Jihad Dhiab v. Donald J. Trump
852 F.3d 1087
D.C. Cir.2017Background
- Abu Wa’el (Jihad) Dhiab, a Guantanamo detainee, filed habeas claims challenging force‑feeding; his cleared counsel received and filed video recordings (classified SECRET) showing cell extraction and force‑feeding.
- Sixteen press organizations intervened and moved to unseal the recordings after counsel filed some under seal; the government opposed release, submitting classified declarations asserting national‑security harms.
- The district court ordered the recordings unsealed (with redactions to identify government personnel); the government appealed and the intervenors cross‑appealed some redaction decisions.
- The D.C. Circuit concluded it lacked jurisdiction on an earlier appeal but later reviewed the merits after remand; by then Dhiab had been transferred out of Guantanamo, rendering his petition moot.
- The panel majority (Randolph) held that the First Amendment does not require disclosure of properly classified national‑security information filed in civil habeas proceedings and, alternatively, that the government made the requisite showing of substantial probability of harm.
- Because the court reversed the unsealing, the intervenors’ cross‑appeal about redactions was dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the First Amendment requires public access to properly classified national‑security recordings filed under seal in a habeas case | Intervenors: filing in court makes recordings judicial records; Press‑Enterprise II creates a qualified public right of access | Government: President has authority to classify and control national‑security information; classified status and declarations showing harm defeat any access right | Court: No First Amendment right to access properly classified national‑security information in this context; Press‑Enterprise II not controlling here |
| If a qualified right exists, whether the government showed a "substantial probability" that disclosure would harm national security | Intervenors: public interest in access outweighs speculative harms; redactions suffice | Government: detailed declarations showing risks (training/propaganda, detainee resistance, incitement) justify secrecy | Court: Government met its burden; district court erred to find no substantial probability of harm; records remain sealed |
| Applicability of common‑law right of access to classified materials submitted in civil litigation | Intervenors: common‑law access supplements First Amendment claim | Government: common‑law access is overcome by national‑security interests and established privileges | Court: Common‑law claim fails; national‑security privilege controls |
| Whether remand‑stage disputes over extent of redactions should be resolved | Intervenors: some redactions (muting audio) were excessive; sought transcripts/subtitles | Government: redactions necessary to protect identities and national security | Court: Because recordings remain sealed, redaction disputes are moot and cross‑appeal dismissed |
Key Cases Cited
- Dep’t of Navy v. Egan, 484 U.S. 518 (authority of Executive to classify and control access to national security information)
- Press‑Enterprise Co. v. Superior Court, 478 U.S. 1 (qualified First Amendment right of access to certain judicial proceedings)
- United States v. Reynolds, 345 U.S. 1 (state‑secrets/military privilege in civil litigation)
- Totten v. United States, 92 U.S. 105 (recognition of state‑secrets considerations in civil suits)
- Boumediene v. Bush, 553 U.S. 723 (Guantanamo habeas rights and caution about dissemination of classified information)
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (history and importance of public access to criminal trials)
- Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (common‑law access to judicial records is limited)
- Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir.: sealing plea agreement material to prevent violence/retaliation)