United States District Court, D. Columbia.
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.
SHAKER AAMER, as Next Friend of Jihad Dhaib, Petitioner:
Shayana Devendra Kadidal, CENTER FOR CONSITITUTIONAL RIGHTS,
New York, NY.
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,
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.
Kessler, United States District Judge.
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].
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."
following reasons, the Court is compelled to
deny Petitioner's Motion.
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.
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.
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.
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.
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. 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.
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