[00:00:01] Speaker 00: Case number 16-5011 at L. Jahad Diab, detainee, Guantanamo Bay Naval Station, and Shakir Amer as next friend of Jahad Diab versus Barack Hussein Obama, President of the United States at L, of Helland's Hearst Corporation. [00:00:18] Speaker 00: Ms. [00:00:18] Speaker 00: Dorsey for Respondents Appellants Cross Appellees. [00:00:21] Speaker 00: Mr. Schultz, Intervenors Appellees Cross Appellants. [00:00:25] Speaker 01: Good afternoon. [00:00:26] Speaker 01: Good afternoon, Your Honors. [00:00:28] Speaker 01: May it please the Court, Katherine Dorsey on behalf of Respondents Appellants. [00:00:33] Speaker 01: The district court here ordered 10 classified videos depicting the forced cell extraction and internal feedings of Mr. Diab in this case without any determination that those videos were not properly classified. [00:00:50] Speaker 01: The court did so finding that it abridged interveners' right to free speech under the First Amendment to deny them access to those classified videos. [00:00:59] Speaker 01: That was an error. [00:01:00] Speaker 01: It is well established that the First Amendment is not a Freedom of Information Act. [00:01:05] Speaker 01: It provides a qualified access, right of access to traditionally public, unclassified judicial records. [00:01:14] Speaker 01: Now here the District Court relied on the Press Enterprise case, which is an exception to that right of access. [00:01:21] Speaker 05: You would agree that is an open question, is it not? [00:01:26] Speaker 01: uh... open question whether a number of circuits have disagreed with your statement the state i'm sorry your honor i'm not sure which statement you're referring to whether that press enterprise doesn't apply whether the first amendment right of access is limited as you suggest i think uh... there have been [00:01:56] Speaker 01: Your Honor, I'm not sure what cases you're citing to be, or referring to, because I think it's, this Court has certainly indicated a number of times, Hutchins and others, that the First Amendment is a qualified right of access and is not a Freedom of Information Act. [00:02:10] Speaker 05: No question. [00:02:13] Speaker 01: I don't think on that point there is any question that is a qualified right of access, Your Honor. [00:02:22] Speaker 05: I said no question. [00:02:23] Speaker 01: Okay. [00:02:24] Speaker 01: Sorry, Your Honor. [00:02:25] Speaker 01: So, in this case here, the district court relied on press enterprise, which we don't think applies in this case. [00:02:33] Speaker 01: Press Enterprise was a limitation on the judiciary's right to seal unclassified records, judicial records that were presumptively public because they were unclassified. [00:02:47] Speaker 01: That exception does not confer on the judiciary authority to unseal properly classified information. [00:02:55] Speaker 01: In fact, Press Enterprise did not deal with classified information. [00:02:59] Speaker 01: and it did not address that separation of powers problem that inheres in this case where there's a First Amendment right and also the executive's prerogative to determine who gets access to classified information. [00:03:12] Speaker 04: As a practical matter, is there much daylight between the test for proper classification and the press enterprise test? [00:03:23] Speaker 01: Yes, your honor, there is the proper classification standard that has traditionally been applied in the FOIA context and also like in pre publication review cases like McGee. [00:03:36] Speaker 01: typically afford substantial weight to the executive's declarations or assessments about why something is classified. [00:03:46] Speaker 01: And the press enterprise test requires a compelling interest and a substantial probability of harm. [00:03:53] Speaker 01: So it's a much more demanding standard than has typically been applied to just review whether something is properly classified. [00:04:04] Speaker 04: Exact meaning of substantial probability. [00:04:10] Speaker 04: I'm going to guess above all that. [00:04:13] Speaker 01: Your Honor, I guess what I would respond is the way the District Court applied press enterprise here certainly was a different standard because the District Court concluded that the fact of classification was irrelevant to press enterprise and also stated that the FOIA standard for proper classification was too lenient [00:04:32] Speaker 01: And so it's clear that the district court here certainly applied a higher standard determining a substantial probability of harm. [00:04:39] Speaker 01: The district court did not review to determine whether the information was properly classified and said that was irrelevant. [00:04:47] Speaker 01: So I think there is a distinction here between those two. [00:04:49] Speaker 01: And in this case, we don't think the First Amendment is an appropriate vehicle even to seek access to classified information. [00:05:04] Speaker 01: that the interveners here could have filed a FOIA request to get access to the videos. [00:05:12] Speaker 01: That would have been the proper way to challenge whether the videos were properly classified. [00:05:19] Speaker 01: but that here there is no First Amendment right of access to these kind of classified videos and no case has recognized that press enterprise applies to classified videos in order disclosure over the government's objection. [00:05:39] Speaker 01: Even if this court were determined that press enterprise is applicable, which again we don't think it is, the result here would be the same in that there's still no First Amendment right of access. [00:05:50] Speaker 01: We think it's clear under the experience and logic test of press enterprise that there is no history of a right of access to the classified information in Guantanamo habeas proceedings. [00:06:01] Speaker 04: I have to say I find that test totally mysterious. [00:06:07] Speaker 04: I mean, how could there be a history? [00:06:09] Speaker 04: if Guantanamo only started to be used relatively recently for detention of prisoners. [00:06:20] Speaker 01: Well, but the Guantanamo cases, habeas cases, have been going on for 10 years now, Your Honor, and in the context of those proceedings, it's certainly clear that there has not routinely been an access to classified information in those proceedings. [00:06:35] Speaker 04: This Court has recognized... [00:06:39] Speaker 04: a request and a denial that gelled into some sort of precedent. [00:06:47] Speaker 04: I'm not sure how it could gel into a precedent without judicial review. [00:06:51] Speaker 01: Well, there have been a number of challenges in the context of these Guantanamo cases, where the government has sought to keep under seal unclassified information, and the court has made it clear, this court has made it clear, that that is this court's responsibility, and the government would need to submit information that would justify such protections. [00:07:15] Speaker 01: But it has not applied the same standard to classified information. [00:07:19] Speaker 01: For example, in New York. [00:07:21] Speaker 03: history and tradition, and you mentioned this, that the habeas proceedings in Guantanamo are rather extraordinary. [00:07:32] Speaker 03: And the Supreme Court went a great length in Boomedin to canvas the history of the writ as it existed in 1789 in England. [00:07:44] Speaker 03: and then came up with the decision that they came up with. [00:07:50] Speaker 03: And the only substantive or even procedural statement in the entire Supreme Court opinion is that the habeas review has to be, quote, meaningful. [00:08:04] Speaker 03: And that was it. [00:08:06] Speaker 03: So do you measure history and tradition in terms of access to documents and habeas? [00:08:13] Speaker 03: with respect to the way that habeas was conducted in 1789 in England, because if you do, there is history with respect to access to documents under the ancient writ, and that was unless you had a proprietary interest in the document, you didn't get access to it. [00:08:34] Speaker 03: And the English case standing for that, in fact, I can't remember, is cited in a Supreme Court opinion [00:08:43] Speaker 03: which I haven't dredged up, but it's an old opinion. [00:08:48] Speaker 01: Well, I think that would support our position here, Your Honor, that there are even under the, if you're looking back to the writ in 1786, that would suggest also there's no right of access to information in habeas proceedings, much less classified information. [00:09:06] Speaker 01: And Boumediene also, the other point that the Supreme Court recognized in Boumediene was that they expected that [00:09:13] Speaker 01: classified information and national security interests involved there would adequately be protected in these habeas proceedings. [00:09:21] Speaker 01: So I think there's every indication that the Supreme Court certainly didn't expect that classified information filed in the habeas proceedings would all of a sudden be publicly available. [00:09:35] Speaker 03: While you're talking about classified, I've heard it said that it was not marked classified. [00:09:40] Speaker 03: No document is ever marked [00:09:43] Speaker 03: classified, right? [00:09:45] Speaker 03: It's either top secret, secret or confidential and then eyes only or whatever. [00:09:51] Speaker 03: What's the other one? [00:09:52] Speaker 01: Correct. [00:09:54] Speaker 01: For official use only or special access, yes. [00:09:59] Speaker 03: I mean, I've seen a lot of classified documents, but I've never seen one that says classified. [00:10:04] Speaker 01: Right. [00:10:04] Speaker 01: I mean, I think in terms of when we say marked classified, we mean either marked with the appropriate header of secret, confidential, or top secret, or special access. [00:10:12] Speaker 01: But just in terms of how we say it in where we've talked about, the court has a role in a FOIA context to determine proper classification. [00:10:23] Speaker 01: Obviously, it's not just that the government then submits the document with the classification stamp on it. [00:10:29] Speaker 03: As I understand it, the defense attorneys who are representing individuals that are detained at Guantanamo have to go through a security clearance. [00:10:38] Speaker 01: Is that correct? [00:10:39] Speaker 01: That's correct, and they receive security clearance and are cleared to receive classified information. [00:10:46] Speaker 03: Were the interveners here, did they get security clearance? [00:10:50] Speaker 01: No, they do not have a clearance. [00:10:53] Speaker 01: So one of the [00:10:56] Speaker 01: Outcomes attorneys, I mean, correct, your honor, and they do not have security clearances. [00:11:01] Speaker 01: So one of the outcomes of the district court's decision here is that if these tapes are released, classified information will be released to the public to interveners. [00:11:12] Speaker 01: to the petitioner himself theoretically, even though those individuals have not been granted a security clearance or determined that they should have access to classified information by the executive. [00:11:24] Speaker 01: The Supreme Court recognized in Eagan that who gets access to classified information is a decision that's in the prerogative of the executive branch. [00:11:32] Speaker 05: So what do you say to the proposition that there was no objection by the government when the detainee counsel [00:11:43] Speaker 05: to the motion by detainees counsel to file the videos as court records. [00:11:54] Speaker 01: Well, the government did object to the discovery, but the government did not object. [00:11:58] Speaker 05: They lost that when the district court denied that motion and granted it in part as the redaction. [00:12:06] Speaker 05: I'm talking about the motion [00:12:09] Speaker 05: to make these videos part of the court record. [00:12:12] Speaker 05: There was no objection by the government. [00:12:15] Speaker 01: And the reason the government didn't object is in pursuant to the expectation in Boomedin that classified information would be litigated in these cases, but that that information would only be given out to counsel who were cleared [00:12:29] Speaker 01: for or granted a security clearance and cleared for access to classified information. [00:12:34] Speaker 01: There was no. [00:12:35] Speaker 05: But in fairness to the sophistication of government litigators, the district court had already made pretty clear that its approach was looking at this case somewhat differently and that it viewed the decision it had to make was not necessarily predetermined [00:12:59] Speaker 05: by the government's classification decision. [00:13:03] Speaker 05: So, if it was ever fair notice that the nature of these documents might be changing, why wouldn't the government have interposed an objection? [00:13:16] Speaker 01: I disagree, Your Honor. [00:13:17] Speaker 01: Again, here it was expected... You disagree with what? [00:13:19] Speaker 01: I disagree that the government was on reasonable notice that these videos... It was a motion file. [00:13:26] Speaker 01: Yes, but there was a protective order that prevented the release of classified information in these cases. [00:13:32] Speaker 05: But the district court had already made clear it was going to make the decision. [00:13:37] Speaker 01: I don't think at that time, Your Honor, there was anything that was clear that the district court was not going, that it was going to be a decision. [00:13:45] Speaker 05: The court was... Well, if the district court bought your first argument, it just would have ended the matter, denied the motion for intervention as futile, basically. [00:13:59] Speaker 01: I think at the time when the government did not object to the filing of the videos after they were ordered discovered, the government had every reasonable expectation that the videos would only be provided to detainees counsel and to the court. [00:14:16] Speaker 01: There was a protective order in place and nobody else had a security clearance in the case. [00:14:23] Speaker 01: Under Egan and other established law, this court routinely protects, and the district court routinely protects classified information filed in court. [00:14:34] Speaker 01: So there was absolutely no expectation. [00:14:36] Speaker 05: So you're saying there was a reasonable reliance by the government, and that explains its failure to object. [00:14:44] Speaker 01: Absolutely, and the government was doing its part to give what information could be given to cleared counsel as Boumediene directed these cases to proceed. [00:14:55] Speaker 01: The government has made a real effort in the Guantanamo case is to provide what information it can to cleared counsel and consistent with that the government did that but it certainly had no expectation that these records could later be publicly disclosed and certainly that's the case [00:15:11] Speaker 01: Guantanamo cases have been going on for 10 years and there is a vast amount of classified information that has been filed again pursuant to protective orders in these cases with the expectation that that information will only be shared with the court and clear counsel. [00:15:30] Speaker 01: If this court has no other questions, I see that I'm out of time. [00:15:33] Speaker 05: We would ask the court to... Well, I guess I do have a couple of questions. [00:15:36] Speaker 05: You have an alternative argument. [00:15:38] Speaker 01: Yes. [00:15:39] Speaker 05: It says even under the district court's approach, you win. [00:15:44] Speaker 01: Yes, Your Honor. [00:15:45] Speaker 01: We think at two points, even if you were to apply press enterprise under the, as we start to discuss, under the experience and logic test, we don't think there would be a First Amendment right of access here. [00:15:56] Speaker 05: I'm beyond that. [00:15:57] Speaker 05: To your third alternative. [00:15:59] Speaker 01: We think that the government's declarations here did show compelling interest to protect national security. [00:16:08] Speaker 01: The declarations, they're set forth for national security concerns. [00:16:13] Speaker 01: They explain in detail how the videos could be used by detainees to develop countermeasures. [00:16:19] Speaker 05: So on that third argument, our standard of review is abuse of discretion. [00:16:29] Speaker 01: I think that's, well, yes, Your Honor, although again, we think that the legal question here about whether the, would be de novo, whether they correctly, that district court correctly applied the law. [00:16:45] Speaker 05: No, no, we're on the third option. [00:16:47] Speaker 01: Yes, I understand that. [00:16:48] Speaker 05: The third option is, even assuming. [00:16:49] Speaker 01: Yes, even assuming. [00:16:50] Speaker 05: The district court properly proceeded. [00:16:53] Speaker 01: Yes. [00:16:55] Speaker 01: Then I agree, I think it would be abuse of discretion, Your Honor. [00:17:02] Speaker 01: But here, as we explained in our briefs, we don't think the district court did not apply the substantial deference in looking at the harms, which we think would be appropriate, and how the executives weighing of the harms and its concerns, because again, the executive and the military officials who wrote these declarations are the ones with expertise to judge the seriousness of the concerns. [00:17:27] Speaker 01: And they relied on both the countermeasures, direct incitement of violence, [00:17:31] Speaker 01: the fact that more forced cell extractions might become necessary, and the concern that it might, if these videos were released, it might dilute the protections afforded to U.S. [00:17:42] Speaker 01: personnel. [00:17:42] Speaker 03: You haven't argued that the case is moot, have you? [00:17:46] Speaker 01: No. [00:17:47] Speaker 03: Not this case, no. [00:17:51] Speaker 03: How do you distinguish a situation where an intervener comes in and there's a discovery that is pending? [00:18:01] Speaker 03: But the case gets settled, the actual case. [00:18:06] Speaker 03: The discovery request is still outstanding. [00:18:08] Speaker 03: Does that discovery request not move? [00:18:13] Speaker 01: I guess it would depend. [00:18:14] Speaker 01: It might be one of also these situations where it's capable of repetition and occurring. [00:18:20] Speaker 01: So the question might be one that might prevent. [00:18:22] Speaker 03: The capable of repetition thing only applies to capable of repetition between the same parties with the same issue. [00:18:32] Speaker 03: So I don't think that would apply. [00:18:34] Speaker 03: How do you distinguish that situation? [00:18:38] Speaker 03: That's essentially what we have here. [00:18:41] Speaker 03: I'm entitled to discovery. [00:18:43] Speaker 03: The only difference is I'm entitled to discovery because it's the First Amendment. [00:18:46] Speaker 03: But if the case is moved, then they still have a remedy. [00:18:52] Speaker 03: It's under the Freedom of Information Act. [00:18:55] Speaker 01: Well, certainly, Your Honor, we agree that their remedy is under the Freedom of Information Act. [00:19:02] Speaker 03: that I've mentioned is Nixon versus Warner Communications, 1978, citing an 1829 English decision, habeas, I think. [00:19:15] Speaker 03: Okay. [00:19:18] Speaker 01: If the court has no further questions, we would ask this court to reverse the disclosure order. [00:19:23] Speaker 05: Thank you. [00:19:30] Speaker 05: All right. [00:19:32] Speaker 02: Good afternoon, Judge. [00:19:33] Speaker 02: David Schulz for the interveners who are news organizations who are seeking to assert the public right of access to evidence admitted into the record in a civil proceeding. [00:19:43] Speaker 02: I say at the outset that there's a great deal that the government argues in its position that the interveners have no quarrel with. [00:19:49] Speaker 02: We do not disagree that national security and protecting national security is a compelling interest. [00:19:55] Speaker 02: We do not disagree that a court should give substantial deference to the executive's determination of the national security. [00:20:03] Speaker 02: But the government in this case is asking this court to do what no other court has ever done. [00:20:09] Speaker 02: It's asking this court to accept the premise that the executive and the executive alone can determine when court records are sealed and when court proceedings will be closed. [00:20:20] Speaker 02: That would be a fundamental change. [00:20:23] Speaker 04: The government asks a whole series of things to be done as alternatives, and one of them, I take it, is that [00:20:35] Speaker 04: proper for us to consider whether or not the classification was proper, right? [00:20:41] Speaker 04: So there's not a, there are Presidents who are in this band that does not resolve the case standing alone. [00:20:49] Speaker 02: Sure. [00:20:49] Speaker 04: Because I understand that. [00:20:51] Speaker 02: Exactly. [00:20:51] Speaker 02: So I really do think that the fundamental dispute probably between the interveners and the government is what the proper standard is. [00:20:58] Speaker 02: Because just to back up, you know, our position is that what the district court did here was apply well-settled precedent. [00:21:05] Speaker 02: that there is a First Amendment right of access to this proceeding. [00:21:08] Speaker 02: Who owns that First Amendment right? [00:21:11] Speaker 02: I'm sorry? [00:21:11] Speaker 03: Who owns that First Amendment right? [00:21:13] Speaker 02: The public owns the First Amendment right, and it's enforceable. [00:21:16] Speaker 03: So that means that in any habeas proceeding from Guantanamo, anyone in the United States can intervene in that proceeding to get classified information. [00:21:28] Speaker 02: Well, it's not just the press, it's everybody. [00:21:30] Speaker 02: I believe that the Supreme Court was very clear in Richmond newspapers. [00:21:34] Speaker 02: If you look at the Richmond newspapers case and the Gannett case, which was decided the year before, they said under the Sixth Amendment, there is no public right of access. [00:21:44] Speaker 02: That's a personal right to the defendant. [00:21:46] Speaker 02: And under Richmond newspapers, they said there is a public right. [00:21:49] Speaker 02: And it's an enforceable, affirmative right. [00:21:51] Speaker 02: It was a watershed case. [00:21:53] Speaker 02: It was the first time the Supreme Court said [00:21:55] Speaker 02: that the public could come in and enforce this right of access. [00:21:58] Speaker 02: And that's one of the fundamental mistakes, misconceptions in the government's position. [00:22:02] Speaker 02: When they quote this language saying the First Amendment is not a Freedom of Information Act, we don't dispute that. [00:22:08] Speaker 02: Those cases deal with access to information in the hands of the government. [00:22:12] Speaker 02: And the Supreme Court has never said that the public can come in and compel the executive branch to turn over information in its possessions. [00:22:19] Speaker 02: Things are fundamentally different when information is brought to a court where there is a constitutional right. [00:22:25] Speaker 02: It goes back centuries. [00:22:27] Speaker 02: You know, Jeremy Bentham in the 18th century said... It doesn't go back in habeas corpus. [00:22:33] Speaker 03: Correct. [00:22:33] Speaker 03: In habeas corpus, at least according to Nixon versus Warner communications, the only [00:22:40] Speaker 03: party person who could come in and get access to documents is someone who had a proprietary interest in those documents. [00:22:48] Speaker 03: What do you do with that? [00:22:49] Speaker 02: Well, there are a couple of things I'd say that I think you may be over-reading that a bit, because in ex parte Mulligan, 1866 habeas case, the court is very clear that the records were available on a public record. [00:22:59] Speaker 02: So I'm not sure the history is all that clear. [00:23:01] Speaker 03: That may be, but I'm talking about the writ as it existed in 1789. [00:23:06] Speaker 02: And I would submit that that's not the proper way to look at the First Amendment right of access. [00:23:10] Speaker 02: And I think the reason we know that is from Press Enterprise 2. [00:23:14] Speaker 02: In that case, the Supreme Court had the question before of does this right of access that we've now said applies to trials because they've been conducted publicly forever and it serves the function. [00:23:24] Speaker 03: Criminal trials. [00:23:25] Speaker 02: Criminal trials. [00:23:26] Speaker 02: Does it apply to pretrial proceedings? [00:23:29] Speaker 02: And the court had a problem there because there was no centuries of access to pretrial proceedings. [00:23:34] Speaker 02: Most of the proceedings that were issued in that case were things that developed in the last 20 or 30 years because of rulings by the Supreme Court about procedural rights that criminals have. [00:23:43] Speaker 02: And what the court said there is we don't need this whole history because we can look at the experience. [00:23:48] Speaker 02: Every state that has adopted these pretrial proceedings has done them openly. [00:23:51] Speaker 03: To borrow from the last case. [00:23:54] Speaker 03: The Supreme Court said that the pretrial proceedings in a criminal case were the functional equivalent of a criminal trial, right? [00:24:04] Speaker 02: Sure. [00:24:04] Speaker 02: And what we're talking about here is a civil proceeding. [00:24:09] Speaker 02: We're talking about evidence admitted into the record of a civil proceeding. [00:24:12] Speaker 02: Now, it's quite right that the Supreme Court has only addressed this in the criminal context. [00:24:16] Speaker 02: Every circuit that has addressed this issue has said the same right applies in the civil context and indeed the Supreme Court went out of its way in Richmond to make clear that they didn't see a distinction between civil and criminal. [00:24:27] Speaker 03: We had a case today where part of the record was sealed as it is here. [00:24:31] Speaker 03: That means that somebody can come, anybody can come in and [00:24:36] Speaker 03: demand that the this is my first amendment right I want to see all the unsealed or all the sealed stuff. [00:24:41] Speaker 02: There certainly is that potential. [00:24:43] Speaker 02: I do agree Judge that there are certain standing requirements that courts have imposed. [00:24:48] Speaker 02: Clearly the press has standing and there might be circumstances where there would be a standing issue. [00:24:53] Speaker 02: Do you really have a unique harm? [00:24:55] Speaker 02: I don't think that's an issue in this case. [00:24:57] Speaker 03: If you take FOIA as an analogy, everybody has standing. [00:25:00] Speaker 02: Sure and I think that's probably a good analogy. [00:25:02] Speaker 02: I mean it would depend on a fact specific [00:25:05] Speaker 02: question, but it is a public right. [00:25:07] Speaker 02: It's a substantially different right than FOIA. [00:25:09] Speaker 02: FOIA is a statutory right, and you only have the right to what Congress said you can get. [00:25:13] Speaker 02: And what Congress said in this area is you can only get things that are not properly classified. [00:25:17] Speaker 02: So that's, to go back to Judge Williams' question, that's the standard in a FOIA case. [00:25:22] Speaker 03: That's a different question. [00:25:23] Speaker 03: You were talking about standing. [00:25:26] Speaker 03: Everybody has standing under FOIA. [00:25:28] Speaker 02: Yes, I agree. [00:25:28] Speaker 03: You don't have to show that I need this document or that it's going to help me or anything. [00:25:34] Speaker 03: I want the document. [00:25:35] Speaker 02: I agree. [00:25:37] Speaker 02: I was moving back to Judge Williams' question. [00:25:39] Speaker 04: I mean, if something is a right of the public. [00:25:41] Speaker 04: I'm sorry, Judge, I have a little trouble hearing you. [00:25:42] Speaker 04: If something is a right in the public, as you point out, the Supreme Court said of this right, then it's hard to see how there's any more standing requirement than to be a member of the public. [00:25:56] Speaker 02: I perhaps shouldn't have gone down that rat hole. [00:25:58] Speaker 02: It's not an issue in this case. [00:25:59] Speaker 02: There is no question of standing. [00:26:01] Speaker 02: The government hasn't raised it. [00:26:03] Speaker 02: It has been discussed in some of the court cases, but there's no issue here. [00:26:07] Speaker 02: And it is, in fact, a public right. [00:26:09] Speaker 02: So I want to just go back. [00:26:10] Speaker 04: So- It does raise questions of the hazards of broad reading. [00:26:14] Speaker 04: I'm sorry, Judge, I didn't- It raises a question about the hazards of a broad reading of press enterprise. [00:26:22] Speaker 02: Well, I think Press Enterprise is very clear in what the reading is, what the holding of that case is. [00:26:28] Speaker 02: The very specific holding of that case, which is very relevant here, was that a state statute in California that said a pretrial proceeding could be closed on a reasonable likelihood that open proceedings would violate the defendant's fair trial rights or jeopardize the fair trial rights failed to satisfy the First Amendment standard. [00:26:49] Speaker 02: That was the specific holding. [00:26:51] Speaker 02: It said reasonable likelihood is not sufficiently protective of the constitutional access right because of the importance of that right, the criticality of public access to courts. [00:27:01] Speaker 03: Florida has a statute that protects the identity of a rape victim in a criminal case. [00:27:08] Speaker 03: In fact, it protects the identity of a rape victim in a criminal case. [00:27:14] Speaker 03: And there's a Supreme Court case where [00:27:16] Speaker 03: where just by negligence, the police in the press room laid a piece of paper down and some cub reporter got it and published the name of a rape victim. [00:27:27] Speaker 03: That's neither here nor there. [00:27:29] Speaker 03: But under your theory, then, if there's a rape case and the Florida law is applied to protect the identity of the victim, [00:27:38] Speaker 03: the press or any individual can come in and force that identity to be disclosed to the public? [00:27:45] Speaker 02: Absolutely not. [00:27:46] Speaker 02: That is absolutely not our position, Judge. [00:27:48] Speaker 02: Our position is that the First Amendment right of access applies. [00:27:51] Speaker 02: It's a qualified right. [00:27:53] Speaker 02: There is a standard that has to be met. [00:27:54] Speaker 02: The standard is there at compelling interest. [00:27:56] Speaker 02: But the government fundamentally misunderstands. [00:27:59] Speaker 03: The identity of the rape victim is a compelling interest, but the national security is not? [00:28:04] Speaker 02: No, national security is, very often. [00:28:07] Speaker 02: We do not disagree with that proposition. [00:28:09] Speaker 02: We need to understand it's very important that the proper standards get applied, because what the government is arguing for here is to take classified information and say, well, we're not going to apply the First Amendment here. [00:28:19] Speaker 02: It just doesn't make sense in terms of the rights that the Supreme Court has said the public has. [00:28:24] Speaker 02: You know, there are things that can be sealed. [00:28:26] Speaker 02: A corporation's trade secrets can be sealed in a court record. [00:28:29] Speaker 02: the identity of an undercover police informer can be sealed. [00:28:32] Speaker 02: There are compelling interests to do that. [00:28:34] Speaker 02: But what the Supreme Court has said is because there is this constitutional access right, a judge must decide on a case-by-case basis if the interest exists. [00:28:42] Speaker 02: So in a trade secret case, if they say, we need this sealed, the judge has to say, well, is this really a trade secret or is it already public? [00:28:48] Speaker 02: If it's already public, I'm not going to seal it. [00:28:51] Speaker 02: All that Judge Kessler did in this case was apply that same standard [00:28:55] Speaker 02: to the government's claim that something needed to be kept secret because it was national security. [00:29:01] Speaker 05: In a hypothetical, if program A is classified by the government, and in this type of proceeding, [00:29:24] Speaker 05: that occurred here, there is evidence that Program A has, in fact, been made available by the government to the public. [00:29:42] Speaker 05: The classification may have occurred in year one. [00:29:45] Speaker 05: It is now year 20. [00:29:48] Speaker 05: And I'm thinking of the Reynolds case as sort of an analogy here where time passes and the government's interests may change. [00:29:56] Speaker 05: That's one scenario. [00:29:57] Speaker 05: The other scenario is program A is classified. [00:30:01] Speaker 05: Program A has been released to the public, but the government's position is that program A still should remain classified. [00:30:16] Speaker 05: I need to understand what your understanding is of what is the standard a district court is to apply in that circumstance, assuming for purposes of this hypothetical that we're in the third alternative presented by the government's brief. [00:30:34] Speaker 02: or something that's still classified. [00:30:36] Speaker 02: The standard to be applied, we would submit, is the press enterprise standard. [00:30:40] Speaker 02: It raises the same question. [00:30:41] Speaker 02: The standard is, has the government shown that there is a compelling interest that requires secrecy? [00:30:48] Speaker 02: That's the standard. [00:30:49] Speaker 02: The fact that it's classified. [00:30:51] Speaker 05: But what I'm trying to get at is this whole notion of Egan, this whole notion of national security, this whole notion of expertise. [00:30:59] Speaker 02: Absolutely. [00:31:01] Speaker 02: And what the district court did here, which we think is entirely appropriate, is the district court said, number one, national security, of course, can be [00:31:09] Speaker 02: a compelling interest. [00:31:11] Speaker 02: I need to apply the First Amendment standard, not whether it's properly classified, but the First Amendment compelling interest standard, and I must give proper deference to the executive. [00:31:20] Speaker 02: Well, how do we do that? [00:31:21] Speaker 02: We know how you do that because this Court has said how that gets done in the FOIA context. [00:31:25] Speaker 02: It says that when the government is making national security assessments, the level of deference is built into the standard by saying, all that a judge may properly ask for is, has the government given us a logical and plausible basis to believe that it's properly classified? [00:31:41] Speaker 02: So what Judge Kessler did is said, has the government given me a logical and plausible basis to believe there is a compelling threat to national security? [00:31:50] Speaker 02: And she said, based on everything that's public, [00:31:53] Speaker 02: all that's been known, videos that are available on the internet, they haven't shown me any grounds to meet the First Amendment standard. [00:32:03] Speaker 05: Now, I can think of a number of responses to the point I'm about to ask you, but in the correctional context, the Supreme Court and the lower courts have deferred very heavily to the opinion of the correctional official. [00:32:21] Speaker 05: as to what is likely to cause a problem. [00:32:25] Speaker 05: All right. [00:32:25] Speaker 05: And I mean, the Supreme Court, I think Chief Justice Rehnquist's writings, we're just not going to look at this. [00:32:32] Speaker 05: These people are responsible for maintaining the discipline, the conduct within the facility. [00:32:39] Speaker 05: And so why doesn't that approach apply in this context? [00:32:44] Speaker 05: I understand this is national security, so there's a much greater governmental interest and interest to all of us at stake, but I just want to understand that aspect of the case and why that isn't sort of relevant. [00:33:00] Speaker 02: I think it is relevant, and in fact, Judge, I think that's completely consistent with what the District Court Judge did here. [00:33:05] Speaker 02: Of course you give deference to the statements of those experts. [00:33:10] Speaker 02: The question she asks is have they given me a logical and plausible reason? [00:33:14] Speaker 02: It's the same thing this Court has done in other cases. [00:33:17] Speaker 02: I think it was the Campbell case under FOIA where they said, you know, this affidavit just doesn't cut it. [00:33:21] Speaker 02: It doesn't make any, it does not establish that something has been properly classified. [00:33:25] Speaker 02: Now Campbell, you sent it back and said you get another chance. [00:33:27] Speaker 02: But what the district court judge here did is said on the factual record, it doesn't make sense. [00:33:32] Speaker 02: And I just want to, I want to go back to Judge Williams' questions because I really think this was at the heart of it. [00:33:36] Speaker 02: Why is it the First Amendment, the press enterprise standard and not the properly classified? [00:33:41] Speaker 02: Shouldn't we just say is it properly classified and that's the end of it? [00:33:44] Speaker 02: And the answer to that is the standard for classification at the lowest level [00:33:48] Speaker 02: basically just says, is there a reasonable expectation that some harm could happen? [00:33:53] Speaker 04: You know, it almost is... Serious damage. [00:33:56] Speaker 02: Damage to national security, but just some reasonable expectation of some sort of harm. [00:34:00] Speaker 02: It's almost an invitation to speculate. [00:34:03] Speaker 02: And what the First Amendment requires is more than that. [00:34:06] Speaker 02: That's what the teaching of Press Enterprise 2 was. [00:34:09] Speaker 04: Well, I'm glad you raised this, because the Press Enterprise 2 speaks of a requirement of specific findings, sure. [00:34:17] Speaker 04: demonstrating that there is a substantial probability that the interest in question will be prejudiced. [00:34:23] Speaker 04: Interest in question is my substitute for what was actually an issue there. [00:34:28] Speaker 04: So, prejudice itself is a variable term. [00:34:35] Speaker 04: It could be prejudiced extremely or prejudiced at the margin, and substantial probability is an elastic term. [00:34:45] Speaker 04: Substantial probability [00:34:47] Speaker 04: It could mean more than 50 percent. [00:34:50] Speaker 04: It could mean less than 50 percent. [00:34:53] Speaker 04: And if the interest to be prejudiced is particularly valuable, you might expect that substantial probability might be at the lower end of probability. [00:35:04] Speaker 04: So I guess this is a question I first asked Government Council. [00:35:09] Speaker 04: Is there that big a gulf between the two standards? [00:35:12] Speaker 04: And like your position on that, you're asserting that there is. [00:35:16] Speaker 02: You agree with her on that proposition. [00:35:19] Speaker 02: There needs to be a demonstration that's logical and plausible. [00:35:22] Speaker 02: It doesn't have to be one the district court agrees with, but there has to be a logical basis in the affidavits that are presented to believe that there is a substantial probability of harm. [00:35:31] Speaker 02: This is very like McGee. [00:35:31] Speaker 02: I mean, McGee. [00:35:34] Speaker 02: Judge Wald's opinion in McGee. [00:35:36] Speaker 02: McGee made that same argument. [00:35:38] Speaker 02: I mean, it applied that test, although it applied it in the context of saying whether it was logical that it was properly classified. [00:35:46] Speaker 02: And it was different that that was the proper standard there because McGee had signed a contract agreeing that he wouldn't publish anything that was classified. [00:35:55] Speaker 02: So there was not a First Amendment question there. [00:35:57] Speaker 02: It was a classification question. [00:35:58] Speaker 04: But the court went out of its way to find a First Amendment interest [00:36:04] Speaker 04: at stake and operating to affect its review of this issue. [00:36:12] Speaker 04: Isn't that true? [00:36:13] Speaker 04: There's a lot of talk in that case about the First Amendment. [00:36:16] Speaker 02: Sure, and there are First Amendment rights at stake because he wanted to speak. [00:36:20] Speaker 02: But I think that the ultimate standard that was applied, whether it's properly classified, was appropriate because of his contractual commitment to the CIA that he would not publish classified information. [00:36:33] Speaker 02: The issue presented to the court was, are they saying stuff is classified that's not? [00:36:38] Speaker 02: in a way that's censoring me. [00:36:39] Speaker 02: So the issue was, have they properly classified this? [00:36:42] Speaker 02: It's a fundamentally different issue here, which is exactly the issue that was presented to the Supreme Court, to the Fourth Circuit in In re Washington Post. [00:36:50] Speaker 02: This is not an unprecedented rule. [00:36:53] Speaker 02: This is the exact holding of In re Washington Post that in these circumstances where there's a claim of classification, the district court is obligated to apply the First Amendment standard. [00:37:02] Speaker 02: It was applied again in Pelton. [00:37:04] Speaker 02: in the District of Maryland, where the government wanted to play classified information only to the jury, and the press said, well, we're going to be watching this trial. [00:37:12] Speaker 02: We can't hear it. [00:37:13] Speaker 02: And the judge said, well, I'm going to let them hear it in the first instance, and then we'll do a redacted transcript applying the First Amendment standard. [00:37:20] Speaker 02: It's the proper approach. [00:37:23] Speaker 02: I just note, too, that if the government were right, if all they had to show that something was properly classified in order to seal a transcript or close a proceeding, [00:37:33] Speaker 02: then Congress didn't need to do all that he did in SIPA in identifying what would happen in a criminal trial when classified information is there. [00:37:41] Speaker 02: SIPA was a very detailed look at the situation by Congress, and it has a number of sections that deal with pre-trial disclosure, okay, but it has provisions that very specifically deal with what should a court do if a judge determines that classified information is material and necessary at a criminal trial. [00:38:00] Speaker 02: It says there are three options. [00:38:02] Speaker 02: The government can declassify it and we avoid the issue. [00:38:05] Speaker 02: It can be introduced without the government's objection, in which case it comes in even though it's classified. [00:38:11] Speaker 02: or if the government objects, the government has an obligation to come up with an alternative or it gets sanctioned. [00:38:18] Speaker 02: It didn't say, well, if it's properly classified, we're just going to seal the proceeding. [00:38:22] Speaker 02: It recognized that there's a higher- I hate to say this, but- I'm sorry, Judge. [00:38:26] Speaker 04: I hate to say this, but is it not possible that the interest in not convicting people who are innocent is ranked above the press enterprise right? [00:38:40] Speaker 02: I think they're both constitutional rights. [00:38:42] Speaker 02: The public's constitution covers a wide range. [00:38:47] Speaker 02: We could go around on that, but the importance of public access to trials cannot be overstated. [00:38:55] Speaker 02: It's what gives courts legitimacy in our country. [00:38:59] Speaker 02: To sacrifice that, to say anytime there's classified information, we're going to have closed proceedings, without an independent determination by the judge that there is a need for closure, that's all that judge-counselor required. [00:39:10] Speaker 02: a low-level deferential showing by the government that secrecy was needed. [00:39:16] Speaker 02: And that's the minimum that should be required before we throw away this tradition of openness that is essential to the courts. [00:39:25] Speaker 02: That was the holding of the Fourth Circuit, as I said. [00:39:27] Speaker 02: This Court has recognized, too, that the classification standard isn't appropriate in circumstances way back in the 1970s in the case called Halpern v. Kissinger that's cited in our brief. [00:39:38] Speaker 02: It dealt with different issues. [00:39:39] Speaker 02: It had to do with illegal wiretapping. [00:39:43] Speaker 02: But it said in passing, you know, [00:39:45] Speaker 02: We recognize as a court that we cannot automatically accept that the public disclosure of information that is marked top secret will necessarily or automatically cause problems to national security. [00:39:57] Speaker 02: Courts have a role when information is brought to them to make an independent determination that this constitutional right is overcome. [00:40:05] Speaker 02: And if I could just briefly turn, I know I'm over my time, but to the abuse of discretion, [00:40:10] Speaker 02: In our brief, we lay out all of the public information and all the reasons why the judge found that they hadn't logically shown. [00:40:16] Speaker 02: I just want to address briefly the heckler's veto because I think once again the government in advancing this potential for propaganda is asking this court to open a door that the court has not gone down before, even in FOIA cases. [00:40:31] Speaker 04: I think that that relates only to one of the interests that the government asserts. [00:40:38] Speaker 02: I'm sorry, I didn't hear you. [00:40:40] Speaker 02: I apologize. [00:40:41] Speaker 04: Whatever the strength of your point there, it relates to only one of the interests, the national security interests that the government speaks of. [00:40:51] Speaker 02: The propaganda? [00:40:52] Speaker 02: Right. [00:40:53] Speaker 02: Yes. [00:40:54] Speaker 02: Yeah. [00:40:54] Speaker 02: But what they're asking you to do is to say, look, because of a generalized concern that people abroad might react adversely, we should deny the American people the right to see this information. [00:41:06] Speaker 02: There's a number of problems with that. [00:41:07] Speaker 02: One is it has no limiting principle. [00:41:09] Speaker 02: It's open-ended. [00:41:11] Speaker 02: It invites a ceiling of information. [00:41:13] Speaker 02: And in fact, under the government's rationale, the more objectionable the government's conduct, the more outraged people are likely to be, the more likely it is to be secret. [00:41:22] Speaker 02: That can't be right. [00:41:23] Speaker 02: Even in the FOIA case, this Court has not accepted that as a proper grounds to keep information out. [00:41:29] Speaker 02: It has specifically said that where First Amendment rights are at issue, we need to consider other things. [00:41:38] Speaker 02: But just think, this is not just a slippery slope. [00:41:40] Speaker 02: This is like the roller coaster slight clone. [00:41:43] Speaker 02: They're asking you to go down in terms of how it would change the way courts operate. [00:41:49] Speaker 02: the criminal, the civil litigation against the Los Angeles police arising out of the beating of Rodney King. [00:41:56] Speaker 02: Imagine a scenario where that videotape hadn't already been made public and the court was presented with a request to seal because it could say to a high degree of probability that if you release that videotape there would be riots in Los Angeles. [00:42:08] Speaker 02: Are we going to seal that? [00:42:09] Speaker 02: Are we going to go to secret proceedings on that type of a speculative harm? [00:42:14] Speaker 02: We don't allow that and it shouldn't, it's [00:42:16] Speaker 03: The classification system is far different than that, and it's talking about national security, and it has a long pedigree. [00:42:24] Speaker 03: As a matter of fact, the first instance of the refusal to turn over documents was George Washington's refusal to give Congress the notes that led to the Jay Treaty. [00:42:39] Speaker 03: which started the executive privilege thing. [00:42:42] Speaker 03: So I don't see that Rodney King has much of anything to do with that. [00:42:47] Speaker 02: My only point, Judge, is that if we're going to say, as the government argues, that information that could cause a harm outside of the courtroom is grounds to seal it, that's a very risky road to take. [00:42:59] Speaker 02: And think about the nature of the affidavits here, which I think that Judge Kessler-Praplikin took into account. [00:43:06] Speaker 02: Compared to the affidavits that this court had just recently in the ACLU case against the government involving the drones, they had affidavits that very specifically said, I looked at every single photograph that is the subject of this request. [00:43:19] Speaker 02: It made specific explanations about why the release of those photographs could cause harm, that it could reveal the type of technology we use for facial recognition, that it could allow people to determine the specific SEALs groups that were involved in these operations. [00:43:35] Speaker 02: And based on that kind of very specific concern, the court said under FOIA it couldn't be disclosed. [00:43:41] Speaker 02: The district court here applied that same approach and said that they're applying this very deferential standard that there was no logical basis presented in the materials submitted by the court. [00:43:54] Speaker 02: Why this? [00:43:54] Speaker 02: And if there ever was a case where the public should be entitled to see this sort of record evidence, it's here. [00:44:01] Speaker 02: This is a case involving the treatment in the judicial system of detainees being held at Guantanamo. [00:44:09] Speaker 02: And as Judge Kessler said, it is of utmost importance that the public understand that these proceedings are being done fairly. [00:44:15] Speaker 02: And Judge Kessler understood deference. [00:44:17] Speaker 02: She turned down the preliminary injunction. [00:44:19] Speaker 02: She deferred to the government and said, this is not illegal. [00:44:22] Speaker 02: But then she turned around and said, but the American people have the right to know the basis on which this decision has been made, and they have the right to know what is happening here. [00:44:34] Speaker 02: This is a case where the decision is clearly appropriate. [00:44:38] Speaker 02: I think the government is concerned that just they didn't meet the standard, and they're asking this court to throw out the standard because they didn't meet it, and that would be fundamentally improper. [00:44:48] Speaker 05: Thank you. [00:44:49] Speaker 05: All right. [00:44:51] Speaker 05: Council for Appellant. [00:44:55] Speaker 01: Judge Kessler here did not review the classification determination for whether it was logical and plausible. [00:45:05] Speaker 01: The decision made clear she was reviewing it for whether there was a substantial probability of harm, which requires more than the classified classification standard under the executive order, which requires a reasonable expectation of serious damage for secret items. [00:45:20] Speaker 01: I think in terms of the case that's more applicable here than Press Enterprise is the McGeehee case that Judge Williams cited. [00:45:29] Speaker 01: That's because that case specifically dealt with the separation of powers problem between the First Amendment and classified information. [00:45:38] Speaker 01: In that case, the court still applied the determination of whether the information had been properly classified. [00:45:45] Speaker 01: That was a case where the individual actually [00:45:48] Speaker 01: had the, it was a pre-publication review case where the individual actually had the information in their hands, so the court recognized that they had even greater First Amendment rights, but still recognized that given the executive's prerogative to classify information, it should just be reviewed for proper classification. [00:46:06] Speaker 03: If Press Enterprise... Is it true that because the attorneys for the interveners [00:46:14] Speaker 03: Do not have security clearances that they've never seen any videos? [00:46:18] Speaker 03: That's correct, Your Honor. [00:46:20] Speaker 01: If the press enterprise standard would apply, it would turn a lot of this court's precedence on its head and just frankly not make a lot of sense. [00:46:28] Speaker 01: The public would have a right to, it would mean the public would have a right to access classified information that this court has held up parties that the government can rightfully withhold from parties to a case. [00:46:39] Speaker 05: Well, in a practical matter, you'd have to file a motion to intervene. [00:46:44] Speaker 05: Right? [00:46:44] Speaker 05: First of all, court would have to grant it. [00:46:47] Speaker 05: Then you'd have to describe the nature of the interest. [00:46:54] Speaker 05: I mean, I don't see this necessarily the way you describe it in your brief. [00:46:59] Speaker 05: It's sort of an open sesame type situation. [00:47:04] Speaker 01: Well, I think, Your Honor, those [00:47:06] Speaker 01: filing a motion to intervene and professing an interest in national security standards or what goes in like the terrorism designation cases, those where this court has held that classified information doesn't need to be shared with the parties to the case, but yet the public would... What I'm thinking of, when I read your brief or read the government's brief, I thought, well, this reminds me where we were with Guantanamo [00:47:31] Speaker 05: and the Department of Justice's position that there was no role for the court to play. [00:47:36] Speaker 05: And the Supreme Court had to say, no, there is a role for the court to play and set out what it was. [00:47:43] Speaker 05: And then we've had this dialogue between this court and the Supreme Court over the years in this area. [00:47:51] Speaker 05: And that's why I wanted to focus you on your third alternative, just to understand [00:47:58] Speaker 05: what the concern is in that context. [00:48:05] Speaker 05: It's almost that you don't trust judges, not you personally, but you don't trust the judicial branch. [00:48:14] Speaker 05: And of course, Congress has already decided that question by passing statutes [00:48:21] Speaker 05: that give jurisdiction to the courts to decide certain questions. [00:48:28] Speaker 05: So that's sort of water over the dam. [00:48:31] Speaker 05: And presumably the right of appeal, the right to seek stays, the right to challenge, et cetera, apparently in our three branch system was viewed as circumstances where [00:48:49] Speaker 05: courts can effectively protect national security and the notion that the courts are just going to open the floodgates. [00:48:58] Speaker 05: I mean, I don't think we have to decide that issue here, but I appreciate [00:49:04] Speaker 05: the questions about how broadly do you write. [00:49:07] Speaker 05: And so your first argument is the very broadest holding of this court. [00:49:12] Speaker 05: And that took me back to Hamdy, all right? [00:49:15] Speaker 05: Because that's where the government was on an Article I commander-in-chief argument initially, as far as Guantanamo and the detainees. [00:49:24] Speaker 05: a lot of water over the dam, so we're much further down the road. [00:49:28] Speaker 05: So then I looked at the second argument you made to see, well, you're saying this is an open question. [00:49:35] Speaker 05: The Supreme Court has never decided whether press enterprises applies in this context, whether that's the right standard to apply, nor has this court. [00:49:46] Speaker 05: And then you say, but even so, [00:49:49] Speaker 05: even given all the mistakes we think that are here, we still prevail. [00:49:54] Speaker 05: And I thought, well, that's the narrowest holding, isn't it? [00:49:58] Speaker 01: Yes, Your Honor, that is. [00:50:01] Speaker 01: And I think it's clear from the declarations here that the government has laid out its national security concerns. [00:50:07] Speaker 01: And whether that's reviewed by this court for kind of a logical and plausible or properly classified information, [00:50:15] Speaker 01: The government here has met that standard and the video should not be disclosed, but even I think we've met even a substantial probability of harm, even if that were the standard to be applied. [00:50:26] Speaker 01: Just a few more points. [00:50:29] Speaker 01: Interveners raised SIPA. [00:50:30] Speaker 01: Of course, that only applies in the criminal proceedings, but even in SIPA, they acknowledge that you can't order the executive to disclose classified information. [00:50:38] Speaker 01: The government always has an out in that it has the choice of dismissing the case. [00:50:44] Speaker 01: And on the propagandist concern, the national security concern there, it's not just propaganda. [00:50:51] Speaker 01: It's that these videos can directly be used to incite violence. [00:50:55] Speaker 05: Is it that the government can dismiss the case or the government can decide to proceed without the evidence? [00:51:01] Speaker 01: It has both choices, Your Honor, but it could, if it was... I thought it had to get the court's permission to dismiss. [00:51:06] Speaker 05: At any rate, move on. [00:51:09] Speaker 01: It may, Your Honor, but there's a choice there. [00:51:13] Speaker 05: Oh, no choice here is your point. [00:51:16] Speaker 01: Right, exactly, Your Honor. [00:51:17] Speaker 01: And the concern that these videos could be used to directly incite violence, this court accepted that risk of harm in the judicial watch case, also the Second Circuit in the Center for Constitutional Rights case. [00:51:33] Speaker 01: So that is not a novel proposition, and it's certainly a concern that our troops would directly be in danger abroad is certainly a valid national security harm that the government can rely on. [00:51:47] Speaker 05: there are no further questions thank you we'll take the case under advisement