information to        the public.             Ameziane,           699    F. 3d at       4 95   requires

the     Government    to    provide           "a    specific,       tailored rationale              for

protecting a general category of information" and identify "each

particular item of information that purportedly falls within the

category." It has failed to do so.

                     c.     Use of the Videos as Propaganda

        Paragraphs 18,          21,    22,    23,    and 24 all warn that the publi~

release of FCE and enteral feeding "videos," not necessarily Mr.

Dhiab' s   videos,        would prove useful as propaganda for Al Qaeda

and its affiliates              and could increase anti -American sentiment,

thereby placing the              lives of United States                       service members        at

risk.

        As we have seen in recent years,                          terrorists of all stripes

and ideologies have long been attempting to create anti-American

sentiment     abroad       by    using        publications          as        recruiting material

for new members.

        However, courts have long rejected arguments to abridge the

First    Amendment        that        would     give       rise    to     a    "heckler's        veto."

Brown v.     Louisiana,          383     U.S.       131,    133     n.1       (1966).     The    rights

afforded     by    the     First        Amendment           cannot       be     defeated        "simply

                                                   -25-
because       [the       rights            exercised]          might     offend   a     hostile    mob."

Forsyth Cnty.,            Ga. v. Nationalist Movement,                        505 U.S. 123, 134-35

 (1992).      As   was     aptly stated in ACLU v.                          Department of Defense,

389 F.Supp.2d 547,                       576    (S.D.N.Y.       2005),      "[t]errorists                do

not need pretexts for their barbarism." 14 Accordingly,                                         "fear of

blackmail is         not a               legally sufficient argument to prevent                        [the

court]       from performing a statutory command [,]" Id.                                at 57 5, much

less, complying with a Constitutional mandate.

                         d.              Detainee       Behavior       that    Would    Require        More
                                         FCEs

        The Government also contends that if any videotapes of FCEs

were    to    be    released,                  other    prisoners      would be more           likely    to

engage        in      disruptive                      behavior,        endangering           themselves,

Guantimamo         Bay     staff           and,        eventually,       national      security.       RDML

Butler Decl.         at       <]I    16;       Resp' ts'      Opp' n at 27.     This    justification

for     denying      the            public's          First    Amendment       right    of    access     to

judicial       records              fails        to    show     a   substantial        probability       of

harm.

        Paragraph 18                of RDML Butler's                Declaration claims          that    "if

video    recordings                 of    forced       cell     extractions" were            released    to

the public,         detainees                  would become         aware    of this     and react by

14
     Congress subsequently passed legislation that temporarily
exempted the photos at issue in ACLU from disclosure under the
Freedom of Information Act. See Protected National Security
Documents Act of 2009, 123 Stat. 2184, Pub. L. 111-83, Title V,
§ 565 (Oct. 28, 2009). Pursuant to the language of the statute,
that temporary exemption later expired.
                                                         -26-
behaving        in    ways        "likely       [to]    result       in    more     [FCEs] ."    This

argument fails to show a substantial probability of harm and is

entirely too speculative to defeat the public's right of access.

Intervenors' Motion does not ask that all videotapes of all FCEs

performed at Guantanamo Bay be released to the public. They ask

only to        unseal       those       tapes    that    compose      the particular        record

for this proceeding. Nothing in this Court's decision would give

Guantanamo           Bay        detainees       the    unilateral          right    to   publicize

videos of their own FCEs.

                           e.      Public     Curiosity                   and       International
                                   Reputation

       What the Government means when it worries that "any portion

of the     videotapes             containing an          image   of the         Petitioner could

expose    him        to     public      curiosity"       is   not     immediately        apparent.

Opp'n at 28. Mr.                Dhiab has been clear that he wishes release of

the videotapes.                 It is hard to believe that Mr.                     Dhiab -- whose

particular       videos           are     the    only     ones   at        issue         would     be

offended or distressed by knowing that the public was                                      able to

view     his     treatment           at     Guantanamo        Bay.        Given    the   extensive

publicity about his situation,                         and the fact that on any number

of occasions his lawyers have talked to members of the press to

describe his plight,                 the Government's concern that he would be

harmed in any way by release of the videos is not plausible.




                                                  -27-
       Rear Admiral Butler claims in Paragraph 20 that release of

"videos,        of     detainees          subject      to     forced       cell    extraction         or

enteral feeding would raise serious questions by United States

allies and partners and others in the international community as

to whether the United States is acting in accordance" with what

he    states      is      our     country's         "longstanding           policy       to    protect

detainees        from      public         curiosity,         consistent       with       the     Geneva

Conventions."

       The Government's claim,                   if accepted,          would turn the Third

Geneva Convention on its head. Rather than a source of rights to

humane treatment, Article 13 would become a means to shield from

public     view      treatment            that   Mr.    Dhiab        (and    undoubtedly          other

detainees)       believe to be inhumane. Am. Civil Liberties Union v.

Dep't of Def.,            543     F.3d 59,        91    (2d Cir.          2008)    cert.       granted,

judgment        vacated         on    other       grounds,          558     u.s.        1042     (2009)

("Release of the photographs [showing mistreatment of Abu Ghraib

prisoners]        is      likely      to     further        the     purposes       of    the     Geneva

Conventions          by    deterring         future         abuse    of     prisoners.          To    the

extent the public may be 'curious' about the Army photos,                                         it is

not   in    a     way      that      the     text      of    the     Conventions          prohibits;

curiosity about enemy prisoners being subjected to mistreatment

through     the        streets       is     different        in     kind    from        the    type    of

concern    the       plaintiffs           seek to      inspire.")           (internal         citations

and quotation marks omitted).

                                                 -28-
             6.        Personally Identifying Information about Members
                       of the FCE Team and the Possibility of Covert
                       Communication

      The    Government          contends,       Resp'ts'    Opp'n at              9-10,   29,        and

Intervenors        acknowledge,              Intervenors'        Reply        at     20-21,      that

protection        of     the     identities       of    Guantanamo        Bay        staff       is     a

legitimate        goal.        Such    protection,       however,        does        not    require

complete sealing of the videotapes.                       Adequate protection can be

provided     by    appropriate           audio    and    visual     edits,          for    example,

screening        names     and        voices,    blurring        faces
                                                                    \
                                                                              and     identifying

portions     of    uniforms,           and     blacking-out       written           materials          on

walls.     The    Government's          concerns       regarding        the    possibility of

covert     communications through the                   released videos             can likewise

be so addressed. Complete closure is only appropriate when there

are no reasonable alternatives.                   Robinson,       935 F.2d at 290. That

is not the case here.

IV.   CONCLUSION

      For the foregoing reasons,                  Intervenors' Motion to Intervene

and   to    Unseal        Videotape           Evidence      is     hereby          granted        with

specified conditions.




October 3, 2014                                        Glad~~~
                                                       United States District Judge


Copies to: attorneys on record via ECF



                                                -29-
