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Jihad Dhiab, et al v. Barack Obama, et al (Amicus Brief)

The Brennan Center filed an amicus brief arguing that the U.S. government should not be permitted to classify information simply because it could be used to stir anti-American sentiment abroad or embarrass the U.S.

Published: April 18, 2016

Update

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.

2016 Brief

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.

Read the new brief here.

Back­ground

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.

The Case

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

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.

Read the amicus brief here [PDF]


Jihad Dhiab, et al v. Barack Obama, et al (Amicus Brief)