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Dhiab v. Obama

United States District Court, D. Columbia.

October 3, 2014

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

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Jihad Dhiab, Detainee, Guantanamo Bay Naval Station, Petitioner: Alka Pradhan, Elizabeth L. Marvin, Eric Leslie Lewis, LEAD ATTORNEYS, LEWIS BAACH PLLC, Washington, DC USA; Clive A. Staffordsmith, Cori Crider, LEAD ATTORNEY, London, Uk; Ahmed Ghappour, London, Uk Uk; Jon B. Eisenberg, Oakland, CA USA; Lisa Jaskol, Los Angeles, CA USA; Shayana Devendra Kadidal, New York, N.Y. USA; Tara L. Murray, London, United Kingdom.

For Shaker Aamer, as Next Friend of Jihad Dhaib, Petitioner: Shayana Devendra Kadidal, New York, N.Y. USA.

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

For Donald Rumsfeld, Secretary, United States Department of Defense, Jay Hood, Army Brigadier General, Commander, Joint Task Force-GTMO, Respondents: Scott Michael Marconda, LEAD ATTORNEY, Andrew I. Warden, August Edward Flentje, David Hugh White, James J. Schwartz, Kathryn Celia Davis, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Terry Marcus Henry, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC USA; Alexander Kenneth Haas, U.S. DEPARTMENT OF JUSTICE, Washington, Dc; Julia A. Berman, Patrick D. Davis, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC USA.

For Brice Gyurisko, Army Colonel, Commander, Joint Detention, Operations Group, JTF-GTMO, Respondent: Scott Michael Marconda, LEAD ATTORNEY, Andrew I. Warden, August Edward Flentje, David Hugh White, James J. Schwartz, Kathryn Celia Davis, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Terry Marcus Henry, LEAD ATTORNEY, Julia A. Berman, Patrick D. Davis, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC USA; Alexander Kenneth Haas, U.S. DEPARTMENT OF JUSTICE, 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, USA Today, Washington Post, Movants: David A. Schulz, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, N.Y. USA; Julie B. Ehrlich, PRO HAC VICE, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, N.Y. USA.

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MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

Pursuant to Federal Rule of Civil Procedure 24 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 Guantá namo Bay, Cuba since as early as 2002.[1] [Dkt. No. 1]. In 2009, the Guantá namo Review Task Force cleared Mr. Dhiab for release from his ongoing detention at Guantá namo 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].

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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. 175]. Mr. Dhiab continues to undergo enteral feeding when the Government deems it necessary. Alka Pradhan Decl. at ¶ 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 ¶ 7 [Dkt. No. 288]. The military officials in charge of the Guantá namo Bay facility sometimes employ a method called Forced Cell Extraction (" FCE" ) in order to accomplish the feeding. The FCE procedures practiced at the Guantá namo Bay facility are modeled on those used by military corrections facilities and the Federal Bureau of Prisons. Col. Bogdan Decl. at ¶ ¶ 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 ¶ ¶ 5-7 [Dkt. No. 287] (Paralegal's declaration recounting Mr. Dhiab's statements: " I 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. 175]. 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 Guantá namo Bay detainees' challenges to the conditions of their confinement. See Aamer v. Obama, 742 F.3d 1023, 1038, 408 U.S.App.D.C. 291 (D.C. Cir. 2014).

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

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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.

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 Guant√° namo Bay detainee habeas proceedings, the videotapes have been placed on the Court's docket under seal. ...


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