On March 31, 2017, the U.S. Court of Appeals for the District of Columbia issued a per curiam judgment which reversed the district court ruling requiring videos of the force feeding of Jihad Dhiab to be made public with redactions, and dismissed as moot the cross-appeal regarding the extent of the redactions.
This case returned to the U.S. Court of Appeals for the D.C. Circuit on appeal. The district court ruled that videos depicting the force-feeding of a Guantánamo prisoner should be made public with redactions. On April 6, 2016, the Brennan Center for Justice and the Electronic Frontier Foundation filed an updated version of the amicus brief from the 2015 case.
On April 3, 2015, the Brennan Center and the Electronic Frontier Foundation (EFF) filed a brief of amici curiae urging the D.C. Circuit to affirm the district court’s decision to make public videos depicting the force-feeding of a Guantánamo prisoner. The brief argues that the prevalence of overclassification demands close judicial scrutiny of classification decisions and that information should not be classified because it could be used as anti-U.S. propaganda.
On May 29, 2015, the U.S. Court of Appeals for the D.C. Circuit filed a per curiam order in Jihad Dhiab, et al v. Barack Obama, et al. finding the appeal to be premature and ordering the government to complete the redactions ordered by the district court.
Abu Wa'el (Jihad) Dhiab was a prisoner in the Guantánamo Bay Detention Center until Dec 8, 2014. He was repeatedly subject to forced cell-extractions and force-feeding through a nasogastric tube. Dhiab entered a habeas corpus action in district court and asked the court to stop these practices. The government submitted 32 classified videos of the extractions and feedings as evidence under seal. On June 20, 2014, a group of media companies moved to intervene and to have the video evidence unsealed. The government opposed to the motion to unseal, arguing that the court should defer to the government’s decision to classify the videos.
Despite the government’s opposition, on Oct 3, 2014, Judge Gladys Kessler granted the motion to unseal in substantial part, ruling that the government had failed to show a sufficient likelihood of national security harm to outweigh the public’s First Amendment right of access to the courts. Judge Kessler ordered the government to redact individual identifiers in the video so it could be entered in the public docket. The government filed an appeal to the D.C. Circuit, and the Brennan Center and EFF filed an amicus brief at this stage (see below for a description of the brief).
On May 29, 2015, the D.C. Circuit filed a per curiam order. The judges found that the district court’s decision was not sufficiently final for purposes of appeal, inasmuch as the parties had not yet implemented the court’s order to attempt agreement on redactions prior to unsealing. Once this process has taken place, the parties will still have the opportunity to litigate any disagreements about specific redactions, including on appeal if necessary. The judges expressed confidence that the district court would be willing to stay its unsealing order if the government appealed on the question of specific redactions.
The brief filed by the Brennan Center and EFF makes two main points. As detailed in the Brennan Center’s 2011 report Reducing Overclassification Through Accountability, there is a widely-acknowledged epidemic of overclassification in government agencies. Every government commission to review the classification system has found that far more material is classified than is justified by security concerns. Estimates of the amount of material improperly classified range from 50-90%. Agency officials have strong incentives to classify material by rote, and little reason not to. Given this context, the district court was right to scrutinize the classification decision, and the government’s argument that the court should simply have deferred to executive branch expertise is flawed.
Second, accepting the government’s argument that government activities may be concealed if our enemies could use them to foster anti-U.S. sentiment would undermine the executive order governing classification, known as EO 13526. The order prohibits classifying information to conceal misconduct or prevent embarrassment. Endorsing the classification of any information that could serve as “propaganda” would effectively eliminate this provision; any information relating to U.S. government misconduct can be used as anti-American propaganda. Even without misconduct, controversial policy decisions could generate anti-American sentiment overseas and therefore be classified by the same logic. The propaganda theory could thus become a loophole that swallows the principled limits on classification contained in EO 13526.
American intelligence agencies have generate huge amounts of classified information since 9/11 and also have engaged in a range of activities, from torture to bulk surveillance, that open them to criticism internationally and domestically. The Brennan Center and EFF urge the D.C. Circuit Court to follow the district court in rejecting this new and unlimited justification for classification.