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Dhiab v. Obama

United States District Court, D. Columbia.

October 2, 2014

ABU WA'EL (JIHAD) DHIAB, Petitioner,
v.
BARACK OBAMA, et al., Defendants

For JIHAD DHIAB, Detainee, Guantanamo Bay Naval Station, Petitioner: Alka Pradhan, Elizabeth L. Marvin, Eric Leslie Lewis, LEAD ATTORNEYS, LEWIS BAACH PLLC, Washington, DC; Clive A. Staffordsmith, REPRIEVE, London UK; Cori Crider, LEAD ATTORNEY, REPRIEVE, London, UK; Ahmed Ghappour, REPRIEVE, London, UK UK; Jon B. Eisenberg, Oakland, CA; Lisa Jaskol, Los Angeles, CA; Shayana Devendra Kadidal, CENTER FOR CONSITITUTIONAL RIGHTS, New York, NY; Tara L. Murray, REPRIEVE, London United Kingdom.

For SHAKER AAMER, as Next Friend of Jihad Dhaib, Petitioner: Shayana Devendra Kadidal, CENTER FOR CONSITITUTIONAL RIGHTS, New York, NY.

For GEORGE WALKER BUSH, President of the United States, Respondent: Scott Michael Marconda, LEAD ATTORNEY, Alexander Kenneth Haas, Andrew I. Warden, August Edward Flentje, David Hugh White, James J. Schwartz, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Terry Marcus Henry, LEAD ATTORNEY, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Julia A. Berman, Patrick D. Davis, Timothy Burke Walthall, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Kathryn Celia Davis, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC.

For DONALD RUMSFELD, Secretary, United States Department of Defense, JAY HOOD, Army Brigadier General, Commander, Joint Task Force-GTMO, BRICE GYURISKO, Army Colonel, Commander, Joint Detention, Operations Group, JTF-GTMO, Respondents: Scott Michael Marconda, LEAD ATTORNEY, Alexander Kenneth Haas, Andrew I. Warden, August Edward Flentje, David Hugh White, James J. Schwartz, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Terry Marcus Henry, LEAD ATTORNEY, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Julia A. Berman, Patrick D. Davis, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Kathryn Celia Davis, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC.

For ASSOCIATED PRESS, USA TODAY, HEARST CORPORATION, ABC, INC., ASSOCIATED PRESS, BLOOMBERG L.P., CBS BROADCASTING, INC., THE CONTENTLY FOUNDATION, DOW JONES & COMPANY, INC., FIRST LOOK MEDIA, INC., GUARDIAN US, MCCLATCHY COMPANY, NATIONAL PUBLIC RADIO INC., NEW YORK TIMES COMPANY, REUTERS AMERICA LLC, TRIBUNE PUBLISHING COMPANY, LLC, WASHINGTON POST, Movants: David A. Schulz, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, NY; Julie B. Ehrlich, PRO HAC VICE, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, NY.

Page 466

MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

Petitioner Abu Wa'el (Jihad) Dhiab has been detained at Guantanamo Bay, Cuba, since as early as 2002.[1] In 2009, he was declared eligible for release. As of October 1, 2014, he still remains a detainee at Guantanamo Bay.

On April 18, 2014, Mr. Dhiab (represented by counsel) filed a Motion for Preliminary Injunction. While some of his requests for judicial relief have changed over time, his major requests are for a preliminary injunction barring the Government from subjecting him to forcible cell extractions

Page 467

(" FCE" ) and from placing him in a Five-Point Restraint Chair for the purpose of transporting him to or from forced-feeding, so long as he indicates that he is willing to submit to such feeding compliantly. After much preliminary litigation activity, on August 12, 2014, the Court set October 6 & 7, 2014, as a firm date for the Preliminary Injunction Hearing. Thus, the Parties have known for a period of two months the date upon which the hearing would go forth. On September 26, 2014, less than two weeks prior to the start of the long-scheduled Hearing, the Government filed a Motion to Seal Preliminary Injunction Hearing [Dkt. No. 333], requesting that the Court take the extraordinary step of completely closing the entire Preliminary Injunction Hearing to the public. This request, which appears to have been deliberately made on short notice is -- in this Court's view -- deeply troubling.

One of the strongest pillars of our system of justice in the United States is the presumption that all judicial proceedings are open to the public whom the judiciary serves. As the Court of Appeals for the Sixth Circuit has observed, " [t]he First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately[.]" Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).

The Government argues that closing the Preliminary Injunction Hearing to the public (with the exception of brief unclassified opening statements), is necessary because the " record in this case includes inextricably intertwined classified, protected, and unclassified information." The Government contends that closing the Hearing will prevent any unauthorized disclosure of classified or protected information, thereby purportedly ensuring that the hearing proceeds in an ...


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