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Dhiab v. Obama

United States District Court, D. Columbia.

December 22, 2015

JIHAD DHIAB, Petitioner,
v.
BARACK OBAMA, et al., Respondents

          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, Cori Crider, LEAD ATTORNEYS, Ahmed Ghappour, Tara L. Murray, REPRIEVE, London, UK; Lisa Jaskol, Los Angeles, CA; Shayana Devendra Kadidal, CENTER FOR CONSITITUTIONAL RIGHTS, New York, NY.

         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, 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, 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 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.

         MEMORANDUM OPINION

         Gladys Kessler, United States District Judge.

         On October 20, 2015, Petitioner filed a Motion to Compel Respondents to Produce Videos without Unnecessary Audio Redaction and to Provide Audio Subtitles and a Written Transcript [Dkt. No. 404]. The Press-Intervenors joined Petitioner in his Motion and, on November 3, 2015, filed a Notice of Joinder [Dkt. No. 409]. The Government filed an Opposition on November 6, 2015 [Dkt. No. 410]. On November 13, 2015, Petitioner and Press-Intervenors filed their Replies [Dkt. Nos. 413, 414].

         Petitioner argues that, because the Government carried out such excessive audio redaction of the 32 sample videos that this Court on October 3, 2014, ordered to be disclosed to the public [Dkt. Nos. 348, 349] it is now impossible to fully understand them. As a consequence, Petitioner requests in his Motion that the " Court order the Government to produce versions of the videos that preserve all audio, save where the content of what is said would disclose the identity of a given member of the military." Mot. at 1. Petitioner also requests an order " requiring the Government to (a) subtitle the videos (except for any identifying content) and (b) release the transcript of the videos that Petitioner's counsel have submitted[.]" Id. According to Petitioner, if the Government is required to release the videos as the Government has redacted them, such release " will make it effectively impossible for the public to understand their contents." Id.

         For the following reasons, the Court is compelled to deny Petitioner's Motion.

         1. In the Memorandum Opinion and Order of October 3, 2014, the Court granted the Motion filed by Press-Intervenors to unseal 32 classified FCE videos which had been filed with the Court under seal in connection with Petitioner's efforts to enjoin the Government from continuing enteral feeding of Petitioner Dhiab. See Dhiab v. Obama, 70 F.Supp.3d 486 (D.D.C. 2014). The Court accepted the Government's position " that protection of identities of Guantanamo Bay staff is a legitimate goal," to which there was no objection. Id. at 501. Consequently, the Court authorized the Government to make " appropriate audio and visual edits" to the FCE videos prior to their public release. Id. The Court made clear that the Government was authorized to " screen[] names and voices, blur[] faces, and identify[] portions of uniforms, and black[]-out written materials on [Guantanamo] walls." Id. (emphasis added). Finally, the Court's Order specified that " all identifiers of individuals in the videotapes (i.e., faces other than Mr. Dhiab's, voices, names, etc.) shall be redacted[.]" Order (emphasis added). On October 9, 2014, the Court issued an additional Order directing the Government to complete the permitted redaction of all 32 FEC videos in eight days, by October 17, 2014 [Dkt. No. 355] in order to speed up completion of the redactions so that the final videos could -- finally -- be released to the American public. Petitioner did not object to the Orders.

         Subsequently, on July 10, 2015, after the Government had appealed the Court's Orders, and the Court of Appeals remanded the case because it lacked jurisdiction, this Court set a second schedule for production of the redacted FCE videos. The Court required the Government to produce redacted versions of eight full-length FCE videos by August 31, 2015, and redacted versions of two compilation FCE videos created by Respondents and Petitioner respectively by September 30, 2015 [Dkt. No. 387].

         The Government fully complied (albeit not happily) with the required schedule, and filed with the Court the 10 FCE redacted videos as authorized by the Court on October 3, 2014. In sum, the Government fully complied with the Court's Order and, for that reason alone, there is no justification for granting the Motion and delaying release of the properly redacted videos.

         2. Petitioner and Press-Intervenors are simply too late to now -- at this late date -- ask the Court to make significant changes in its original Orders of October 3, 2014. On July 14, 2015, after remand from the Court of Appeals, the Court set a new schedule requiring the Government to produce redacted versions of eight full-length FCE videos by August 31, 2015, and redacted versions of the two compilation FCE videos created by the Government and Petitioner, respectively, by September 30, 2015. On July 13, 2015, the Government sent Petitioner's counsel a seven-minute sample of a redacted FCE video. On July 14, 2015, for the very first time, Petitioner expressed concern as to how the voices would be muted.

         The Government then considered alternative procedures to protect the voices of Government personnel, but made a final determination that muting the voices was the most appropriate and secure way to avoid any identification of U.S. personnel.[1] The Government disclosed the first set of FCE videos on August 31, 2015, as ordered by the Court. Thereafter, Petitioner's counsel waited almost eight weeks to review the videos and file the pending Motion raising specific concerns about the audio.

         Petitioner had access to the redacted FCE videos for weeks and has been on notice for over a year that the Government would, as authorized by the Court, mute the voices of U.S. personnel. Petitioner now requests that the Government should publicly release all voices of U.S. personnel included in the videos, except in those limited instances where the content of that audio identifies the person. Mot. at 1. Petitioner never objected to the terms contained in the Court's original Order authorizing what steps the Government could take to protect the " identities of Guantanamo Bay staff," including " screening names and voices," Dhiab, 70 F.Supp.3d at 501, and counsel at no time sought any reconsideration or clarification of the Court's Orders before the Government appealed them. It must be emphasized once again that those Orders stated clearly that " all identifiers of individuals in the videotapes (i.e., faces ...


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