[00:00:00] Speaker 00: Case 14-5299, Jihad Dihab, detainee, Guantanamo Bay Naval Station, and Shocker Amir as next friend of Jihad Dihab. [00:00:11] Speaker 00: The Barack Obama, President of the United States at all, appellants, Hearst Corporation at all. [00:00:17] Speaker 00: Ms. [00:00:17] Speaker 00: Dorsey for the appellants, Mr. Schultz for the Appellees Hearst Corporation, and Mr. Eisenberg for Appellee Jihad Dihab. [00:00:26] Speaker 01: Good morning, Your Honor. [00:00:27] Speaker 01: May it please the Court? [00:00:29] Speaker 01: Katherine Dorsey on behalf of Respondents Appellants. [00:00:33] Speaker 01: The District Court here ordered the public disclosure of 32 videos, videos that depict Petitioner Dieb's forced cell extractions and or internal feedings, despite the Executive Branch's determination that those videos are properly classified as secret because their disclosure could reasonably expect it to cause serious damage to national security. [00:00:56] Speaker 01: The district court ordered that public disclosure without any determination that the videos were not properly classified and did so despite its recognition that no other court in the context of the Guantanamo litigation had ordered the public disclosure of classified information over the government's objective. [00:01:13] Speaker 01: Objection. [00:01:14] Speaker 01: The district court in doing so here relied on the press enterprise... Ms. [00:01:18] Speaker 05: Dorsey, before we get to this, unless you're going to do what the government quite appropriately did in the last case and admit [00:01:25] Speaker 05: a question regarding jurisdiction, we're going to have to start with the jurisdictional question. [00:01:29] Speaker 05: I assume you're not now willing to admit that, in fact, we don't have jurisdiction over this case. [00:01:33] Speaker 01: That's correct, Your Honor. [00:01:34] Speaker 05: So you agree with me that this is not a final judgment itself, leave it aside to collateral order doctrine, that this is not a final judgment under 1291. [00:01:43] Speaker 05: You agree? [00:01:44] Speaker 07: That's correct, Your Honor. [00:01:45] Speaker 05: And that's because there is still some stuff for the district court to do. [00:01:48] Speaker 05: One is redactions, one is agreeing on a public release program, et cetera, right? [00:01:54] Speaker 02: Correct. [00:01:55] Speaker 05: And the government is not prepared now to say that if they can't reach agreement on either of those, it'll just give up and do whatever the interveners want, correct? [00:02:03] Speaker 05: That's correct. [00:02:04] Speaker 05: And you won't just give up and do whatever the district court says. [00:02:07] Speaker 05: You'll appeal again. [00:02:08] Speaker 07: That's correct. [00:02:09] Speaker 05: So we have the problem of potentially hearing this case again. [00:02:14] Speaker 05: If you lose, you would hear this case yet again on the question of whether the redactions are appropriate, et cetera. [00:02:21] Speaker 05: That's right, isn't it? [00:02:23] Speaker 05: That is, if we were to decide this case now against you, that wouldn't be the end of the matter. [00:02:32] Speaker 05: They would still go down to the district court. [00:02:33] Speaker 05: There would still be discussions about whether the redactions are appropriate or not, et cetera. [00:02:37] Speaker 05: Correct? [00:02:38] Speaker 01: Potentially, yes. [00:02:39] Speaker 05: So your only hope here, then, is the collateral order doctor. [00:02:42] Speaker 01: That's correct, Your Honor. [00:02:44] Speaker 01: And or mandamus. [00:02:45] Speaker 05: Well, we'll get to a good point, and we'll get to both of them. [00:02:48] Speaker 05: So now I'm just trying to clear away some of the underbrush here. [00:02:52] Speaker 05: The collateral order doctrine requires three things. [00:02:55] Speaker 05: The third is the one I'm interested in. [00:02:56] Speaker 05: Effectively unreviewable on appeal from the final judgment on the underlying action. [00:03:03] Speaker 05: So assume the district court resolves the redactions and assume district court resolves all them in your favor. [00:03:10] Speaker 05: And at that time, the district court says, OK, I'm done. [00:03:15] Speaker 05: Now release the documents. [00:03:17] Speaker 05: Why can't you appeal then? [00:03:21] Speaker 01: Because even if the redactions are done, so you're saying, oh, just after the redactions, issues in order are made. [00:03:30] Speaker 01: That's right. [00:03:31] Speaker 05: Why can't we wait? [00:03:32] Speaker 05: That's what the collateral order doctrine and the final judgment rule is all about. [00:03:36] Speaker 05: We wait until the case is really done, where the district court really orders you to disclose it now, and you file your appeal, and of course, the attendant stay motion at that time. [00:03:47] Speaker 01: Because we think the district court here has already conclusively resolved that the... Yes, but that is the first prong. [00:03:55] Speaker 05: That's the first prong. [00:03:56] Speaker 05: I am on the third prong. [00:03:58] Speaker 05: I agree with you on the first prong, or at least enough for purposes of this. [00:04:01] Speaker 05: I agree with you on the second. [00:04:03] Speaker 05: least for the purpose of this, I am hung up on why this is effectively unreviewable if you would wait until the matter is resolved, the redaction dispute is over, the public access dispute is over, and at that point you then appeal. [00:04:18] Speaker 05: Why would it be unreviewable at that time? [00:04:21] Speaker 01: Two points, I think, Your Honor. [00:04:22] Speaker 01: The first is that even if the district court just were to, say, approved all the redactions, there's not necessarily or wouldn't be necessarily another order ordering disclosure that we could review because the district court has already ordered the videotapes unsealed. [00:04:40] Speaker 05: No, it says that, I'm just reading the order, the videotape shall remain under seal until the court has approved the joint proposal. [00:04:47] Speaker 01: Right, but what I'm hypothesizing, Your Honor, is that the district court could just issue an order once the redactions issue and just say approved. [00:04:56] Speaker 05: I know, but you've got really good lawyers, they're all sitting back there, they will immediately run and ask for a stay. [00:05:02] Speaker 05: If a stay is not given, which was given in this case, pending appeal already, [00:05:07] Speaker 05: That's not good enough. [00:05:08] Speaker 05: They will immediately run upstairs or downstairs. [00:05:11] Speaker 05: I don't know where the district court is. [00:05:12] Speaker 05: And they will immediately seek a stay here. [00:05:15] Speaker 05: And if this court thinks you're right, it will grant you a stay. [00:05:19] Speaker 05: And if this court, I don't mean this particular panel, but the court, if it thinks you're wrong, then you're going to lose anyway. [00:05:25] Speaker 05: So I don't, this is what the meaning of the words are, effectively, unreviewable on appeal. [00:05:31] Speaker 05: I don't understand why it's not reviewable on appeal. [00:05:36] Speaker 01: Also, the other side has not, we'll say the other side has not challenged. [00:05:40] Speaker 01: I understand it's jurisdictional, obviously, and the court hasn't addressed it. [00:05:42] Speaker 05: Well, it depends on who the other side is. [00:05:44] Speaker 05: Mr. Diab actually thinks that there is no jurisdiction here. [00:05:50] Speaker 05: They've said that. [00:05:52] Speaker 01: Sorry, Your Honor. [00:05:53] Speaker 01: They've only opposed it on the first prong, conclusively. [00:05:57] Speaker 02: Well, I also want to ask you about that, because I know Judge Garland was assuming that he might agree with you on that, but I'm not sure what to do with the fact that at least Mr. Diab thinks the scope of redactions could potentially be broader than I think the intervenors or you seem to think it is and why [00:06:17] Speaker 02: Imagine if this court were to determine we didn't have jurisdiction at this stage and you were to go back through the redaction process. [00:06:25] Speaker 02: Would you not consider it open to you to fight about particular redactions beyond the face and names type information that the district court references in the order? [00:06:36] Speaker 02: You would have no opportunity to go back and say, look at this right here. [00:06:44] Speaker 02: Please, this can't go out. [00:06:45] Speaker 02: Here's why. [00:06:46] Speaker 02: This isn't already out there, as Mr. Geo would say. [00:06:49] Speaker 01: I think, Your Honor, the District Court's decision is clear that the District Court rejected all our arguments about stealing portions of the video that were classified. [00:07:00] Speaker 02: I'm asking you what you would do as a government lawyer. [00:07:03] Speaker 02: I guess my assumption is that if going through the deduction process and the course of taking things out, [00:07:09] Speaker 02: You're probably going to have some disagreements about the scope of what's appropriately redacted and if in that process you saw something that was particularly of concern, you really wanted to make sure the district court focused on that. [00:07:22] Speaker 02: I bet you would think you had the procedural opportunity to [00:07:25] Speaker 02: flag that again for the district court and say, in the course of fighting over redactions with them, say, and by the way, look, please look one more time at this. [00:07:35] Speaker 02: But, Your Honor, even if we took the... Yes, you could do that. [00:07:39] Speaker 01: No, I don't think that's right, Your Honor. [00:07:40] Speaker 02: You wouldn't do that. [00:07:42] Speaker 02: You're issuing the opportunity to even try that in district court? [00:07:45] Speaker 01: I'd like to explain why, Your Honor, because even if we take the broadable possible scope of the redactions permitted by the district court order, even if we agreed to whatever interveners and petitioners agreed were the appropriate redactions, there's still information in the videos that we think cannot be released, and that is what the district court [00:08:04] Speaker 01: has not permitted us to do, and that litigation would not cover that scope. [00:08:08] Speaker 02: I understand that there's some things that I think the district court, again, I guess changes of mind can always happen, but the district court's committed to, but really what is being disclosed could change in this retraction process, could it not? [00:08:25] Speaker 01: In terms of the redactions of the identifying information that the district court permitted, yes, no doubt there would be litigation over those specifics. [00:08:34] Speaker 01: But even beyond that, no matter what scope there is, still the government is going to object to the underlying videos being released because there is classified information there that is not, no matter how broadly that redaction permission is interpreted to be, there's still information that the government does not believe can be released. [00:08:55] Speaker 05: It still only gets you past number one and I'm still stuck on number three. [00:08:58] Speaker 05: So why isn't this reviewable at the end? [00:09:05] Speaker 05: Like any other case where a court orders release of something, why don't we wait until the order actually occurs? [00:09:15] Speaker 01: Well, Your Honor, the order has occurred and that the District Court has determined that it's not going to revisit the unsealing. [00:09:25] Speaker 05: But as I read to you, it has not ordered unsealing yet. [00:09:28] Speaker 05: What I mean by that is when the case is final, [00:09:33] Speaker 05: You already told me that the case is not final, right? [00:09:35] Speaker 05: We agreed together that the case, that we do not have a final judgment yet, right? [00:09:40] Speaker 05: Okay. [00:09:40] Speaker 05: And we don't have a final judgment because that only occurs when, I'm just trying to get the quotation exactly, when the action is terminated and [00:09:58] Speaker 05: The litigation has ended, leaving nothing more for the court to do. [00:10:02] Speaker 05: So we're definitely not at that stage yet. [00:10:04] Speaker 05: So why can't we wait until that stage? [00:10:07] Speaker 05: How do you satisfy the effectively unreviewable requirement of the collateral order doctor? [00:10:12] Speaker 01: Well, I believe for one, because two reasons again, which I think I didn't get to the second one yet. [00:10:17] Speaker 01: The court has granted the order unsealing. [00:10:20] Speaker 05: Your first reason was that the other side agrees with you, and that, as you know, carries no weight because the Supreme Court has told us that it's up to us to decide jurisdiction, correct? [00:10:30] Speaker 01: That's correct. [00:10:32] Speaker 05: So we're hoping for number two here. [00:10:33] Speaker 01: So then I have two points beyond that. [00:10:35] Speaker 05: That makes three. [00:10:37] Speaker 01: So one is that the district court has granted the unsealing order. [00:10:42] Speaker 01: There's nothing necessarily more that the court has to do. [00:10:45] Speaker 01: I know it didn't set a specific date for the disclosure. [00:10:48] Speaker 05: It said, I just read you, that it will remain sealed until, isn't that right? [00:10:54] Speaker 01: Yes, and it also stated that it granted the motion. [00:11:01] Speaker 05: It issued a clarification order. [00:11:04] Speaker 05: The clarification order says the videotape shall remain under seal until the court has approved the joint proposal. [00:11:10] Speaker 05: If you don't disclose it right today, you're not in contempt of the court, correct? [00:11:14] Speaker 01: That's correct, Your Honor. [00:11:15] Speaker 01: But it did say in the same order, the October 3rd order, it stated that the unopposed motion to intervene is granted and the motion to unseal is granted with the following modifications. [00:11:27] Speaker 01: And then on October 9th, again, it noted that it had granted the motion to unseal. [00:11:35] Speaker 05: And again, so even though a date says... Are you fighting me on the question of whether it's a final or are you fighting me on the question of whether it's unreviewable? [00:11:44] Speaker 05: Which do these points go to? [00:11:47] Speaker 01: I mean, the way you're reading the final, I think it goes to both, Your Honor. [00:11:52] Speaker 05: Tell me why you can't wait until there's actually an order requiring you to unseal. [00:11:59] Speaker 01: The other problem is that the redaction process, we've explained, that is a tremendous burden to undergo the redaction process [00:12:07] Speaker 05: It would take, DOD has estimated 1,200 man-hours to... So now we're stuck up against at least two, but probably ten, Supreme Court opinions directly on this question. [00:12:17] Speaker 05: I'm going to read them to you, and then you can tell me how you can possibly distinguish this case. [00:12:23] Speaker 05: The first one, and the most important one, is Richardson Merrill, where the court says, the possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality of a requirement imposed by Congress. [00:12:39] Speaker 05: If the expense of litigation were a sufficient reason for granting an exception to the final judgment rule, the exception might well swallow the rule. [00:12:48] Speaker 05: Similarly, in the Laurel Lyons case, the court says, [00:12:53] Speaker 05: effectively unreviewable occurs only where the order at issue involves an asserted right which would be destroyed if it were not vindicated. [00:13:02] Speaker 05: The possibility that a ruling may be erroneous, may impose additional litigation expenses, are not sufficient. [00:13:10] Speaker 05: And then in the recent Supreme Court's opinion in Mohawk, the Court says [00:13:16] Speaker 05: that a ruling may burden litigants in ways that are only imperfectly repairable by appellate reversal has never sufficed to satisfy the collateral order doctrine. [00:13:27] Speaker 05: Do you know any case where the court has ever held that the fact that the litigants have to go ahead and spend effort, time, money, that that is a loan enough under the collateral order doctrine to make it effectively unreviewable? [00:13:44] Speaker 01: No, I don't, Your Honor, but the thing I would point to again here is that the court has ordered the videos unsealed. [00:13:50] Speaker 01: It has not set a date certain, but that notion that the videos are going to be unsealed, the kind of cat is out of the bag has been enough for a collateral order. [00:14:02] Speaker 05: Well, I've been on several of those cases, and the meaning of the cat out of the bag meant that the document would be disclosed to the public. [00:14:10] Speaker 05: If we deny this [00:14:12] Speaker 05: If we say you don't have jurisdiction, the next thing that happens is not going to be that the photos or the videos won't. [00:14:19] Speaker 05: be disclosed. [00:14:19] Speaker 05: The next thing that will happen is we'll have an argument about redactions, and then the court will issue an order, and then if you don't get a stay, the cat will be out of the bag. [00:14:28] Speaker 01: But I don't think that's necessarily right, Your Honor. [00:14:30] Speaker 01: Let's say we go through the next step of going through the redaction process. [00:14:35] Speaker 01: The parties give their joint proposal. [00:14:39] Speaker 01: The court could just say, stamp approved. [00:14:42] Speaker 01: And then what happens is we are obligated [00:14:45] Speaker 01: by the court's prior order to disclose the videos. [00:14:49] Speaker 05: If you tell the court that you'll need a stay at that moment and the court declines to grant you a stay, that sounds like a good mandamus claim. [00:14:58] Speaker 05: But we're not there yet. [00:14:59] Speaker 05: We're not anywhere near that. [00:15:00] Speaker 05: And given the court's willingness to give a stay on her own at this point, I really think that the suggestion that the court's going to hold you in contempt while you try to seek a stay is inappropriate, I think. [00:15:14] Speaker 05: And not inappropriate in a bad way, but I think that suggests a lack of understanding on the part of the district court, which the district court has not shown. [00:15:26] Speaker 05: So I don't see why you can't. [00:15:28] Speaker 05: Can we go on to the mandamus question? [00:15:35] Speaker 05: I was a little uncertain what your strategy here is, because by the time you got to the reply brief, you dropped the mandamus argument. [00:15:41] Speaker 05: I thought it might be that you were afraid that if you won, you would be stuck with the clear and indisputable [00:15:47] Speaker 05: right test, which maybe you don't want this case decided by. [00:15:50] Speaker 05: Do you want us to consider mandamus as a potential for jurisdiction here? [00:15:54] Speaker 01: Yes, Your Honor, we do. [00:15:56] Speaker 05: Then in that case, how do we get to the language of mandamus, which is almost identical to the third step of the collateral order doctrine? [00:16:04] Speaker 05: Mandamus requires that there be no other adequate means to attain the relief desired. [00:16:11] Speaker 05: And the further statement that the writ will not be used [00:16:15] Speaker 05: as a substitute for the regular appeals process. [00:16:18] Speaker 05: So don't we have the same problem? [00:16:21] Speaker 05: You have another adequate means. [00:16:23] Speaker 05: You seek a stay here or in the district court, and you appeal when the case is over. [00:16:29] Speaker 05: Why doesn't mandamus lead to the same result as collateral order doctrine? [00:16:36] Speaker 01: Well, we don't think it does, Your Honor, because again, we think the district court has [00:16:41] Speaker 01: made the clear determination here that these tapes are going to be unsealed, and so that there is, if we can't take a collateral order appeal, there is no other means to get adequate relief, especially in light of the additional burden of having to conduct, complete the redactions. [00:16:59] Speaker 02: Can I talk about that burden point? [00:17:03] Speaker 02: My recollection is, I don't remember the exact date, but the district court had given a relatively short time frame for the redaction process. [00:17:09] Speaker 02: Do you remember, was it weeks or months? [00:17:11] Speaker 01: I think it was about a week, if I recall. [00:17:14] Speaker 02: It was October 17th, and the date was October 9th. [00:17:17] Speaker 02: And obviously, she stated everything. [00:17:20] Speaker 02: What I want to understand is, is your burden argument just a burden argument? [00:17:26] Speaker 02: Or is your argument that you couldn't, and have you made this to the district court, that you could not safely, in your view, consistent with your desire to protect at least the things that her order will let you protect, it just cannot be done. [00:17:43] Speaker 02: And so her time frame forces a release. [00:17:46] Speaker 02: I didn't see this in your brief, but I was trying to figure out how that time frame factored into the burden. [00:17:51] Speaker 01: In terms of the original deadline she had set, yes, we indicated that we couldn't meet that burden in any event. [00:17:57] Speaker 01: And then we also explained that it was just a tremendous burden with the man hours, 12,000 man hours. [00:18:04] Speaker 02: So then if there were no jurisdiction now, would you have the ability to ask the district court, at least for the time you would need to engage in what I suspect could be a discussion intensive redaction process? [00:18:21] Speaker 02: with at least Mr. DeHobbs' counsel? [00:18:25] Speaker 01: Yeah, I mean, I don't... Do we know what the time frame would be or? [00:18:28] Speaker 01: I don't know what the time frame would be. [00:18:29] Speaker 02: I mean, I would have... But you're not hanging on that time frame as the basis for your, those are your reparable injury if you're not allowed to appeal now. [00:18:38] Speaker 01: I mean, I think it's another factor that goes into the burden and the time, but it's true. [00:18:43] Speaker 01: We don't know exactly what that time frame would be. [00:18:45] Speaker 05: What form did you ask for more time? [00:18:49] Speaker 05: Did you ask for more time? [00:18:50] Speaker 01: Well, we asked her in the stay. [00:18:52] Speaker 01: We just explained in the stay. [00:18:53] Speaker 05: The stay was pending appeal. [00:18:55] Speaker 01: Yes. [00:18:56] Speaker 05: Well, that's not the same. [00:18:58] Speaker 05: Did you ask her for more time to complete the redactions? [00:19:06] Speaker 01: No, we said we couldn't complete it and did that in the process of asking for the stay, saying it was not feasible. [00:19:13] Speaker 05: The district court has not made a judgment final, unfinal, or anything else on the question of whether to grant more time. [00:19:20] Speaker 05: If you were to come in and say, [00:19:25] Speaker 05: Court of Appeals has held that there's no interlocutory jurisdiction. [00:19:29] Speaker 05: We have to go forward with the redactions. [00:19:32] Speaker 05: We can't do it within the time frame in light of the affidavit that you filed. [00:19:35] Speaker 05: That affidavit was filed only with the Court of Appeals or with the District Court, the one on man hours? [00:19:41] Speaker 01: That was filed both with the District Court and the Court of Appeals. [00:19:44] Speaker 05: So if you said, in light of this affidavit, we are now going to go forward with the redactions, but we can't do it in a week or whatever it is, District Court would not say, I've already ruled on that question. [00:19:54] Speaker 01: I don't believe so, Your Honor. [00:19:59] Speaker 05: Having exhausted ourselves on the exhaustion of jurisdiction question, please proceed to the merits. [00:20:05] Speaker 01: We think the district court here, Your Honor, is erred in relying on the Press Enterprise case [00:20:11] Speaker 01: to order the unsealing of the videos. [00:20:14] Speaker 01: We think that case is simply inapplicable here. [00:20:17] Speaker 01: Press Enterprise addressed whether there was a First Amendment right of access to criminal proceedings and whether such a right was limited by the judiciary's authority to seal certain proceedings and or records. [00:20:28] Speaker 01: But the issue here is not whether the judiciary has authority to seal unclassified records for which there would be a presumptive First Amendment right of access, but whether the court can disregard an executive branch determination that these videos are classified and unseal them. [00:20:46] Speaker 01: So in other words, the Press Enterprise test was about sealing unclassified records and was not about unsealing classified records. [00:20:54] Speaker 04: So what is the test then? [00:20:58] Speaker 04: Are you saying, because you're not agreeing that the test is the test that we used in Amazien, I'm sure I'm mispronouncing that name, the 2012 case from this court, Amazien versus Obama. [00:21:14] Speaker 04: You're not agreeing that that's the test, or are you agreeing that that's the test? [00:21:18] Speaker 01: No. [00:21:18] Speaker 01: In this case, Your Honor, we don't think there is a First Amendment right to classified documents. [00:21:24] Speaker 01: And so that is the end of the matter, because there are classified documents here. [00:21:28] Speaker 01: There's no inquiry for this court to conduct. [00:21:35] Speaker 01: The First Amendment is not a FOIA action. [00:21:40] Speaker 01: petitioner or the interveners here had brought a FOIA action, then in the normal scope of that, the court could look into whether, you know, verify whether the videos were properly classified and properly withheld under Exemption 1. [00:21:54] Speaker 01: But under the First Amendment, there's no similar test here. [00:21:59] Speaker 02: How would you articulate what the First Amendment issue is? [00:22:07] Speaker 02: Would we ask, is there a tradition, logic and experience relative to access to [00:22:15] Speaker 02: classified information to or to information that is determined to be protected by laws external to the court? [00:22:28] Speaker 02: Or do we ask whether there's a tradition of access to documents in motions and habeas proceedings or quantanamo habeas proceedings? [00:22:36] Speaker 02: What exactly is the First Amendment question in your view? [00:22:38] Speaker 02: How is it articulated? [00:22:39] Speaker 02: What do you apply logic and experience to? [00:22:41] Speaker 01: Here, if you were applying that First Amendment test in First Enterprise, then you would look to whether there was a history of public access to classified information. [00:22:52] Speaker 02: I'm asking what the object of the Press Enterprise or the First Amendment test should be, and that is, are you agreeing that the, are you saying the test here is whether there's history and experience with access to classified information? [00:23:07] Speaker 02: Or there just seems to be a fight about whether you look at the documents or whether you look at the proceedings. [00:23:13] Speaker 01: I think, Your Honor, you look at both. [00:23:15] Speaker 01: The case law suggests that you look at both. [00:23:18] Speaker 01: And so you look at whether there's a history of public access to the particular type of proceeding. [00:23:23] Speaker 01: And then in that proceeding, whether there's a history of public access to classified proceedings or classified information in those proceedings. [00:23:32] Speaker 01: The district court here relied on, in addressing that prong of the First Amendment test in press enterprise, relied on Judge Hogan's decision in Ray Guantanamo litigation and noted that that court had found that there was a history of public access to habeas proceedings. [00:23:53] Speaker 01: or well, he concluded an access to civil proceedings generally, but did not specifically address habeas proceedings, but it also did not address classified proceedings. [00:24:04] Speaker 05: Your position is that no matter how central the document or the testimony is to the resolution of a court case, the court under no circumstances [00:24:19] Speaker 05: can disclose it if the government has stamped it secret. [00:24:24] Speaker 05: Is that right? [00:24:25] Speaker 01: That is our position. [00:24:26] Speaker 05: So if the government, if the document turns out to be a copy of the Gettysburg Address and the government has stamped it secret and says this proves that Mr. Diab, in a criminal trial, this proves that Mr. Diab blew up the World Trade Center. [00:24:46] Speaker 05: And the court says there's nothing in that document that proves that. [00:24:49] Speaker 05: And this is the government's whole case. [00:24:51] Speaker 05: And since it's the central exhibit, and I know the government is lying about that document, completely lying. [00:24:59] Speaker 05: Court cannot disclose it. [00:25:01] Speaker 05: Just want to be clear about that. [00:25:03] Speaker 05: That's the government's position. [00:25:04] Speaker 05: Even if there is no, I'm going to use the phrase familiar to you, logical or plausible reason for the government's conclusion [00:25:14] Speaker 05: that it could reasonably be thought to harm the national interest. [00:25:19] Speaker 05: Absolutely no rational reason at all. [00:25:21] Speaker 05: The government's position is that the court, with respect to the documents that are fundamental to a decision in the court, cannot be disclosed. [00:25:32] Speaker 05: That's the government's position. [00:25:33] Speaker 01: Your hypothetical is the criminal context. [00:25:36] Speaker 05: Civil, I'm happy to do civil. [00:25:37] Speaker 05: I'm happy to do any context that you want. [00:25:42] Speaker 05: I want to go over to the civil on the theory that whatever Sixth Amendment rights, et cetera, don't apply. [00:25:48] Speaker 05: But assuming, if you would assume with me, that the First Amendment applies to actions in civil as well as criminal, under those circumstances, your position is that court has absolutely no authority, even if the government is A, irrational, or B, hiding something. [00:26:05] Speaker 05: Let's put it another way. [00:26:06] Speaker 05: Imagine that the document, instead of A, [00:26:11] Speaker 05: of being the Gettysburg Address, in fact, is a video showing that, I have to choose this carefully so I don't get in any trouble, some famous politician robbing a bank with a machine gun without [00:26:28] Speaker 05: without a mask. [00:26:30] Speaker 05: And by the way, this politician has nothing to do with foreign policy in any way, or the national security in any way, just robbing. [00:26:38] Speaker 05: And it's a video. [00:26:39] Speaker 05: But the government seals the video, allows it to be used to convict the guy, but seals it, calling it classified. [00:26:49] Speaker 05: The court cannot reveal it, even though it is the basis of the court's determination. [00:26:55] Speaker 01: were in the in a first amendment just to get access to that document. [00:27:02] Speaker 05: Well, yes, that's right. [00:27:04] Speaker 01: That is our position. [00:27:05] Speaker 01: But again, in this case, Your Honor, we don't think it makes a difference. [00:27:08] Speaker 05: No, it's not this case. [00:27:09] Speaker 05: Oh, it doesn't make a difference. [00:27:10] Speaker 05: No, I understand that's another argument. [00:27:12] Speaker 05: But I first want to know where we are here. [00:27:15] Speaker 05: So when you say a First Amendment case, take it out of that, can the court, in its discretion, thinking that it's necessary, [00:27:22] Speaker 05: for public confidence in the integrity of the judiciary, disclosed the document, even without newspapers coming in and asking. [00:27:31] Speaker 05: So it's not First Amendment, it's the court's exercise of its discretion over its own proceedings. [00:27:38] Speaker 01: And the court in that case, I assume, sorry to answer your question with a question, but determines that it's not properly classified. [00:27:45] Speaker 05: Yes, yes. [00:27:46] Speaker 05: My assumption is it's not properly classified either because it's not rational, has nothing to do with national security, or number two, it's intended as a cover-up of something that obviously has nothing to do with national security. [00:27:59] Speaker 01: then I think that's a very different case you're on. [00:28:01] Speaker 05: I know that, otherwise I wouldn't ask you. [00:28:03] Speaker 05: But is the government's position that the court has no authority under those circumstances to apply any kind of test and must just accept the secret stamp? [00:28:13] Speaker 01: No, I don't think that's our position. [00:28:15] Speaker 01: Your Honor, here I think what we're arguing is the First Amendment is not a proper vehicle here for getting, seeking access to these videos and that there's not a First Amendment right to documents that are stamped classified and so this Court should not conduct an inquiry. [00:28:30] Speaker 01: But if this Court disagrees, you know, and thinks there should be an inquiry into whether [00:28:35] Speaker 01: documents are properly classified, the court could do that, and we think the outcome here would be the same, that the district judge's order would have to be reversed, ordering the unsealing, because just like in a FOIA context, if you're looking at exemption one to determine whether the documents are properly classified, [00:28:54] Speaker 01: If the court here were to review the declaration we filed, the Butler Declaration, that would provide ample authority for this court to decide that the information here is proper. [00:29:05] Speaker 05: Do you think we have as much authority, at least as much authority, as we have in the FOIA context? [00:29:11] Speaker 01: Again, we don't think the First Amendment is the proper vehicle for this issue to be raised and litigated. [00:29:17] Speaker 01: We think the interveners here should have, if anything, if they want to litigate whether the information here is properly classified, the appropriate way to do that would have been for a FOIA request for the video. [00:29:30] Speaker 05: Could the district court on its own have decided [00:29:35] Speaker 05: No one's asked me yet, or even if they did ask me. [00:29:37] Speaker 05: I'm not going to do this based on the First Amendment. [00:29:40] Speaker 05: I'm going to do this on the integrity of judicial proceedings and my control. [00:29:44] Speaker 05: Would you agree that, at least for that decision, the rational and plausible test applies? [00:29:53] Speaker 01: I think that would make sense. [00:29:54] Speaker 01: Yes, Your Honor. [00:29:55] Speaker 04: Why wouldn't the McGahee v. Casey standard apply, which is a little bit less deferential to the government? [00:30:04] Speaker 01: We don't think that case is applicable here, in that that's a pre-publication CIA censorship review case. [00:30:10] Speaker 01: And that's a situation where the individual seeking release already has the information in his hands. [00:30:19] Speaker 01: It's different. [00:30:19] Speaker 01: But the logical implausible or rational implausible, we think, is a very similar standard between that and the context you'd have in FOIA, too. [00:30:35] Speaker 01: So I'm not sure there's a great distinction between those two standards, Your Honor. [00:30:40] Speaker 01: I think in substance, if you're applying that to look at whether the information is properly classified, the court's going to get the same result. [00:30:53] Speaker 05: OK. [00:30:53] Speaker 05: We'll hear from the other side. [00:30:55] Speaker 05: I want to hear from Mr. DeHalve first. [00:30:56] Speaker 05: Is that right? [00:30:57] Speaker 05: What's the order? [00:30:59] Speaker 05: from Hearst Corporation first. [00:31:01] Speaker 05: Are you going to address the jurisdictional questions? [00:31:02] Speaker 06: Yes, I am. [00:31:03] Speaker 06: And I am John B. Eisenberg for Petitioner Diab. [00:31:07] Speaker 06: And I will be addressing the jurisdictional issues, and Mr. Schultz will be addressing the merits issues. [00:31:13] Speaker 02: Before we end, just to set it up, can you, as part of your jurisdictional argument, talk a little bit about what I understood to be your view [00:31:20] Speaker 02: a broader potential scope to the reaction process than I think the government understood it to be. [00:31:26] Speaker 02: I thought you said it could be at least discussing things that were, they may be able to protect things that are not already in the public domain. [00:31:36] Speaker 06: Yes. [00:31:36] Speaker 06: I was going to begin with the third prong, but why don't I start with that since we're there. [00:31:46] Speaker 06: 29 of the District Court's Memorandum of Opinion. [00:31:49] Speaker 06: This is page 226 of the Unclassified Appendix. [00:31:55] Speaker 06: This is where Judge... I'm sorry, page again, which page? [00:31:58] Speaker 06: I'm sorry, this would be 226 of the Appendix. [00:32:02] Speaker 02: And what opinion... I'm sorry, because I actually have her opinion here separately. [00:32:05] Speaker 06: I'm sorry, page 29 of her opinion. [00:32:20] Speaker 06: And this is where the judge mentions adequate protection for identities and the like. [00:32:27] Speaker 06: And she says in the middle of the page, adequate protection can be provided by appropriate audio and visual edits. [00:32:34] Speaker 06: For example, screening names and voices, blurring faces and identifying portions of uniforms, and blacking out written materials on walls. [00:32:45] Speaker 06: I am quite confident that the government will seize upon those two words [00:32:51] Speaker 06: For example, as a basis for arguing they can do redaction to beyond blurring phases and blacking out names. [00:32:58] Speaker 06: This is what pretty much I expect we will be litigating if and when we go back down to the district court to litigate the extent of redaction. [00:33:07] Speaker 05: So you agree that there's going to be some more litigation? [00:33:09] Speaker 05: Oh, yes. [00:33:10] Speaker 05: So you don't think that it satisfies the collateral order doctrine? [00:33:13] Speaker 05: I do not. [00:33:14] Speaker 05: And you don't think that it satisfies the final judgment rule? [00:33:17] Speaker 05: I do not. [00:33:17] Speaker 05: Now what about mandamus? [00:33:19] Speaker 06: for the same reason it doesn't satisfy the third problem. [00:33:23] Speaker 06: The third problem, whether or not this decision is effectively unrevealable. [00:33:29] Speaker 06: Now, I heard Ms. [00:33:30] Speaker 06: Dorsey say [00:33:33] Speaker 06: They've only opposed on the first prong. [00:33:36] Speaker 06: That is not true. [00:33:38] Speaker 06: We oppose on the third prong as well, specifically at page 12 of our reply brief where we argue this. [00:33:45] Speaker 06: And this is prefaced with, the government contends immediate appellate review is essential to prevent disclosure of the videotapes. [00:33:53] Speaker 06: That's the third prong. [00:33:55] Speaker 06: And our response was the district court, and I'm reading from the brief now. [00:33:59] Speaker 06: The district court's order keeps the videotapes under seal until the court issues an order for their disclosure pursuant to an approved proposal. [00:34:08] Speaker 06: Once the district court issues that order, the government can prevent mootness by commencing an appeal from that order and seeking an immediate stay of disclosure during the pendency of that appeal. [00:34:20] Speaker 06: These videotapes will not see the light of day until the last appellate court that has asked to look at them approves it. [00:34:29] Speaker 06: Period. [00:34:30] Speaker 06: There's no danger of effective unreviewability. [00:34:33] Speaker 06: And for that reason, there's no basis for mandamus relief either. [00:34:37] Speaker 02: What about the time frame? [00:34:39] Speaker 02: What if, I'm going to go back to what the judge said, I said one week, I meet one week, and they say, we can't. [00:34:45] Speaker 02: We can't. [00:34:46] Speaker 02: physically, can't physically be done. [00:34:49] Speaker 02: I mean, would you be amenable to more time, or how is that going to be worked out? [00:34:54] Speaker 02: How would that be worked out for that to happen? [00:34:56] Speaker 06: We have endeavored to cooperate in every way possible with the government to litigate this case on the merits in a timely, [00:35:04] Speaker 06: and yet fair fashion. [00:35:06] Speaker 06: Of course, we would accommodate a request for more time. [00:35:09] Speaker 06: They've never asked for that. [00:35:11] Speaker 06: They do not want to release redacted videotapes. [00:35:15] Speaker 06: They have taken the position all along that not one frame of these videotapes should ever see the light of day. [00:35:22] Speaker 06: And I assure you, Your Honors, that there are many, many frames of these videotapes that can see the light of day without endangering national security. [00:35:32] Speaker 06: Now, I wanted to get to the question of, well, if not a collateral order appeal, why not mandamus review? [00:35:41] Speaker 06: And it's for the same reason, the lack of the element of effective unreviewability. [00:35:45] Speaker 06: I'll quote here from M. A. Kellogg, Brown and Root, this is a 2014 case, at 756 F3rd at page 388. [00:35:57] Speaker 06: And it states that the mandamus petitioner must have no other adequate means to attain the relief he desires. [00:36:06] Speaker 06: It's the same standard. [00:36:09] Speaker 06: A mandamus relief is available only in response to a cry of pain, a cry for relief. [00:36:18] Speaker 06: If you don't do something [00:36:20] Speaker 06: the cat will be out of the bag. [00:36:22] Speaker 06: This cat is firmly ensconced in the bag and will not come out of the bag. [00:36:27] Speaker 05: Right. [00:36:27] Speaker 05: The reference isn't really good because we've been using cat out of the bag as the third step of collateral order, Doc. [00:36:32] Speaker 05: All right. [00:36:33] Speaker 05: I want to force out of the barn. [00:36:34] Speaker 05: Yeah, that's been all right. [00:36:36] Speaker 06: We'll use that for a lot. [00:36:39] Speaker 06: I always like toothpaste out, too. [00:36:42] Speaker 06: That works for me, too. [00:36:45] Speaker 06: Okay, so the third problem is just not here. [00:36:50] Speaker 06: Now let me get back to the question of whether or not there will be more litigation over the redactions. [00:36:56] Speaker 06: Oh, yes, there will. [00:36:57] Speaker 06: We have litigated everything in this case. [00:36:59] Speaker 06: We have tried on our side, on Mr. Diab's side, we have tried to come to a combination time and again with the government, from the very slightest issue to the very most important issue, and we get nowhere. [00:37:12] Speaker 02: And I appreciate efforts to cooperate through litigation. [00:37:17] Speaker 02: Did you oppose the stay in this case, or would you oppose a stay? [00:37:23] Speaker 06: No. [00:37:24] Speaker 02: You didn't oppose and you wouldn't oppose. [00:37:26] Speaker 06: No. [00:37:28] Speaker 06: No. [00:37:28] Speaker 06: No, it's understandable. [00:37:30] Speaker 06: No, and I, we will, we will be patient. [00:37:36] Speaker 06: But what we will have to sit through is what Ms. [00:37:38] Speaker 06: Dorsey said is yes, no doubt there would be litigation over the specifics of the redaction. [00:37:44] Speaker 06: And that's why the first prong isn't present here. [00:37:48] Speaker 06: We don't have a final order. [00:37:50] Speaker 06: We don't have the Court's last word on the subject. [00:37:53] Speaker 06: There's lots left to be done here. [00:37:57] Speaker 05: Yeah, I think we're over time now unless there's a question. [00:38:00] Speaker 02: If I just had one more, I think now I could be wrong whether it's Amesian, but we have had a case post Mohawk where, I think it was Amesian, it was post Mohawk where we did allow review on essentially the same rationale that the district, that the government is arguing here as I see it. [00:38:21] Speaker 02: How do you distinguish the interlocutory jurisdictional decision in Amesian? [00:38:28] Speaker 02: It didn't talk about Mohawk, which is a little bit of an issue, but that was a task force transfer decision on this one. [00:38:40] Speaker 02: And they said, look, there may be some quibbling around the edges, but the core ruling that these transfer records are going to come out is done, and so we can have the case now. [00:38:51] Speaker 06: Right. [00:38:51] Speaker 06: Those records would have come out absence of relief. [00:38:54] Speaker 06: These videotapes will not be released. [00:38:57] Speaker 02: Well, they were going to come out from the order that was being appealed. [00:38:59] Speaker 02: There was still going to be some haggling about the contours of the final order in that case. [00:39:04] Speaker 02: And I don't know why the same arguments wouldn't have worked there. [00:39:07] Speaker 06: But wasn't the notion that eventually the train had left the station, if I can go to another metaphor, and there was no stopping it? [00:39:14] Speaker 02: Well, I mean, metaphors are nice, except they don't hinge to the reality here of I think what they would say is substantively on the law [00:39:22] Speaker 02: The train has left the station or the toothpaste left the tube. [00:39:26] Speaker 02: The district court has said this some core part. [00:39:32] Speaker 02: of this is coming out. [00:39:34] Speaker 02: And I'll let you block out names, faces, uniforms, things on wall, covert communications, and at least in your view, maybe some unknown more, but the guts are coming out. [00:39:50] Speaker 02: And I don't think, I assume you don't think, they don't think, or anyone thinks that core ruling is going to change, and I thought that's what was going on in a museum too. [00:39:59] Speaker 06: It may well, I think that [00:40:01] Speaker 06: I recall when Judge Kessler issued that order, she immediately asked the court, will you be seeking a stay? [00:40:09] Speaker 06: Judge Kessler brought up the notion of a stay before the government could. [00:40:13] Speaker 06: And the government said, yes, of course we are. [00:40:15] Speaker 06: And that's the key difference here. [00:40:17] Speaker 06: It was known from the start. [00:40:19] Speaker 06: The judge anticipated it. [00:40:21] Speaker 06: The government asked for it. [00:40:22] Speaker 06: It was put in place. [00:40:24] Speaker 06: And we would stipulate to it if asked. [00:40:27] Speaker 05: Can I ask about a museum? [00:40:28] Speaker 05: I thought it is true that the documents were to be unsealed immediately, but counsel would have been allowed immediately to say the status of his detainee, and that is the thing that the government was trying to keep secret. [00:40:42] Speaker 05: Yes, something would have happened. [00:40:43] Speaker 05: Nothing would have stopped, without the decision, nothing would have stopped counsel from disclosing the fact of the detainee's status. [00:40:51] Speaker 06: Yes, and that would have been the deed that could not be undone. [00:40:56] Speaker 02: And we had to do the stay in that case, not the district court. [00:40:59] Speaker 06: I'm sorry? [00:40:59] Speaker 02: We had to do the stay in the museum. [00:41:01] Speaker 06: Yes. [00:41:01] Speaker 06: Yes, and I'm sure, no doubt if Judge Kessler had not done the stay, this court would have. [00:41:07] Speaker 06: It's just the way things normally work. [00:41:10] Speaker 05: Any other questions? [00:41:12] Speaker 06: Okay, thank you. [00:41:12] Speaker 03: Thank you. [00:41:18] Speaker 03: May it please the Court, David Schulz on behalf of the press interveners. [00:41:22] Speaker 05: I was going to focus on the substance, the merits of the... I would like to know what the intervener's view is about jurisdiction. [00:41:29] Speaker 05: The intervener's brief doesn't really question that there's no...seems to agree there's no final order and the collateral order doctrine doesn't apply and seems to rest on mandamus. [00:41:39] Speaker 05: What is your position here? [00:41:41] Speaker 03: We essentially took the position that the government hasn't invoked mandamus jurisdiction here. [00:41:46] Speaker 03: They've kind of made their bed, and they should lie on it. [00:41:48] Speaker 03: And it's our position also. [00:41:49] Speaker 03: One other point that hasn't been adequately brought out here, that it's not just a question about Mr. Diab's rights and the government's rights here. [00:41:56] Speaker 03: There is a public right at stake here that is extremely important. [00:42:00] Speaker 03: And it's a right of contemporaneous access to judicial records. [00:42:03] Speaker 05: I haven't seen that argument made in the briefs at all. [00:42:07] Speaker 05: Now I'm hearing it for the first time. [00:42:09] Speaker 03: because it was our view that there was mandamus jurisdiction and one way or the other this court was going to reach the merits. [00:42:15] Speaker 05: That is quite an ability to foresee what we normally do here because I don't know when I was in practice I wouldn't have already assumed the government's going to come out that the court's going to come out that way. [00:42:28] Speaker 03: Fair enough, Jeff. [00:42:29] Speaker 05: How did you know we were going to decide the merit? [00:42:32] Speaker 03: We haven't decided that yet. [00:42:33] Speaker 03: The government has taken the position that there is a legal issue that has been finally resolved. [00:42:38] Speaker 03: The question of whether, it's a pure legal question of whether classified information... But our habit isn't to do whatever the government tells us to do. [00:42:45] Speaker 05: So if you want to argue the jurisdictional argument, you need to... [00:42:50] Speaker 05: And you think there is jurisdiction here, you need to tell us. [00:42:53] Speaker 03: I think that there's mandamus jurisdiction to hear that issue, and that it's important for the court to exercise it because of the public, the important public right here. [00:43:01] Speaker 03: We're talking about videotapes that Mr. Diab and his counsel have contended establish illegal conduct by government employees, 28 videotapes that the district court watched, and after watching them said it provided insufficient evidence to issue an injunction. [00:43:16] Speaker 05: You don't suggest anything? [00:43:17] Speaker 05: But you're not seeking mandamus. [00:43:19] Speaker 05: This is an argument by which you might seek mandamus, not an argument by which the government might seek. [00:43:25] Speaker 05: Well, the government takes the same position that it's entitled to a review of the... Yes, but they don't take the position that they're entitled to an immediate disclosure of the documents. [00:43:34] Speaker 05: That's your argument. [00:43:35] Speaker 05: So I'm a little confused how those fit together. [00:43:37] Speaker 03: Well, that's the argument. [00:43:38] Speaker 03: We negotiate with the government that we would [00:43:41] Speaker 03: stipulate to a stay as long as the government agreed to expedite the appeal, because our view is that we need to get this done. [00:43:47] Speaker 03: We took the position of her on the district court. [00:43:50] Speaker 03: And you know, this is a case where the president has invited public debate on this. [00:43:53] Speaker 02: He's asked the American people... When you talk about the right of public access that you're, which you're advocating here, I assume you think that's a right of public access to the material on these videotapes post-redaction process, or are you suggesting [00:44:11] Speaker 02: There shouldn't be any redactions at all. [00:44:13] Speaker 02: You should get the whole thing. [00:44:15] Speaker 03: We haven't appealed from the court's order authorizing redaction. [00:44:19] Speaker 03: And so your position is that the public... Our position is that we're entitled to the videotapes that the court applying the proper standard. [00:44:26] Speaker 03: We believe the district court applies the proper standard. [00:44:27] Speaker 02: Post-redaction. [00:44:28] Speaker 02: The only public access, the only public right you're seeking to vindicate here or the press right you're seeking to vindicate here is access to post-redaction. [00:44:35] Speaker 03: We have no objection to the narrow redactions the district court found appropriate based on the record before her. [00:44:41] Speaker 02: So then there is no basis whatsoever for... I guess I'm not understanding what your public access argument is, because I think it sounds like you recognize there's not even a right to public access now or today. [00:44:54] Speaker 02: You have to go through this redaction process. [00:44:56] Speaker 03: Which is why it's important for this legal issue to be resolved, because the government is stringing this out and stringing this out at a time when... They're not stringing it out. [00:45:04] Speaker 02: They want us to decide it now. [00:45:06] Speaker 03: I'm sorry? [00:45:06] Speaker 02: They're not stringing it out. [00:45:07] Speaker 02: They want us to decide it now, too. [00:45:09] Speaker 03: Well, and we think that's correct. [00:45:11] Speaker 03: I mean, what's going to happen is down below, they haven't started these redactions. [00:45:16] Speaker 03: You know, they said it's going to take them weeks and weeks to do the redactions and they haven't started them. [00:45:19] Speaker 02: Did you agree to the stay or did you oppose the stay? [00:45:22] Speaker 03: We agreed to the stay on a condition of expedition. [00:45:25] Speaker 02: Okay. [00:45:25] Speaker 02: But then you can't really complain that they haven't started the redaction process. [00:45:28] Speaker 02: You agree it could be stayed. [00:45:29] Speaker 03: We had an expectation that this legal issue would be resolved and that that was the quickest way to get this to a conclusion. [00:45:35] Speaker 03: Understood, Judge. [00:45:36] Speaker 05: Can I ask you now, moving along to the merits, you said you thought that the district court applied the right standard. [00:45:43] Speaker 05: So I read the district court as applying the rational and plausible standard. [00:45:48] Speaker 05: Is that the standard you think is the right standard? [00:45:50] Speaker 03: Here's what I believe the district court did, which I think is totally correct and totally consistent with decades of settled precedent. [00:45:56] Speaker 03: The district court said there is a First Amendment right of access to civil proceedings, including habeas proceedings, [00:46:03] Speaker 03: But that right of access, as this court said in Robinson, extends to the judicial records relating to that proceeding, and that the press enterprise to standard governs. [00:46:12] Speaker 03: But that says that the public is entitled to see this evidence unless the government shows a compelling interest. [00:46:19] Speaker 03: that there is a substantial probability of harm to that interest and that there are no adequate alternatives. [00:46:26] Speaker 03: That's the standard that governs this. [00:46:28] Speaker 03: Now, it is true that when the interest alleged is national security, the executive branch is entitled to some deference. [00:46:35] Speaker 03: And what the district court did, which I think is appropriate, [00:46:37] Speaker 03: is to say that that deference is built into the standard that we've used in FOIA cases of requiring not clear and convincing evidence or not even beyond a reasonable doubt that this harm is going to happen, but simply that the government would be put to the task of plausibly and logically establishing through specific facts that there is indeed a potential probability of harm. [00:46:58] Speaker 05: This is very helpful, and I wasn't clear about this, so I want to be clear. [00:47:03] Speaker 05: So someone might have thought that [00:47:07] Speaker 05: You were arguing for the substantial probability test, as in press enterprises, to actually be applied to this regardless of whether it was classified. [00:47:16] Speaker 05: But what you are in fact telling me is that in a situation of a classified document, [00:47:22] Speaker 05: the substantial probability test becomes the rational or plausible test? [00:47:27] Speaker 05: Is that right? [00:47:27] Speaker 03: No, Judge, I think it's a little refined from that. [00:47:30] Speaker 03: I want to be clear. [00:47:31] Speaker 03: Our position is that the plausible and logical test is a test that affords deference to the government's predictive estimates. [00:47:43] Speaker 03: And where national security is the compelling harm for which the government has the burden of showing a substantial probability that it will be threatened, [00:47:51] Speaker 03: that in weighing the government's evidence, it is appropriate to apply deference through the substantial. [00:47:56] Speaker 03: So the government's task here, as the district, I believe what the district court said, was to provide through plausible and logical evidence a demonstration that there was, in fact, a substantial probability of harm to national security. [00:48:10] Speaker 05: So this is getting clearer. [00:48:13] Speaker 05: So the requirement for secret, which is reasonable for all, actually for all classifications, which is only reasonable probability of something, right? [00:48:21] Speaker 05: Probably of different degrees of harm, but still only reasonable. [00:48:26] Speaker 05: That's not enough even if it was logical and plausible for the government to believe that it should be classified on that basis. [00:48:34] Speaker 05: That's your position. [00:48:35] Speaker 03: That's correct. [00:48:36] Speaker 03: And just to be clear, you know, the First Amendment standard is a different standard than is it properly classified. [00:48:42] Speaker 03: In the FOIA context, that's the question. [00:48:45] Speaker 03: Does the district court find that this is properly classified? [00:48:48] Speaker 04: So that would effectively unclassify all classified documents? [00:48:53] Speaker 03: No, it would absolutely not do that, Judge Wilkins. [00:48:55] Speaker 03: The government makes that argument, but let me just explain. [00:48:58] Speaker 04: Why wouldn't it? [00:48:59] Speaker 04: Well, unless the government can meet your higher burden. [00:49:04] Speaker 04: But basically, the fault that we start out with is that all classified documents no longer are classified where there's a First Amendment right to public access. [00:49:13] Speaker 03: The basic problem that the government has, the error that it makes, which is a huge issue, and this Court really needs to set this right because it's a question that goes to the functioning of our democracy. [00:49:25] Speaker 03: You know, this First Amendment right of access is a right, it is a structural right, that's what the Supreme Court said. [00:49:31] Speaker 03: It's there to provide confidence that the judiciary is working properly. [00:49:35] Speaker 03: It's there to provide democratic oversight of government activities. [00:49:39] Speaker 03: The government confuses [00:49:40] Speaker 03: Hang on, hang on. [00:49:41] Speaker 02: It's not there to provide government oversight, oversight of government activities. [00:49:46] Speaker 02: It's a right to provide access to court documents. [00:49:50] Speaker 02: It does not create, there's no First Amendment right to documents in the executive or legislative branch's hands. [00:49:57] Speaker 03: Absolutely. [00:49:57] Speaker 02: Alright, so it's not a FOIA, let's oversee the executive branch. [00:50:01] Speaker 03: That's absolutely correct, Judge. [00:50:03] Speaker 03: The point I was trying to make, which Justice Brennan makes very clearly in the Globe case, that the access right to judicial proceedings and records encompasses within it, it derives from under the First Amendment, the public's basic right to know what the government is up to. [00:50:19] Speaker 03: That's the reason the Court found the right to exist in the judicial context. [00:50:24] Speaker 03: and where the government is a party such as in a criminal case. [00:50:27] Speaker 02: I keep seeing what the government's up to. [00:50:28] Speaker 02: I think it's just to see what happened in the judicial branch, in the court. [00:50:33] Speaker 03: Correct. [00:50:34] Speaker 03: That's where it derives from. [00:50:35] Speaker 02: So we would apply, even if government wasn't a party, would it apply to trade secrets that are submitted in a motion in a patent case? [00:50:43] Speaker 03: That's correct, Judge. [00:50:44] Speaker 02: But the point I'm trying to make is... So trade secrets now, someone has to show a substantial probability [00:50:49] Speaker 02: The Koch formula comes out unless they have a substantial probability satisfaction. [00:50:54] Speaker 02: I guess they would say they would meet that. [00:50:55] Speaker 03: Let me just try to be clear about what I'm saying in terms of the purpose of the first memory. [00:51:01] Speaker 03: What Justice Brennan said in the Globe case, this is 457 U.S. [00:51:05] Speaker 03: at 604 and 05. [00:51:06] Speaker 03: So the First Amendment serves to ensure that individual citizens can effectively participate in and contribute to our Republican form of self-government. [00:51:15] Speaker 03: Meaning we have to know certain facts if we're going to elect people that represent our views, right? [00:51:21] Speaker 03: And we went on to say that the access right that the court articulated in Richmond newspaper exists, they found it to be constitutionally embedded in the First Amendment, to ensure that the constitutionally protected discussion of governmental affairs is an informed one. [00:51:37] Speaker 03: Now it's right that the court said that this isn't a broad access right to everything in the government. [00:51:41] Speaker 03: It's a right of access to judicial records. [00:51:44] Speaker 03: But where those judicial records relate to the conduct of other government officials, the First Amendment concerns are only heightened. [00:51:52] Speaker 02: But it's also never been held to be an unqualified right of access to court records. [00:51:56] Speaker 03: That's correct. [00:51:57] Speaker 03: And that's the substantial probability of harm test. [00:52:01] Speaker 02: Well, I think you don't get to that if there's not a tradition of access at all, and that's why I'm trying to understand how we apply this to categories of documents. [00:52:14] Speaker 02: Here, classified information could be trade secrets, could be attorney-client information, all kinds of protected information that only comes into the court system with a promise [00:52:27] Speaker 02: an individualized determination that it shouldn't be public, and a promise that it isn't going to be public as part of the court proceeding. [00:52:37] Speaker 03: And again, I think the application of the standard, as the Supreme Court articulated it, answers that. [00:52:42] Speaker 03: And again, Globe is the key case here. [00:52:44] Speaker 03: The argument in Globe, which involved the question of whether the Massachusetts legislature could by statute require [00:52:53] Speaker 03: a closed proceeding any time a juvenile victim of a sex crime testified. [00:52:58] Speaker 02: Right, but what was at issue there was a mandatory exclusion and what the courts, I don't want to over read the decision there, left open the ability to have individualized [00:53:12] Speaker 02: balancing determinations as to, it didn't address the right of access to information that on an individualized basis is determined to meet by the court to be appropriately protected. [00:53:23] Speaker 02: So it just doesn't answer this question of access. [00:53:26] Speaker 03: Sorry. [00:53:26] Speaker 03: What the court said specifically was that it requires an individualized test. [00:53:30] Speaker 03: And in footnote 13, it explains, it says, you know, Massachusetts just misunderstands how this [00:53:35] Speaker 03: how this right works, which is the same misunderstanding the government has here. [00:53:39] Speaker 03: We don't say that this information typically comes in secretly or even that there was a history of juveniles testifying in secret and therefore say that those types of proceedings can be closed. [00:53:53] Speaker 03: Proceeding itself has a history of openness, criminal trials. [00:53:57] Speaker 03: Here, the proceeding itself, civil cases, or even habeas, if you want to take habeas alone. [00:54:01] Speaker 03: Inray Milligan says it was done in open court in 1866. [00:54:05] Speaker 03: So the proceeding is what's important. [00:54:08] Speaker 03: And then the documents that relate to that proceeding are subject to the excess rate. [00:54:12] Speaker 03: And just as in Globe, where the court said, it may well be that most of the time, this stuff [00:54:21] Speaker 03: satisfies the test and will be sealed. [00:54:26] Speaker 03: You still apply the test. [00:54:27] Speaker 03: You don't say, this is all exempt. [00:54:29] Speaker 03: There's no First Amendment right. [00:54:30] Speaker 03: The court has an affirmative role to apply the standard and decide if the specific classified information, which is a record of the court, meets that standard. [00:54:39] Speaker 05: Again, just to be clear on the assumption that you're right, that the First Amendment applies, [00:54:46] Speaker 05: Your test is that it has to be rational and plausible, logical and plausible, whatever the phrase is, that there's a substantial probability of harm to national security. [00:54:57] Speaker 05: So does that mean we would be overruling what we said in McGeehee? [00:55:01] Speaker 05: So in McGeehee, which was a case in which the CIA officer actually, it was his own document, right? [00:55:08] Speaker 05: It was material he wanted to disclose. [00:55:11] Speaker 05: And the court said the test is, courts must assure themselves that the reasons for classification are rational and plausible ones. [00:55:20] Speaker 05: It didn't say that we vet, because the reason for classification here is only a reasonable probability. [00:55:25] Speaker 05: So we would have to overrule McGeehee. [00:55:27] Speaker 03: Absolutely not. [00:55:28] Speaker 05: Why not? [00:55:28] Speaker 03: Because McGeehee was a case, while he was asserting a First Amendment right, which is what we're asserting here, he was asserting it in the context of having signed a contract [00:55:37] Speaker 03: saying that he waived that right if the information was classified. [00:55:40] Speaker 03: So the issue the court was addressing there was essentially the same question as in a FOIA case. [00:55:44] Speaker 03: Has the government demonstrated that something is properly classified? [00:55:48] Speaker 03: It is not the issue that we have here. [00:55:50] Speaker 03: What we have here is what was in Inroy Washington Post, the Fourth Circuit case, where they very clearly said that two classified affidavits submitted in support of a sentencing [00:56:00] Speaker 03: were subject to the press enterprise standard. [00:56:03] Speaker 03: It's the same issue that was presented to us. [00:56:05] Speaker 02: What do you do with Amesian? [00:56:06] Speaker 02: I'm sorry. [00:56:07] Speaker 02: What do you do with the Amesian versus Obama case, where I see no evidence that we were applying a substantial probability of harm test. [00:56:17] Speaker 02: And in fact, page 497 is filled with courts aren't supposed to substitute their judgment for the executive. [00:56:23] Speaker 02: As long as they come forward and given particularized and individualized showing, [00:56:28] Speaker 02: like the Supreme Court would require, we defer their judgments about whether something's going to harm national security. [00:56:35] Speaker 03: Sure. [00:56:36] Speaker 03: Amisian was, again, a case like Morikin to McGeehee, where the lawyers who were asking for permission to release information were subject to a protective order that they had consented to. [00:56:49] Speaker 03: They had agreed with the government that they would treat the information in a certain way. [00:56:53] Speaker 03: So there is really a different question there. [00:56:55] Speaker 03: It's the question, Morikin again, to McGeehee. [00:56:59] Speaker 03: They're saying, we should be allowed out from under this, because there's no reason to keep us under the protective order. [00:57:04] Speaker 03: And so it's a more narrow question where they had consented to those restraints. [00:57:09] Speaker 02: Well, Mr. Diab's counsel consented to these restraints as well. [00:57:13] Speaker 02: Mr. Diab's counsel consented to these conditions for access to information to do. [00:57:17] Speaker 03: But the press hasn't. [00:57:18] Speaker 03: The press hasn't, the public has a right to know what happens in court proceedings. [00:57:25] Speaker 02: That would apply to Amazien as well then, would it not? [00:57:30] Speaker 03: That case didn't involve an assertion by the public of their rights. [00:57:34] Speaker 04: There's lots of cases, parties didn't brief these cases, but there's cases involving criminal proceedings and sentencing in access to the pre-sentence report prepared for the defendant. [00:57:53] Speaker 04: So it's a sentencing proceeding. [00:57:55] Speaker 04: There's a public right of access. [00:57:58] Speaker 04: It's the key document that the court is going to rely upon to make its decision about what sentence to give that individual. [00:58:08] Speaker 04: But yet, there's lots of cases. [00:58:11] Speaker 04: Those are always filed under seal. [00:58:13] Speaker 04: And there's lots of cases about that the court looks at kind of individually whether there's a need to access that document. [00:58:22] Speaker 04: and the public loses most of those cases when the press says we want the pre-sentence report. [00:58:30] Speaker 03: I would make two responses, Judge, and this really goes back to the question you asked earlier about are we making all classified information in court public. [00:58:39] Speaker 03: Just because the First Amendment access right applies does not mean it becomes public. [00:58:43] Speaker 03: There are many instances where there are compelling reasons to keep it secret. [00:58:47] Speaker 03: So for example, the government posits this scenario where all FOIA cases are going to require documents to be released if they're looked at in camera. [00:58:55] Speaker 03: The answer is no. [00:58:57] Speaker 03: And it's because there is a compelling reason to keep information secret when secrecy is essential for the court itself to function. [00:59:05] Speaker 03: No one is saying that this first amendment right of access makes it impossible to courts for function. [00:59:10] Speaker 03: So in a trial, if a piece of evidence is being offered and someone says, you can't show that to the jury, that was attorney-client information, it was produced in error, whatever, there's a sidebar, there may well be reason for the judge to look at that and keep that confidentiality, makes that determination. [00:59:23] Speaker 03: And that's a compelling reason that overcomes the public's right. [00:59:26] Speaker 03: Same thing would be true in a FOIA case. [00:59:28] Speaker 03: If the judge has to look at a document to decide whether FOIA applies, that is a compelling reason. [00:59:34] Speaker 02: That's different from, that's where the process itself is just to decide whether something should be, you know, the entire litigation process is about whether this should be released or not under statute. [00:59:44] Speaker 02: That seems very different. [00:59:45] Speaker 02: But what do we do with [00:59:47] Speaker 02: pre-sentence report information or trade secret information that comes in, it's the basis for decision, or it's a factor in decision making, maybe a very important factor in decision making. [01:00:00] Speaker 02: Does everybody who now litigates cases involving trade secrets have to worry that their competitor who has the same First Amendment right of access as you can say, hey, I'd like to see that too? [01:00:11] Speaker 03: It's litigated all the time, Judge, and courts regularly uphold secrecy of trade secrets. [01:00:16] Speaker 03: Under substantial probability tests? [01:00:18] Speaker 03: Absolutely. [01:00:19] Speaker 03: There's a whole series of cases in the Seventh Circuit where parties have entered into sealing orders in the course of discovery, and the Seventh Circuit has been very clear, look, when it comes to court, the public has a right. [01:00:30] Speaker 03: That doesn't mean it's disclosed. [01:00:32] Speaker 03: It means the standard is applied. [01:00:33] Speaker 03: That's the rule of law. [01:00:34] Speaker 02: Do you have cases where someone said, a competitor said, [01:00:39] Speaker 02: Hey, I've seen company A and B fighting over patents, gazillions of dollars. [01:00:43] Speaker 02: I'm company C. I'd like to break into that business. [01:00:45] Speaker 02: I want to see that information. [01:00:47] Speaker 02: I'm filing a First Amendment right of access to that trade secret information. [01:00:51] Speaker 02: Do you have a case where they said it will be released absent substantial probability? [01:00:56] Speaker 03: As I stand here right now, I don't, but if it is a court record that was introduced in the evidence that the public right of access attaches to, that standard applies. [01:01:03] Speaker 04: The Seventh Circuit hasn't used the substantial probability standard in the context of pre-sentence reports. [01:01:10] Speaker 04: They explicitly rejected it. [01:01:13] Speaker 03: I don't know circuit for circuit as I said here. [01:01:15] Speaker 03: Some circuits have adopted, some circuits have said that the First Amendment right of access doesn't apply to pre-sentence reports because they've looked at a history of logic analysis as it doesn't apply. [01:01:24] Speaker 03: So you need to look at the history. [01:01:26] Speaker 03: The third circuit I know has said they do apply. [01:01:29] Speaker 03: I'm not familiar with the Seventh Circuit, I'm sorry Judge. [01:01:32] Speaker 02: Are they right if they've done that? [01:01:33] Speaker 02: Because it sounds to me like they're looking at a history and experience of access to documents rather than, of course, there is an access to sentencing proceedings. [01:01:42] Speaker 03: To a type of proceeding. [01:01:44] Speaker 02: No, but clearly there's a history and experience of access to sentencing proceedings, but it sounds like the Seventh Circuit has said, yeah, that's fine, but not to this type of, these documents. [01:01:54] Speaker 03: I don't want to expect that on what the Seventh Circuit has done, Judge. [01:01:58] Speaker 04: But you're not agreeing that that's the test, right? [01:02:01] Speaker 04: I'm sorry? [01:02:01] Speaker 04: At least I know some of your amici don't think that that's the test. [01:02:05] Speaker 04: Do you think that that's the test? [01:02:07] Speaker 03: Which amici don't think that's the test, Judge? [01:02:09] Speaker 04: I think the law professors. [01:02:11] Speaker 04: But as far as looking at the logic and experience of a particular, with respect to a document versus a proceeding, [01:02:21] Speaker 03: I don't think anyone argues that we look at the experience and logic with respect to a document, except where the document... Can you just say that some courts have done that? [01:02:30] Speaker 04: No. [01:02:30] Speaker 03: With respect to pre-sentence reports? [01:02:32] Speaker 03: I said that some... My understanding is, Judge, that some courts have looked at the sentencing process [01:02:39] Speaker 03: and found that the same public right of access doesn't attach to that process, and therefore the reports wouldn't be. [01:02:44] Speaker 03: Some have analyzed it, therefore, just under a common law standard. [01:02:47] Speaker 03: Some courts have gone the other way. [01:02:48] Speaker 03: The Third Circuit I'm familiar with, because I've litigated cases there, they've said that the First Amendment right of access does attach to that proceeding. [01:02:56] Speaker 03: And what we're talking about here is a civil proceeding. [01:02:58] Speaker 03: And it's just fundamental to get these basic principles right because they go to the separation of powers, they go to what the public right of access is. [01:03:07] Speaker 03: And again, it's like because the public right of access applies, it does not mean that it always prevails. [01:03:14] Speaker 03: But it means that there is a standard that must be met. [01:03:18] Speaker 03: And when a member of the press or public comes in and wants to see a document, that standard has to be applied. [01:03:25] Speaker 02: And it's not just, just to be clear, your First Amendment right isn't limited to the press. [01:03:29] Speaker 02: It's any many, anybody. [01:03:30] Speaker 03: The court has been quite clear that the press has no special rights. [01:03:34] Speaker 02: Right, so anybody. [01:03:34] Speaker 03: Okay. [01:03:40] Speaker 03: Thank you. [01:03:42] Speaker 06: Excuse me, Your Honor. [01:03:43] Speaker 06: May I take a moment to clarify a point? [01:03:46] Speaker 06: No, you won't. [01:03:48] Speaker 06: No, we don't get a rebuttal, but there's a point I made. [01:03:51] Speaker 06: It's a really quick clarification. [01:03:52] Speaker 06: Really quick, when the court asked if we had opposed the stay. [01:03:55] Speaker 06: There were two states issued, October 3rd and October 9th. [01:03:59] Speaker 06: They were to stay on release. [01:04:01] Speaker 06: We did not oppose that. [01:04:03] Speaker 06: Subsequently, the government asked for a stay of the entire order, including the redaction order. [01:04:09] Speaker 06: We did oppose that. [01:04:11] Speaker 06: We did not want a stay of the redaction process because we felt that going through the process would demonstrate that this could be done in a manner that protects national security. [01:04:25] Speaker 05: government doesn't have any time, but we'll give you some more time because we give everybody time here. [01:04:30] Speaker 01: Thank you, Your Honor. [01:04:31] Speaker 01: I believe I have been told that I misspoke that in the district court we did ask for more time for the redactions. [01:04:38] Speaker 01: Did you get an answer to that or the answer was a stay and it was mooted? [01:04:40] Speaker 01: I believe it was a stay and it was mooted. [01:04:45] Speaker 01: One point I'd like to make on the mandamus point, Your Honors, is that really here [01:04:52] Speaker 01: There is no adequate relief if we can't have a collateral order appeal because it's not just the administrative burden of going through the redactions, but it's also a diversion of resources from DOD, military resources, and the personnel it uses for that process. [01:05:09] Speaker 01: which are being used to prepare other declassification and classification. [01:05:13] Speaker 05: But that's true in every case, right? [01:05:15] Speaker 05: There's always, whether it's the government or private attorneys, it's always required discovery and everything else that has to happen before an erroneous decision can be overturned. [01:05:27] Speaker 05: There's going to be a diversion of resources. [01:05:29] Speaker 01: Well, I think, Your Honor, what I'd point you maybe for the closest analogy is where courts have granted mandamus to [01:05:35] Speaker 01: stop depositions of heads of agencies and things like that. [01:05:38] Speaker 05: Do you have a head of agency as the Secretary of Defense actually reviewing these documents? [01:05:43] Speaker 01: No, he's not. [01:05:44] Speaker 01: But similar things in that, I think it's still a similar analogy in that an agency head has limited time and resources. [01:05:54] Speaker 05: If your argument were that SEAL Team 6 and other people at the end of the spear have to come back from whatever they're doing to review these documents, I think you would have a very good separation of powers argument. [01:06:08] Speaker 05: But what you're talking about here is diversion from one set of classification reviews to another. [01:06:13] Speaker 05: And obviously, the role of the declassifiers is important, but if we make an exception for this, we're going to have this in every single case where somebody has a good reason why they shouldn't have resource allocation. [01:06:29] Speaker 01: Well, just one more point I think I'd make on that, Your Honor, and then I'll move on, is that in the Guantanamo context, this is a unique set of circumstances we're dealing here with, both in terms of the litigation and the resources committed. [01:06:41] Speaker 01: And I think here, that warrants mandates. [01:06:43] Speaker 02: To be clear, are you suggesting that there is any national security reason or foreign relation consequences from this diversion of resources or simply [01:06:56] Speaker 02: The theories are Guantanamo-specific resources and demands. [01:07:01] Speaker 01: Well, I mean, just in terms of DOD obviously has limited resources overall. [01:07:06] Speaker 01: And when they have to divert resources from other activities, it takes away from other. [01:07:10] Speaker 01: But, I mean, we don't have anything specific on the record to implicate national security concerns by diversion of resources. [01:07:17] Speaker 01: The one other point I'd like to make, Your Honors, is on the merits, is it is very clear here that even if the rational and plausible were the standard to apply, the district court did not apply that here. [01:07:28] Speaker 01: It's clear that the opinion talks about the substantial probability of harm. [01:07:32] Speaker 01: The opinion repeatedly notes that the government has not proved a substantial probability of harm. [01:07:39] Speaker 02: Do you understand the test to be a rational and plausible basis for finding a substantial probability or that the district court replaced rational and plausible with substantial probability? [01:07:54] Speaker 01: I think, I'm not sure there's a difference there, Your Honor, but I think the latter is what happened. [01:08:00] Speaker 01: And if the court had applied the rational implausible, I think it's clear here that the tapes would not have been ordered in seal, but it's clear that the district court went outside that rational implausible and looked to other evidence, looked beyond the government's declaration [01:08:18] Speaker 01: And the court made its own judgments weighing the evidence and deciding. [01:08:23] Speaker 01: And that, even if the rationale was plausible with the standard to apply, that was just not correct here. [01:08:29] Speaker 01: If the court has no other questions, we would ask this court to reverse your section. [01:08:33] Speaker 05: We'll take the matter under submission. [01:08:34] Speaker 05: Thanks to both sides.