UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

IN RE: GUANTANAM O BAY DETAINEE LITIG ATION Misc. No. 08-0442 (TFH) Civil Act ion Nos. 02- cv- 0828 , 04- cv- 1136 , 04- cv- 1164 , 04- cv- 1194 , 04- cv- 1254 , 04- cv- 1937 , 04- cv- 2022 , 04- cv- 2046 , 04- cv- 2215 , 05- cv- 0023 , 05- cv- 0247 , 05- cv- 0270 , 05- cv- 0280 , 05- cv- 0329 , 05- cv- 0359 , 05- cv- 0392 , 05- cv- 0492 , 05- cv- 0520 , 05- cv- 0526 , 05- cv- 0569 , 05- cv- 0634 , 05- cv- 0748 , 05- cv- 0763 , 05- cv- 0764 , 05- cv- 0877 , 05- cv- 0883 , 05- cv- 0889 , 05- cv- 0892 , 05- cv- 0993 , 05- cv- 0994 , 05- cv- 0999 , 05- cv- 1048 , 05- cv- 1124 , 05- cv- 1189 , 05- cv- 1220 , 05- cv- 1244 , 05- cv- 1347 , 05- cv- 1353 , 05- cv- 1429 , 05- cv- 1457 , 05- cv- 1487 , 05- cv- 1490 , 05- cv- 1497 , 05- cv- 1504 , 05- cv- 1506 , 05- cv- 1555 , 05- cv- 1592 , 05- cv- 1601 , 05- cv- 1607 , 05- cv- 1623 , 05- cv- 1638 , 05- cv- 1645 , 05- cv- 1646 , 05- cv- 1678 , 05- cv- 1971 , 05- cv- 1983 , 05- cv- 2088 , 05- cv- 2104 , 05- cv- 2185 , 05- cv- 2186 , 05- cv- 2199 , 05- cv- 2249 , 05- cv- 2349 , 05- cv- 2367 , 05- cv- 2371 , 05- cv- 2378 , 05- cv- 2379 , 05- cv- 2380 , 05- cv- 2384 , 05- cv- 2385 , 05- cv- 2386 , 05- cv- 2387 , 05- cv- 2479 , 06- cv- 1668 , 06- cv- 1684 , 06- cv- 1690 , 06- cv- 1758 , 06- cv- 1761 , 06- cv- 1765 , 06- cv- 1766 , 06- cv- 1767 , 07- cv- 1710 , 07- cv- 2337 , 07- cv- 2338 , 08- cv- 0987 , 08- cv- 1101 , 08- cv- 1153 , 08- cv- 1207 , 08- cv- 1221 , 08- cv- 1224 , 08- cv- 1228 , 08- cv- 1230 , 08- cv- 1232 , 08- cv- 1233 , 08- cv- 1235 , 08- cv- 1236 , 08- cv- 1237 , 08- cv- 1238 , 08- cv- 1360 , 08- cv- 1440 , 08- cv- 1789 , 08- cv- 1805 , 08- cv- 1828 , 08- cv- 1923 , 08- cv- 2019 , 08- cv- 2083 , 09- cv- 0745 MEMORAN DUM OPINION P ending befor e the C our t is the gover nment’s M otion to C onfir m D esignation of U nclassified F actua l Retur ns as “ P r otected. ” T he gover nment seeks to seal ever y unclassified fac tual r etur n disclosed in the above- captioned case s. P etitioner s r espond that the gover nment’s br oad r equest usur ps the C our t’s discr etion to seal judicial r ecor ds. M ultiple pr ess or ganizations, having been gr anted a r ight to inter vene for the limit ed pur pose of opposing the motion, aver that the gover nment’s r equest violates the public’s r ight to acc ess judicial r ecor ds under the F ir st Amendment and common law. U pon consider ation of the motion, petitioner s’ opposition, the pr ess’s opposition, and the gover nment’s r eplies, the C our tdenies the motion without pr ejudice.

I. Factual Background T asked by the S upr eme C our t with balanc ing the gover nment’s “ inter est in pr otecting

sour ces and methods of intelligence gather ing” against a detainee ’s need “ to find or pr esent evidenc e to challenge the Gover nment’s case against him, ” Boumedie ne v. Bush , 128 S

. C t. 2229, 2269, 2276 (2008), the C our t implemented a P r otective Or der gover ning the stor age, handling and contr ol of documents and infor mation in the case s of detainee s at the U nited S tates N aval B ase in Guantana mo B ay, C uba (“ Guantana mo B ay” ). T he P r otective Or der

cover s both classified and unclassified infor mation. Recognizing that some unclassified 1 infor mation, if publicly disclosed, may pose a thr eat to national secur ity, the P r otective Or der per mits the gover nment to ask the C our t to designate unclassified infor mation as “ pr otected, ” ther eby shielding such infor mation fr om the public. See S eptember 11, 2008, P r otective Or der and P r ocedur es for C ounsel Acc ess to D etainee s at the U nited S tates N aval B ase in Guantana mo B ay, C uba (D kt. N o. 409, 08-mc-0442) (“ P r otective Or der ” ) ¶ 35. T he P r otective Or der instr ucts that the ultimate decision to deem infor mation pr otected is left to the C our t: S hould gover nm en t counsel in these consolidated case s wish to have the C our t deem any document or infor mation “ pr otected, ” gover nment counsel shall disclose the infor mation to quali fi ed counsel for petitioner s— i. e. , counsel who have satisfied the nece ssar y pr er equisites of this P r otective Or der for the v i ewing of pr otected infor mation—

and attempt to r eac h an agr eeme nt about the designation of the infor mation pr ior to filing a motion with the C our t. P etitioner s’ counsel shall tr eat such disclosed infor mation as pr otected unless and until the C our t r ules that

The Protec tive Orde r def ines “c lassified information” is as “any classified doc ument or 1 information that was c lassified by any Ex ecutive B ranc h ag ency in the interests of national secur ity or pursua nt to Ex ecutive O rder .” Protec tive Orde r ¶ 8a. 2the infor mation should not be designated as pr otected.

P r otective Or der ¶ 34. F ollowing this pr ocedur e, on D ece mber 29, 2008, the gover nment filed a motion

r equesting that the C our t “ confir m designation of the U nclassified F actua l Retur ns ser ved on petitioner s’ counsel” thr ough Januar y as pr otected. Respondents’ M otion to C onfir m D esignation of U nclassified F actua l Retur ns as “ P r otected” (D kt. N o. 1416, 08-mc-0442) (“ Gov’t M ot. ” ). T he gover nment has subsequently filed identical motions to pr otect ever y unclassified fac tual r etur n filed afte r Januar y in the above- captioned case s. T he unclassified 2

r etur ns ar e the unclassified ver sions of the classified fac tual r etur ns, which contain “ the fac tual basis upon which [the gover nment] is detaining the petitioner

. ” Case Mana g ement Or der ( Dkt. No. 940, 08-mc- 0442) (Nov. 6, 2008) 1. Acc or ding to the gover nment, due to the expedited pace of the r eview to develop unclassified r etur ns, “ inadver tent er r or s” wer e made

— in other

wor ds, classified infor mation was r elea sed in the unclassified r etur ns. Gov’t M ot. 6-8. C omplicating matter s, the gover nment is unawa r e of how much classified infor mation is contained in the unclassified r etur ns. T he gover nment str esses that its conce r n is the “ totality” of the classified infor mation that would be publicly disclosed, as opposed to the r isk of disclosing any specific document. Id. at 6. T he gover nment r equests that the C our t designate the r etur ns pr otected until it can “ pr oduce ver sions of the r etur ns that may be publicly disclosed. ” Id. at 2. T he motion does not pr ovide a date as to when such ver sions will be

To the Court’s knowledg e, the g overnme nt filed a motion to confirm the de signation of 2 unclassified f

actua l returns a s protecte d in ever y case wher e it provided a

n unclassified f

actua l return to a

petitioner’s c ounsel. See, e .g. , In re Guantanamo Bay Detainee Liti g. , M isc. N o. 08-0442 (T F H ) (D kt. N os. 1416, 1426, 1677). This memorandum opinion and a ccompa ny ing order cover all such motions in cases consolidate d for pur poses of c oordination and mana g ement in Misc. No. 08-0442. 3pr oduced. P ur suant to the C our t’s D ece mber 30, 2009 M inute Or der , petitioner s filed a consolidated opposition to the gover nment’s motion on Januar y 7, 2009. P etitioner s char acte r ize the gover nment’s motion as a r equest for a “ blanket designation” of the unclassified r etur ns as pr otected. See P etitioner s’ Opposition to Respondents’ M otion to C onfir m D esignation of U nclassified F actua l Retur ns as “ P r otected” (“ P et’r s Opp. ” ) 2. T he D

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. C ir cuit, petitioner s claim, has denied simil ar blanket gover nment r equests to pr otect unclassified infor mation. Id. While the gover nment’s motion was pending, on Januar y 14, 2009, the Associated P r ess, N ew Yor k T imes C ompany, and U S A T oday (collec tively “ pr ess inter venor s” or

“ pr ess” ) filed a motion to inter vene for the limit ed pur pose of opposing the gover nment’s motion. Indepe ndent of petitioner s’ objections, the pr ess claim that the F ir st Amendment and

common law aff

or d the public a qualified r ight of acc ess to the unclassified fac tual r etur ns. On M ar ch 26, 2009, the C our t held a motions hear ing on the gover nment’s motion and the pr ess’s motion to inter vene. T he C our t hear d or al ar gument fr om the gover nment, petitioner s, and the pr ess. With r espec t to the pr ess’s motion to inter vene, the D

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. C ir cuit has liber ally inter pr eted F ed. R. C iv. P

. 24 to per mit thir d par ties to per missively inter vene

“ for the limit ed pur pose of seeking acc ess to mater ials that have been shielded fr om public view either by seal or by pr otective or der

. ” E.E.O.C. v. Nat’l Children’s Ctr. Inc. , 146 F.3d 1042, 1046 (D.C. Cir. 1998); see also In re Vitamins Antit rust Li tig. , 2001 WL 34088808, at *2 (D.D.C. Mar . 19, 2001) (Hog an, J.). For re asons set for th during the hea

ring , on April 2, 2009, the Court g rante d by

Minute Order

the pre ss’s motion, permitti ng them to intervene for the limit ed purpose of opposing the g overnme nt’s motion before this Court.

4H aving gr anted the pr ess a limit ed r ight to inter vene in this matter , the C our t’s decision

on the gover nment’s motion must addr ess both petitioner s’ opposition and that of the pr ess. As explained below, the C our t conclude s that both par ties’ oppositions ar e mer itor ious.

II. Court Discre tion to Seal J udi cial Rec ords T he D

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. C ir cuit has twice consider ed and denied gover nment attempts to br oadly designate as pr otected unclassified infor mation on detainee s at Guantana mo B ay. B efor e the C our t can gr ant a motion to pr otect unclassified infor mation, the gover nment must identify by line the infor mation it seeks to pr otect. The D.C. Circuit first consider ed a g overnme nt attempt to designate unclassifie d information as prote cted in Bismullah v. Gates, 501 F.3d 178, 187- 88 (D.C. Cir. 2007), vacate d 128 S.Ct . 2960 (2008), reinstated , Orde r, No. 06-1197 ( D.C. Cir. Aug . 22, 2008), petitions dismissed for lack of jurisdiction , 551 F.3d 1068 ( D.C. Cir. 2009). I n Bismullah , the D.C. 3 Circuit entere d a prote ctive orde r to assist with its revie w of the Combatant Status Review Tribunal (CSRT) ene my

combatant de terminations. The g overnme nt proposed that it be permitted to unilatera lly

deter mine whether

unclassified infor

mation is protected, a

nd there fore kept under

seal. Id. at 188. I n reje cting the g overnme nt’s proposal, the Circuit instructed that It i s the court, not the Gove rnment, that has discretion to seal a judicial record, which the public ordinarily has the right to inspect and copy . There fore , insofar as a party seeks to file with the co u r t n onclassified information the Gover nment believes should be ‘p ro t ec ted,’ the Gover nment must g ive t he court a basis for withholdi ng The D.C. Circuit subsequently dismiss ed the pe titions in Bismullah for lac k of 3 jurisdiction in li g ht of Boumedie ne . Howeve r, the D.C. Circuit did not overrule its decision with respe ct to proce dures f

or handling classified a

nd unclassified infor

mation for the de tainees at Guantana mo Ba y , and initially

reinstated those proce dures f ollowing Boumedie ne . Bismullah v. Gates , 551 F.3d 1068, 1070 ( D.C. Cir. 2009). There fore , this Court wil l follow the D.C. Circuit’s g uidance in Bismullah with respec t to handling suc h information. 5it from public view.

Id. (citations omitted) (empha sis added). Following the D.C. Circuit’s opinion in Bismullah , the g overnme nt filed a motion to desig nate two c ateg ories of unc lassified information as protecte d: the names of United States 4 g overnme nt personnel a

nd any “L aw Enf

orce ment Sensitive” information. Parhat v. Gates, 532 F.3d 834, 851- 52 (D.C. Cir. 2008). The g overnme nt arg ued that disclosingthe names of 5 g overnme nt personnel c ould jeopardize their sa fety , and disclosing “L aw Enf orce ment Sensitive” information could har

m the g lobal war

on terror ism. Id. The D.C. Circuit denied the g overnme nt’s motion, in Parhat v. Gates , admonishing that 6 its request wa s overly

broad. A s the Circuit expl ained, the g overnme nt “re lies solely on spare , g ener ic asser

tions of the need to pr otect information in the two categ ories it identifies. The g overnme nt does not ‘g ive the cour t a basis for w ithholding’ that is spec ific to the information it has desig nated in this case .” Id. at 852-53 (c iting Bismullah , 501 F.3d at 188). Wit hout an “explanation tailored to the spec ific information at issue,” the Circuit continued, it had “ no way

The Circuit’s prote ctive orde r, which mirr ors this Court’s Protective Orde r, def ined 4 “prote cted infor

mation” as “ any

. . . information dee med by the cour t, either upon a

pplication by the Gover nment or sua sponte, to re quire spec ial prec autions in storag e, handling , and contr ol, in order to protect the se curity

of the United States Gove rnment per sonnel or fa cilities, or other signific ant g overnme nt interests.” Bismullah , 501 F.3d at 196. The orde r direc ts the g overnme nt to “apply to the court to dee m any

information ‘prote cted.’ . . . Such information must be maintained under

seal unless a

nd until the court deter

mines the information should not be desig nated a s ‘protec ted.’” Id. at 201. Resembling its broa d reque st in the instant case, the g overnme nt filed motions to 5 desig nate a s protecte d these two c ateg ories of infor mation in “over one hundred pe nding [Detainee Tr eatment Ac t] case s.” Parhat , 532 F.3d 834 at 852. The D.C. Circuit’s dec ision in Parhat with respec t to handling c lassified and 6 unclassified infor

mation has not been ove rruled, a nd will be followed by

this Court. See supra n.3. 6to determine w hether [t he information] war

rants prote ctions – other than to ac cept the g overnme nt’s own desig nation,” which w ould usurp the Circuit’s discre tion to seal a judicial

rec ord. Id. at 853. Thoug h acc epting that there are names of g overnme nt personnel a nd “L aw Enforc ement Sensitive” infor mation that should be sealed, the Circuit clarifie d that some of the information was publicly

available and ther efor e did not war rant “ protec ted status.” Id. Neve rtheless, the Circ uit denied the motion with prejudice, a llowing the g overnme nt another opportunity

to seal the infor

mation. The g overnme nt was direc ted to file, within thirty day s, a

rene wed motion acc ompanied by a mar ked copy of the de tainee’ s CSR T rec ord indicating for which information the gove rnment soug ht protecte d status. Id. During the pende ncy of the

rene wed motion, the conteste d information was to re main under se al. Id. Dra wing on these pre cede nts, the Court finds that the g overnme nt has ag ain fa iled to provide a court with a suf

ficient “ basis for withholding ” the unc lassified information in these

case s. The D.C. Circuit in Parhat was une quivocal that re quests to desig nate infor mation as protec ted re quire spec ificity . The g overnme nt’s motion is devoid of spec ificity . Indeed, the g overnme nt pleads with eve n g rea ter g ener ality

then it did in Parhat , reque sting that a ll information in the re turns be sea led instead of just two categ ories of infor mation. The g overnme nt warns that disclosingthe unclassifie d returns c ould “pose a threa t to the security

of the United States.” G ov’t Mot. 8. The Court does not see how such a “spar e, g ener ic asser

tion” differ s from the a ssertion reje cted by the D.C. Circuit – that disclosing “ L aw Enf orce ment Sensitive” information could ha rm the g lobal war

on terror ism. Parhat , 532 F.3d a t 852. At a minimum , the spec ificity

require d by

the D.C. Circuit prec ludes the g overnme nt from see king to desig nate a s protecte d information that is alrea dy in the public domain. See id. at 853. Yet the g overnme nt conce des that some information in the unclassified re turns has alre ady been

7disclosed to the public. See Reply by Respondents in Support of Motion to C onfirm Desig nation of Unc lassified F actua l Returns as “Protec ted” ( Dkt. No. 1503, 08-mc- 0442) (“ Gov’t Reply ”) 4. Although unper suaded by the gover nment’s r equest, the C our t is also not convince d that the gover nment’s failur e to plead with specific ity mandates that it immediately identify specific infor mation to pr otect or r elea se the unclassified r etur ns, as petitioner s demand. P etitioner s do not contest that the unclassified r etur ns may contain classified infor mation. Abiding by the S upr eme C our t’s dir ective in Boumedie ne to acc ommodate the gover nment’s

“ legitimate inter est in pr otecting sour ces and methods of intelligence gather ing” to the

“ gr eate st extent possible, ” Boumedie ne , 128 S

. C t. at 2276, the C our t exer cises its discr etion to pr ovide the gover nment with sufficie nt time to r eview the r etur ns to pr event the dissemination of classified infor mation. In choosing a deadline for the public filing of the fac tual r etur ns in the above- captioned case s, the C our t acc epts the gover nment’s claim that dedicating r esour ces to decla ssify ever y unclassified fac tual r etur n would impede mor e pr essing classification

7

r equests in these habea s pr ocee dings. F or example, the gover nment r epr esents that “the

resour ces r equire d for pr oduction of uncla ssified versions of the fac tual returns a re the same

resour ces r equire d for pr oduction of newfac tual returns.” Gov’t Mot. 7. Of cour se, since the gover nment has filed ever y classified fac tual r etur n r equir ed by the C our t and all but a few of the r equir ed unclassified r etur ns, the gover nment now has gr eate r r esour ces available to complete a decla ssification r eview of the r etur ns. T he C our t’s decision is also influence d by the fac t that petitioner s will not be har med if public disclosur e of the fac tual r etur ns is delaye d. T hough the unclassified r etur ns have been

Acc ording to the g overnme nt, a re view to dec lassify the fa ctual re turns would better 7 ensure that the re turns do not contain classifie d materia ls. Gov’t Mot. 4 n.8. 8pr esumptively pr otected dur ing the pendenc y of the motion, the gover nment has per mitted

petitioner s to have acc ess to them. P otential witnesses and exper ts for petitioner s have also had acc ess to the unclassified r etur ns, pr ovided they signed and r etur ned the Acknowle dgment. P etitioner s posit that some witnesses may be dissuaded fr om par ticipating 8 in the case due to logisti cal difficulties r ece iving or signing the Acknowle dgment or fea r fr om subjecting themselves to the author ity of the U nited S tates. P et’r s Opp. 10. T he C our t r ejec ts any asser tion that, in this advanc ed technologica l age, petitioner s cannot excha nge documents with potential witnesses. T he C our t also fails to see how r equir ing thir d par ties to sign the Acknowle dgment, and thus agr ee “ not to use or disclose any pr otected infor mation or documents, ” har ms petitioner s. T o the contr ar y, ensur ing thir d-par ty compliance with the

9 P r otective Or der allows those thir d par ties assisting petitioner s to handle sensitive infor mation while acc ommodating the gover nment’s “ legitimate inter est” in pr otecting such infor mation. With these consider ations in mind, the C our t elec ts to follow the appr oach cr afte d in Parhat. See Parhat , 532 F.3d at 853. Acc or dingly, the gover nment’s motion is denied without pr ejudice. On or befor e July 29, 2009, for eac h petitioner in the above- captioned

case s, the gover nment is dir ecte d to either (i) publicly file a decla ssified or unclassified

1 0

The Protec tive Orde r manda tes that petitioners’ c ounsel sign a n Acknowle dg ment form 8 in order to ha

ve ac cess to prote cted infor mation. The Ac knowledg ment states that the undersig ned ag ree s to be bound by the terms of the Protective Or der a nd “not to use or disclose any protec ted information or doc uments.” Protective O rder , Ex h. B. Protective Or der, Exh. B. 9 This opinion and acc ompanying or der do not a pply to petitions t hat ar e stayed or to a ny 1 0 petitioner who c onsented to the motion. The g overnme nt repre sents that petitioner Tar iq Mahmoud Alsawa

m (I SN 535), Civil Action No. 05-1244 (CKK), a g ree d to the desig nation of his unclassified fa ctual re turn as prote cted. Gov’ t Reply 1 n.1. 9fac tual r etur n or (ii) file under seal with the petitioner ’s counsel and the appr opr iate M er its 1 1 Judge an unclassified fac tual r etur n highlig hting with a c olored mar ker the exact words or lines the g overnme nt seeks to be de emed pr otected, a s well as a me morandum explaining why eac h word or line should be protec ted. I f the g overnme nt chooses to file a highlig hted fa ctual re turn 1 2 under se al, the par

ties must first meet and conf er pur suant to L ocal Rule of Civil Procedur e 7(m); if an a g ree ment cannot be rea ched, the g overnme nt must file with the appropriate Merits J udg e a motion to designate as protec ted ea ch hig hlighted por tion of the retur

n. Until J uly

29, 2009, the unclassified f

actua l returns a

re to re main protec ted, except that ea ch petitioner sha ll have ac cess to the unclassified f

actua l return pe rtaining to himself, and counse l may disclose the uncla ssified fac tual return to the pe titioner’s witnesses and e x perts who have sig ned the Ac knowledg ment. I f the g overnme nt does not file an unpr otected or highlig hted fa ctual re turn for a petitioner by

J uly 29, 2009, that petitioner’s unc lassified fa ctual re turn will be treated as unprote cted, unless the appropr iate Mer its J udg e rule s to the contrar y . I n case s in which the g overnme nt has not y et provided pe titioner’s counsel with an unc lassified fa ctual re turn, the g overnme nt shall comply with this opi nion within si x ty day s of the date on which the g overnme nt provides the uncla ssified return.

“An ‘ unclassified’ return is one in which all classifie d information has be en re dacte d.

1 1 These ha ve bee n prepa

red a s a pre liminary

measure to provide information to the detainees a s quickly as possible. A ‘de classified’ return is one in which forme rly classified infor

mation has been de termined by

authorized dec lassification off icials to no longe r re quire sec urity classification.” Gov’t Mot. 4 n.8. Guiding the Court’s decision is J udg e Joy ce H ens Gre en’s or der r egar ding a 1 2 gover nment motion to designate as pr otected all unclassified mater ial contained in the fac tual r etur ns pur suant to the pr evious protec tive order that g overne d these ha

beas c orpus proc eeding s. J udg e Gr een, w ho authore d that protec tive order , instr ucted the gover nment to “ highlight[] with a color ed mar ker the exac t wor ds or infor mation in eac h fac tual r etur n the r espondents seek to be deeme d ‘pr otected. ’” Or der (D kt. N o. 138, 02-cv- 0299) (D ec. 8, 2004). 10III. Right of Publ ic Acc ess to J udi cial Rec ords Press intervenor s arg

ue that both the F irst Amendment and c ommon law aff ord the public a qualifie d rig ht to acce ss the unclassified f actua l returns filed in these habea s proce eding s. T heir under lying claim, that the public has a r ight to acc ess filings in habea s pr ocee dings, is a matter of fir st impr ession in this C ir cuit. F or the r easons that follow, the C our t agr ees with pr ess inter venor s. A. First Ame ndment The F irst Amendment protec ts public acc ess to court re cords a nd proce eding s if the cour t deter mines that such ac cess ( i) has historically been a vailable a nd (ii) “play s a sig nificant positive role in the func tioning of the particula r proc ess in question.” Press-Enterprise Co. v. Supe rior Court , 478 U.S. 1, 8-9 (1986) ( “Press-Enterprise I I ”). B oth of these que stions “must be

answe red a ffirmatively

befor e a c onstitut ional require ment of ac cess c an be imposed.” In re Reporters Comm. for Free dom of the Press , 773 F.2d 1325, 1332 ( D.C. Cir. 1985). The rig ht of

acc ess is qualified, howe ver. I f a c ourt deter mines that there is a

First Amendme nt rig ht of ac cess to cer tain documents, the g overnme nt may overc ome that rig ht by

demonstrating “an ove rriding interest base d on finding s that closure is esse ntial to preser ve hig her va lues and is nar rowly tailored to ser

ve that intere st.” Press-Enterprise Co. v. Supe rior Court , 464 U.S. 501, 510 (1984) (“ Press-Enterprise I

”). A. H istor ic Availability of P ublic Acc ess P r ess inter venor s seek acc ess to documents filed in habea s pr ocee dings. As evidenc ed by the filings of both the pr ess and the gover nment, the case law is ber eft of analysis r egar ding

11whether public acc ess to habea s pr ocee dings has histor ically been available

. Although it 1 3 appea r s that no C ir cuit has addr essed the question with r espec t to habea s pr ocee dings specific ally, multipl e C ir cuits have analyz ed the question with r espec t to civil pr ocee dings gener ally. A petition for a wr it of habea s cor pus is a civil pr ocee ding. See, e. g. , F ay v. Noia , 372 U

. S

. 391, 423 (1963) (commenting that a wr it of habea s cor pus is a “ civil r emedy for the enfor ceme nt of the r ight to per sonal liber ty, r ather than” a cr iminal pr ocee ding). In navigating these F ir st Amendment water s, the C our t will ther efor e follow the dir ection pr ovided by the C ir cuits with r espec t to civil pr ocee dings. T he D

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. C ir cuit has neither r ecogniz ed nor r ejec ted that the F ir st Amendment aff or ds the public a r ight of acc ess to civil pr ocee dings. T he gover nment inter pr ets the D

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. C ir cuit’s silence as a denial of the r ight. Quoting Ctr. for Nat’l Sec. Studies v. U. S. Dep’ t of Justice , the gover nment ar gues that the D

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. C ir cuit has never “ indicated that it would apply the [First Amendment rig ht-of-public- acc ess] test to any thing other

than cr iminal judicial procee dings.” 331 F.3d 918, 935 ( D.C. Cir. 2003). In Ctr. for Nat’l Sec. Studies , howeve r , the thir d par ty

was not seeking acc ess to judicial r ecor ds in civil pr ocee dings; r ather , it sought D epar tment of Justice investigation infor mation on individuals detained for immigr ation violations. 331 F

. 3d at 934-35 (holding that the F ir st Amendment r ight of public acc ess “ does not extend to nonjudicial documents” compiled dur ing an E xecutive B r anch investigation). T he C our t is

unawa r e of any D

. C

. C ir cuit opinion holding that ther e is no F ir st Amendment r ight to acc ess

Press interver

nors cite to two district cour t opinions t hat ostensibly rec og nize a rig ht of 1 3 acc ess to habea s proce eding s. Osband v. Ay ers , 2007 WL 3096113, at *2-3 (E .D. Cal. Oct. 22, 2007); Ramirez v. Attorney Gen. of the State of New Y ork, 1999 WL 1059966, at *1-2 (S.D.N.Y

. Nov. 22, 1999). B oth opinions l ack substantive a naly sis on the First Amendment r ight- of-publicacc ess test and do not addr ess whethe r there has bee n a history of such a cce ss. Notably , neither the pre ss nor the g overnme nt cites to a sing le Circuit opinion addressing the issue of a cce ss in habea s case s. 12documents in civil pr ocee dings. While the D

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. C ir cuit has been silent on the issue, other C ir cuits have opined and unifor mly held that the public has a F ir st Amendment r ight of acc ess to civil pr ocee dings and

r ecor ds. See Lugosch v . Pyramid Co. , 435 F.3d 110, 124- 27 (2d Cir. 2006) (holding that the First Amendme nt secure s for the public a nd the pre ss a rig ht of ac cess to civil proc eeding s); Publicke r Indus., Inc. v . Cohen , 733 F.2d 1059, 1067- 70 (3d Cir. 1984) (“ the public and pr ess possess a F irst Amendment . . . rig ht of ac cess to civil proc eeding s”); Rushford v. New Y ork Magazine , 846 F.2d 249, 253 ( 4th Cir. 1988) (“We believe that the more r igor ous First Amendment standa

rd should also apply

to documents filed in conne ction with a summary judgme nt motion i n a civil ca se.”) ; Brown & W illiamson T

obacco Corp. v. F

TC , 710 F.2d 1175, 1178-79 (6th Cir. 1983) (“ [t ]he historical support for a cce ss to criminal trials applies in equal

measure to civil trials”); In re Cont’l Ill. Sec . Liti g. , 732 F.2d 1302, 1308 ( 7th Cir. 1984) (“the policy rea sons for g ranting public acc ess to criminal proc eeding s apply to civil cases a s well”); see also Nat’l Assoc. of W aterfront Employers v. Chao , 587 F. Supp. 2d 90, 98 (D.D .C. 2008) (Colly er, J.) (“Courts have found a le g itimate public interest in acc ess to civil trials as well.”)

. Acc ording to these Circuits, “[t] he public’s r ight of acc ess to civil trials and re cords is as we ll established as that of criminal proc eeding s and re cords.” Publicke r , 733 F.2d at 1066. A tradition of public ac cess to civil trials ca n be tra ced thr oug hout our leg al history – from Eng lish common law to the Amer ican c olonies to J ustice Oliver Wende ll Holmes. See id. at 1068-1070; Gannett Co. v. De

Pasquale , 443 U.S. 368, 386 n.16 (1979) (Stewa rt, J .) (“ E nglish commentator s also assumed that the common-law r ule was that the public could attend civil and cr iminal tr ials without distingui shing betwee n the two. T he exper ience in the Amer ican C olonies was analogous. F r om the beginning, the nor m was open tr ials. ” ) (citations omitted); Cowley v.

13Pulsifer , 137 M ass. 392, 394 (M ass. 1884) (H olmes, J. ) (“ [i]t is desir able that the tr ial of

[civil] cause s should take place under the public eye” ). T he S upr eme C our t has also signaled that the public has a r ight of acc ess to civil pr ocee dings. In the seminal case Richmond Newspapers Inc. v. Virginia , the S upr eme C our t held that the F ir st Amendment guar antee s the public a r ight of acc ess to cr iminal tr ials. 448 U

. S

. 555, 580 (1980). T hough the question of acc ess to civil tr ials was not r aised in the case , the C our t noted “ that histor ically both civil and cr iminal tr ials have been pr esumptively open. ” Id. at 580 n. 17. Justice P otter S tewar t, concur r ing, decla r ed that “ the F ir st and F our teenth Amendments clea

r ly give the pr ess and the public a r ight of acc ess to tr ials themselves, civil as well as cr iminal. ” Id. at 599. T he consensus of the C ir cuits is that ther e has been a histor y of public acc ess to civil pr ocee dings. T he S upr eme C our t has r ecogniz ed such a histor y, albeit in dicta. In acc or d with the opinions of these appellate cour ts, the C our t conclude s that acc ess to habea s pr ocee dings has been histor ically available

. B

. S ignificant P ositive Role of P ublic Acc ess T he C our t is also convince d that “ public acc ess plays a sig nificant positive role in the functioning ” of the se habe as proc eeding s. See Press-Enterprise I I , 478 U.S. at 8. I n g ener al, opening the judicial proc ess ensure s actua l fairne ss as well as the a ppear ance of fa irness. PressEnterprise I

, 464 U.S. at 508. I n these proc eeding s, the nee d for ope nness is no less compelling

. The Supreme Court gr anted e ach de tainee a rig ht to petition t his Court for a wr it of habea s corpus in orde r “to de monstrate that he is be ing he ld pursuant to ‘the e rrone ous application or inter

preta tion’ of re levant law.” Boumedie ne , 128 S.Ct . at 2266. Over seven months after the Boumedie ne decision, the Preside nt cre ated a Guantana

mo Review Task F orce

14(“Ta sk Forc e”) to determine the proper dispositi on of ea ch deta inee. Executive Or der N o. 13,492, § 4, 74 Fe d. Reg . 4897 (Jan. 27, 2009). Whi le the deta inees a wait the finding s of the Task F orce , filing a

petition for a wr it of habea s corpus rema ins the only officia l vehicle f

or a detainee to challeng e the g overnme nt’s decision to detain him. These proce eding s thus remain of critica l importance a

nd rele vance . See B oumediene , 128 S.Ct . at 2277 (“ Wit hin the Constit ution’s separation-of-powe rs structure , fewexercises of judicia l power a re a s leg itimate or

as nec essar

y as the re sponsibili ty

to hear challeng es to the authority of the Executive to imprison a per son. Some of these pe titioners have be en in custody for six y ear s with no definitive judicial deter mination as to the leg ality of their de tention. Their ac cess to the wr it is a nece ssity to deter mine the lawf

ulness of their status, eve n if, in the end, they do not obtain the relief

they seek.” ). As for the fac tual returns, the y are fundame ntal to these proc eeding s. The fa ctual re turns detail what the de tainees a re a ccuse d of doing and who they are acc used of be ing. T hey are the basis on which the g overnme nt justi fies ea ch petitioners’ detention. Public interest in Guantanamo Ba y g ener ally and these proce eding s specific ally has bee n

unwave ring . The public’s unde rstanding of the proc eeding s, howeve r, is incomplete without the fac tual returns. Publicly

disclosing the f

actua l returns would e nlighten the citizenry and improve perc eptions of the proc eeding s’ fa irness. Cf. New Y ork Times Co. v. United States , 403 U.S. 713, 728 (1971) ( Stewart, J., concurring ) (obse rving that in the are as of national defe nse and international re lations, “the only eff ective r estraint upon executive policy and powe r . . . may

lie in an enlig htened c itiz enry ”). D isclosing the f

actua l returns to the public would a lso benefit both parties. Gr eate r public ac cess would f acilitate third-pa

rty assistance for pe titioners. The g overnme nt’s detention dec isions would gain the le g itimacy that acc ompanies transpa renc y . 15Although the Court finds that providing the returns to the public w ould play a “sig nificant positive role” in these proce eding s, its conclusion is conditional. First, any positive role would be seve rely

diminis hed if the public g ains ac cess to cla ssified information. At this time, the Court chooses not to question, g ener ally , g overnme nt determinations that providing classified information to the public would ca use ser ious damag e to national sec urity . Second, the be nefits of public ac cess to the r eturns would be te mpere d if providing the re turns to the public interfe res with petitioners’ prose cution of these pe titions . To the extent the g overnme nt’s eff orts to decla ssify the fa ctual re turns for the public pr event it from de classify ing inf ormation for petitioners, providing the re turns to the public will no longer play a positive role in these proce eding s. Such interfe renc e could oc cur if the g overnme nt expends resource s decla ssify ing fac tual returns in c ases whe re pe titioners do not curre ntly need or have not r equeste d unprotec ted returns. Thir d, public acc ess to the re turns would neg atively impact these pr ocee dings if providing the public with acc ess consumes substantial Court re source s. C. Compelling Gove rnment I ntere st Wit h both prong s of the F irst Amendment rig ht-of-public- acc ess test satisfied, the Court conclude s that the public has a F irst Amendment rig ht to acce ss the fac tual returns in these habea s proce eding s. The F irst Amendment rig ht of ac cess, howe ver, is not absolute. See I n re Application of New Y

ork Times Co. for Acce

ss to Certain Sealed Court Records , 585 F. Supp. 2d 83, 90 (D.D.C. 2008). I f the g overnme nt can show that keeping the re turns seale d is “essential to preser ve hig her va lues” a

nd “nar rowly tailored,” then the re turns will remain protec ted. PressEnterprise I

, 464 U.S. at 510; see also In re Application of New Y ork Times , 585 F. Supp. 2d at 90 (“the g overnme nt has the burde n of showing that it has a compe lling intere st in keepingthe materia ls secre t”). In this case, the g overnme nt fails to meet this burden.

16The g overnme nt aver s that disclosing the r eturns to the public “w ould cause damag e to

national sec urity .” Respondents’ Re sponse to Press Applicants’ Motion to I nterve ne (D kt. No. 1567, 08-mc-0442) 7. Certainly protec ting national security is a “hig her va lue.” Prohibiting public acc ess to ever

y document in eve ry

fac tual return, how ever , including inf ormation alre ady in the public domain, is not “essential” to a chieve this int ere st. The circ umstances in the instant

case are distinct from a g overnme nt reque st to protect spec ific cla ssified information. The g overnme nt conce des that it is capable of scr eeningthe re turns to identify classified material that could har m national secur ity

if publicly

rele ased. The ref

ore, it is not essential for the g overnme nt to seal complete ly

ever y return to pr otect national se curity . For this very rea son, the g overnme nt’s reque st is also not narrowly tailored. Not only

does the g overnme nt’s reque st

swee p as broa dly

as possible, but it also fails to commit t o any deadline by

which the unc lassified information will be provided to the public. There fore , the Court finds that under the First Amendme nt the public has a limited rig ht to acc ess the uncla ssified fac tual returns in these habea s proce eding s. In light of the Court’s decision with respe ct to petitioners’ opposition, this finding only aff ects fa ctual re turns for a

few petitioners. I n such ca ses, the pre ss may file, on or a fter Septe mber 29, 2009, a motion before 1 4 the appr opriate Me rits J udg e re questing an unprote cted f actua l return. The g overnme nt must

1 5 then either

(i) publicly file a decla ssified or unclassified fac tual r etur n for the petitioner or (ii) file under seal with the appr opr iate M er its Judge an unclassified fac tual r etur n for the pe titioner highlig hting with a c olored mar ker the exact words or lines the g overnme nt seeks to be de emed

For example, petitioners who have chosen or later c hoose not to seek a n unprotec ted 1 4 fac tual return. At this ti me, the pre ss may not file such a motion to acc ess the fa ctual re turns of 1 5 petitioners whose pe titions are stay ed. 17protec ted, as we ll as a memora ndum expl aining why

eac h word or line should be protec ted. I f the g overnme nt chooses to file a highlig hted fa ctual re turn under se al, the appr opriate Me rits J udg e will deter

mine whether

to desig nate e ach hig hlighted por tion of the retur

n as protec ted. I n

case s in which the g overnme nt has not y et provided pe titioner’s counsel with an unc lassified fac tual return, the press may file such a

motion any

time after

120 day s have pa ssed since the date on which the g overnme nt provides the uncla ssified retur n. The Court believe s this four-month delay will obviate any

conce rns about the public’ s exercise of its limited right inter fer ing w ith the petitioners’ prose cution of their pe titions

.

B. Common Law I n addition to its conclusions that pre ss intervenors pr evail under the Fir st Amendment, the Court finds in the alternative that the pre ss preva il under the c ommon law. 1 6 The c ommon law rig ht of ac cess to judicial proc eeding s is “larg ely controlled by

the second of the Fir st Amendment criter ia” – whe ther a cce ss provides a sig nificant positive role in the func tioning of the proce eding s. El-Saye gh v. United States, 131 F.3d 158, 161 ( D.C. Cir. 1 7

T he C our t r ecogniz es that it is unusual to r ule on the constitutional question when the 1 6 case can be r esolved on common law gr ounds. H oweve r , this is how the D

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. C ir cuit has dir ecte d cour ts to “ pr ocee d when a par ty claims that ther e is both a common law r ight of acc ess and a constitutional r ight of acc ess under the F ir st Amendment. ” In re Application of New York Times , 585 F

. S upp. 2d at 87 n. 3. In a case befor e the D

. C

. C ir cuit involving a claim of acc ess under both theor ies, the C ir cuit only r eac hed the constitutional issue “ beca use of the differ ent and heightened pr otections of acc ess that the fir st amendment pr ovides over common law r ights. ” Wash. Post , 935 F

. 2d at 288 n. 7. I n El-Saye

gh , the D.C. Circuit ref

ers to the “ second of

First Amendme nt criteria ” as 1 7 “the utility

of ac cess a s a mea

ns of assuringpublic monitoring of judicia l or prosec utorial misconduct.” El-Saye

gh, 131 F.3d at 161. The more c ommon standard is the one c ited in this opinion — whether a cce ss play s a positive role in the func tioning of the proce eding

. See, e .g., In re Re porters Committee , 773 F.2d at 1336. The Court discer ns no distinction i n the application or me aning of the two standa rds. I n any

event, the Court’ s conclusion is the same 181997). As discussed supra , this criterion we ighs in the f avor of press interve nors. The issue of what to do with the detaine es at Gua ntanamo B ay

rema ins a source of g rea

t public interest and debate . Providing the public w ith acce ss to the char g es levied a g ainst these deta inees, a s detailed in the fac tual returns, e nsures g rea ter ove rsig ht of the dete ntions and these proc eeding s. As long as public ac cess doe s not come at the e x pense of the litigation intere sts of petitioners or national

secur ity , the Court believes the public has a c ommon law rig ht to acce ss the returns.

IV. Conclusion For the re asons set for

th in this opinion, the gove rnment’s motion is denied without prejudice . The g overnme nt’s motion attempts t o usurp the Court’s discre tion to seal judicial

rec ords. Moreove r, the public ha s a limited First Amendment a nd common law rig ht to acce ss the unclassifie d fac tual returns. F or ea ch petitioner, the g overnme nt must either publicly file a fac tual return or

file under

seal a marke d copy

of the unc lassified fa ctual re turn highlighti ng the specific infor mation for which it seeks pr otected status. An orde r ac companies this memora ndum opinion.

June 1, 2009 / s/ T homas F

. H ogan U nited S tates D istr ict Judge

under e ither standar d. 19