D.C. Circuit Rejects Media Claim to Guantanamo Force-Feeding Tapes

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in the long-running Dhiab case that media intervenors had no First Amendment right to access redacted and videotapes classified as "secret" of force-feedings at Guantanamo Bay. The ruling overturns the district court order releasing the tapes after government redaction and ensures that the tapes won't be released (at least unless the full D.C. Circuit or Supreme Court reverses). We last posted on the case here.

The court rejected the internors' First Amendment claim under Press-Enterprise Co. v. Superior Court. The court distinguished that case, holding that it dealt with sealed testimony and exhibits in a murder case (not classified national security information, as here) and that it was a criminal prosecution (and not a habeas corpus case, as here). As to the former difference, the court noted that national security information is traditionally well protected, citing the State Secrets Privilege from Reynolds and Totten, the closed hearings in Guantanamo habeas cases, and the classified-material exception in FOIA. As to the latter difference, the court reviewed the history and concluded that "[i]n habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials."

The court went on to say that even if the intervenors had a First Amendment right of access to the tapes, the government's interests in protecting national security justified withholding them. In particular, the court said that the government provided sufficient evidence that the tapes could threaten security at Guantanamo Bay, incite violence against American troops abroad, and serve as propaganda to recruit fighters.