On November 7, 2016—when polls were still predicting a Clinton victory in the next day’s election—MFIA filed its reply brief in Husain v. Gates, the habeas corpus action brought by Guantanamo detainee and CIA torture victim Abu Zubaydah. On behalf of our client, journalist Raymond Bonner, MFIA argued that the government’s excessive redactions of the court records in this case violate the separation of powers and the public’s right of access to judicial records. The government failed to justify these redactions under the applicable constitutional standard, we concluded, so the court should release the records in full.
Personally, I saw this litigation in part as an opportunity for the American government to come clean about its misdeeds in the panicked aftermath of 9/11 and reckon with a dark chapter in our history. Because both President Obama and Congress have banned waterboarding and other forms of torture going forward, I thought the most stomach-turning elements of Zubaydah’s ordeal in U.S. custody would never be repeated.
But the day after we filed our reply, the United States elected Donald Trump as its next president, raising the prospect that this dark chapter in history may become our future. Trump has advocated killing the families of terror suspects, threatened to fill Guantanamo with “bad dudes” (including U.S. citizens), and vowed to bring back torture. “If it doesn’t work,” he told a crowd in Ohio, “they deserve it anyway.” And these statements cannot be dismissed as election-year hyperbole. As far back as 1989, Trump took out a full-page ad in the New York Post to announce that “CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS.” Zubaydah’s torture and indefinite detention by the Bush and Obama administrations may be a prelude to further violations of international and domestic law under a Trump presidency.
I hope not. But if Donald Trump pursues these illegal polices, the public has a right to know. And MFIA’s arguments in Husain v. Gates offer one means for the American people to learn what the government is doing in their name.
The Executive Branch has long claimed authority to withhold information as classified if its disclosure “reasonably could be expected to cause damage to the national security.” (Presidents issue their version of the executive order on classification upon taking office.) As Andy Udelsman has written in this blog, the Executive Branch tends to overuse its classification authority, leading to unchecked secrecy and rampant over-classification—particularly with respect to Guantanamo.
But when the Executive Branch seeks to use classified information in court without disclosing it to the public, the Constitution erects a barrier. This is because, in a line of cases going back to 1980, the Supreme Court has recognized the public’s constitutional right of access to judicial records and opinions under the First Amendment: “The right to speak implies a freedom to listen.” And records that include classified information are not automatically exempt from this access right—nor is the fact of classification automatically sufficient to overcome the right. In order to limit public access to court filings, the government would have to show that releasing the information would cause substantial harm to a compelling interest such as national security—a higher bar than is required to withhold information as classified.
Our client, Raymond Bonner, has documented the government’s extreme secrecy in the Abu Zubaydah case. When MFIA filed its initial motion in April, 36 documents on the public docket were completely sealed, and many others were so riddled with redactions as to effectively bar the public from informing itself about this historic case. Since then, in response to MFIA’s motion to unseal and a court order, the government has made many of these documents publicly available for the first time, including a declaration by Zubaydah describing in detail the torture he endured at the hands of the CIA. Yet the government continues to withhold information in other records in the case with no proper basis, as our reply demonstrates.
In addition to serving as a case study in over-classification, Abu Zubaydah’s habeas case presents a chilling reminder of why Trump’s counter-terrorism proposals should be rejected. According to the Senate Torture Report and court filings, American agents waterboarded Zubaydah at least 83 times, slammed him into walls, hung him from hooks, locked him in a coffin, and shackled him naked in secret dungeons in Thailand and Poland—all on the mistaken premise that Zubaydah was an Al-Qaeda leader with information about future attacks. As the government now concedes, Zubaydah was never even a member of Al-Qaeda. The only result of all that monstrous treatment was a national embarrassment that the government is still trying to keep quiet. When Zubaydah arrived at Guantanamo Bay, George W. Bush was president. How many others will be shipped there, blindfolded and shackled, to suffer in secrecy under President Trump?
—Steven Lance ’18