Author: Leah Ferentinos

Leah Ferentinos is the Communications Fellow at the Information Society Project, the Communications Director for the Media Freedom and Information Access Clinic, and an Associate Research Scholar at Yale Law School. She holds a Master's in Law from Penn Law, a Master’s in Communication from the Annenberg School for Communication at the University of Pennsylvania, and a Bachelor's in English Rhetoric and Global Studies from Binghamton University.

Aided by MFIA Clinic, FBI agent’s book on enhanced interrogation rereleased

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Note: A version of this post originally appeared on the Yale Law School’s Media Freedom and Information Access Clinic’s website.

A book by former FBI agent Ali Soufan was rereleased recently and now includes his eyewitness account of the CIA’s harsh interrogation of Guantanamo detainee Abu Zubaydah and the program’s failure in garnering useful information.

Retitled The Black Banners (Declassified): How Torture Derailed the War on Terror After 9/11, Soufan’s book was originally released in 2011, but the CIA made its publisher, W.W. Norton & Company, remove most of its discussion of the CIA’s torture of Zubaydah. The withheld material has now largely been restored thanks to the creative litigation efforts of the Media Freedom & Information Access (MFIA) Clinic and Yale Law School students David Froomkin ’22 and Katrin Marquez ’20. 

MFIA’s client was not, in fact, Soufan himself. Acting on behalf of award-winning documentarian Alex Gibney and former New York Times reporter Ray Bonner, MFIA succeeded in compelling the CIA to lift the restrictions it imposed on Soufan by asserting that the CIA was violating their rights to receive information that Soufan was otherwise willing to share. Gibney and Bonner are currently working on a documentary about Zubaydah and the CIA’s enhanced interrogation program, and wanted to interview Soufan, but he would not talk as long as the CIA restrictions remained in place on that topic.

Soufan was the lead FBI interrogator who questioned suspected al Qaeda leader Zubaydah after he was first taken into U.S. custody. Soufan had questioned many other notorious terrorism suspects over the course of his years with the bureau. He recalls in his book that he managed to obtain useful information from Zubaydah using standard FBI questioning techniques before the CIA took over the interrogation. Soufan has long contended that the CIA’s subsequent use of enhanced interrogation techniques produced no actionable intelligence from Zubaydah.

After leaving the FBI, Soufan wrote a book about his experiences fighting the war on terror but was effectively silenced from telling the whole story by the CIA. For the past nine years, the CIA insisted that nearly the entire chapter about the interrogation of Abu Zubaydah, as well as other sections of the book, could not be published because they disclosed classified information. The book was released to the public with blacked out sections over all of the material to which the CIA objected.

Subsequently, much of what Soufan had written about was made public by a declassified 2014 Senate study on the CIA’s extremely harsh interrogation techniques. Many aspects of these topics were also already published in multiple CIA-approved books written by high ranking CIA officials who were at the helm of orchestrating the enhanced interrogation program. These CIA-approved books included many details about Zubaydah and the enhanced interrogation program that had been removed from Soufan’s book. Yet the CIA still declined to allow Soufan to speak.

The MFIA clinic took on the case after Gibney and Bonner contacted Soufan in connection with their documentary. Frustrated that the CIA was pursuing what Soufan has called a “disinformation campaign” to mislead the public and lawmakers into believing that torture works — Soufan wanted to tell Gibney and Bonner what he observed. But because of the CIA’s classification of his book, he was unable to speak to them, on or off camera.

To address this roadblock, the MFIA clinic went to court on behalf of Gibney and Bonner, asserting that the CIA’s effective gag order on Soufan was infringing upon the journalists’ First Amendment rights. The lawsuit was filed in late 2018 in the Southern District of New York. In response, the government agreed to review Soufan’s book anew, and to reconsider the classification status of the removed material. Through this process of review and negotiations, the CIA agreed to remove most of the redactions, allowing Soufan to describe publicly what he observed during these enhanced interrogations for the first time. This week the largely unsealed book is finally being published in its entirety.

Gibney and Bonner expect to complete their documentary for release next year. Gibney greeted news of the release of Soufan’s unredacted book by tweeting, “This is an important day.” As Bonner explained, “thanks to the Yale Law students, Ali Soufan can now give a full interview and we now have reams of useful documents that you [the MFIA Clinic staff and its law students] were able to get us through FOIA.”

In announcing the release of the unredacted book, Soufan expressed his gratitude for “the amazing team at Yale Law School,” and ultimately told the New York Times that, “if you fight for the truth hard enough, eventually you will win.”

MFIA Clinic prepares amicus brief in Maryland First Amendment case

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Note: A version of this post originally appeared on the Media Freedom & Information Access Clinic website.

The Floyd Abrams Institute for Freedom of Expression at Yale Law School recently filed an amicus brief in the United States Court of Appeals for the Fourth Circuit to support a First Amendment challenge to a Maryland law that prohibits the broadcasting of audio transcripts that the state’s courts routinely make of criminal proceedings.

Section 1-201 of Maryland’s Criminal Procedure Code states that individuals may not “record or broadcast” criminal proceedings. Adopted at the advent of portable television camera technology, the law sought to prevent the televising of ongoing trials. It does not prohibit the Maryland judiciary from making audio transcripts of criminal proceedings, and these are routinely made available for inspection in the public court files. Maryland, however, has recently taken steps to enforce the decades-old law against journalists who have used the publicly available recordings in documentaries and podcasts, including the acclaimed podcast “Serial.”

The Abrams Institute brief, prepared by the Media Freedom & Information Access (MFIA) Clinic at Yale Law School, asserts that a blanket ban on the broadcasting of audio recordings — “made by Maryland trial courts, maintained in public court files, and expressly made available to the public by court rules” — violates a First Amendment right of access that attaches to judicial proceedings and records.

The brief states that the district court failed to enforce the access right based on its misreading of a 1978 Supreme Court ruling in Nixon v. Warner Communications that declined a record company’s request for copies of Oval Office recordings made by President Richard M. Nixon that were used in the criminal prosecution of several of his top aides. The district court read Warner Communications to hold that audio recordings in the official record of a criminal prosecution are subject only to a common law access right, which the Maryland legislature had properly restricted through its broadcast ban.

The brief explains that Warner Communications is not so broad. The Supreme Court concluded that the common-law right of access to the specific judicial records at issue had been abrogated when Congress passed the Presidential Recordings Act shortly after Nixon resigned from office, but the court did not squarely reject a First Amendment right of access to judicial records. That opinion holds more narrowly that the First Amendment confers no access rights on the press “greater than those of any other member of the public.”

Just two years later, in Richmond Newspapers, Inc. v. Virginia (1980), the Court held for the first time that the First Amendment’s express protections — free speech, freedom of the press, and the right to petition the government — carry with them an implied right of public access to certain government proceedings and records. The Supreme Court subsequently held, twice, that this constitutional access right applies to transcripts of proceedings in criminal prosecutions. The amicus brief contends that this constitutional protection extends to Maryland’s audio recordings.

The brief further explains that the Maryland law was intended “to bar cameras from the courtroom and prohibit electronic media coverage of ongoing proceedings.” While protecting the integrity of court proceedings and defendants’ fair trial rights are compelling governmental interests that may justify a ban on broadcasting ongoing proceedings, they do not justify a blanket ban against the dissemination of audio recordings of long-completed prosecutions. At a minimum, the brief contends that the First Amendment requires a case-by-case review before the state can prohibit the broadcasting of an audio transcript of a completed proceeding.

The amicus brief reinforces the primary legal argument advanced by the documentarians pursuing the appeal, who contend that the law constitutes an impermissible restriction on their right to publish true newsworthy information. As the MFIA brief explains, “[t]he affront to the First Amendment is compounded here because Maryland is not prohibiting the publication of just any true newsworthy information,” but rather, “Maryland is prohibiting the dissemination of judicial records that are themselves subject to an affirmative right of public access — a qualified First Amendment right to inspect, copy, and disseminate Maryland’s audio recordings.”

Yale MFIA Clinic to host conference on accountability and the Trump presidency

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The Media Freedom and Information Access (MFIA) Clinic at Yale Law School will host its annual Access and Accountability Conference on October 4–5, 2019. This year’s conference will once again bring law school clinicians from around the country together with investigative journalists, academics, practicing lawyers, and law students to explore some of today’s most urgent transparency and accountability issues.

The conference will focus on the laws, policies, and actions that obstruct the ability of journalists and others to ferret out the news needed to hold governments accountable, and to develop litigation strategies and legislative responses to overcome them.

On October 4, expert panels will discuss impediments to investigative newsgathering, law enforcement accountability, algorithmic transparency, and public understanding of issues surrounding national security and the surveillance state. The day will also feature a debate on whether the Freedom of Information Act is serving democracy well, and offer competing views on how governmental institutions and historic practices designed to ensure public accountability are functioning in an era of technological change, “fake news,” and the Trump presidency.

The second day will take a deep dive into accountability issues that might effectively be addressed by law school clinics. The day will begin with a keynote address by Reuters reporter Dan Levine on “The Grim Impact of Judicial Secrecy.” Levine will report the findings of a year-long Reuters investigation into the practices of sealing records and issuing protective orders in federal courts, and the impact of these practices on public health and safety. Breakout panels will consider specific legal strategies to promote access to health and safety information routinely barred from public inspection in civil litigation. Subsequent panels will address steps that law school clinics can take to leverage their resources in aid of local journalists, and actions that might improve access to records under the Freedom of Information Act, including litigation strategies and the development of facts needed to promote a legislative response.

The conference will conclude with a presentation on the launch of the Free Expression Legal Network (FELN), a newly created network of law school clinics, academics, and practitioners (including nonprofits) across the country that seeks to promote and protect free speech, free press, and the flow of information. The network will focus on government accountability, transparency, and freedom of expression to encourage an informed and engaged citizenry. The discussion will highlight the services FELN provides to local journalists and news organizations that lack access to legal resources.

To learn more about the conference visit the registration page.

Yale MFIA Clinic’s stand against ‘secret law’ unseals court opinion

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The Media Freedom and Information Access Clinic (MFIA) at Yale Law School has prevailed in an important skirmish in the ongoing battle against “secret law.”

Acting on behalf of New York Times national security reporter Charlie Savage, MFIA convinced the United States Court of Appeals in Washington, D.C., to make public previously sealed portions of an opinion issued last year in a case filled with many unusual twists and turns.

The issue involved the classified portions of a May 2018 judicial opinion in Doe v. Mattis that the court sealed from public inspection. The redactions were so extensive that it was impossible to determine the court’s basis for rejecting the government’s theories about executive branch power in the case. MFIA argued that providing a ruling while withholding the court’s legal reasoning violates the public’s First Amendment right of access to judicial records.

The reliance on redactions to remove classified facts created a form of secret law because it concealed the legal rule the court used to determine their reasoning in the case, says MFIA legal fellow Charles Crain.

“How can you have a society where people don’t know what the law is?” asked Crain. “The very notion of ‘secret law’ is repugnant to our constitutional form of government and is prohibited by the First Amendment.”

Times reporter Savage had covered the case extensively as it unfolded, and found the court’s redactions troubling. Doe v. Mattis has potentially far-reaching implications for the Fifth Amendment rights of Americans who have dual-citizenship status with another country. The case involved a dual U.S./Saudi citizen who was captured while allegedly fighting for ISIS in a Syrian combat zone and was turned over to the U.S. government, which held him in an Iraqi detention facility for over a year with no charges brought against him.

The case presented many thorny legal issues, including whether the U.S. government could forcibly hand over a U.S. citizen to the custody of another country against his will. The effort by the American Civil Liberties Union (ACLU) to defend the rights of the citizen/detainee, initially referred to as John Doe, itself raised legal issues because the detainee had not asked for their representation. The broader implications of the case concerned the extent of the U.S. government’s national security powers. It raised the question of whether a U.S. citizen caught on the battlefield of a foreign war, for which U.S. involvement had never been approved by Congress, could nonetheless be deemed an enemy combatant. Would he be subject to wartime military punishment, or must he instead be processed through the criminal justice system?

The ACLU initially filed a habeas corpus lawsuit in Washington, D.C. on the detainee’s behalf. After winning court approval to proceed, the government was prevented from transferring the detainee to a Saudi prison. The Court of Appeals agreed with the ACLU that a citizen could not be forcibly handed over to a foreign government against his will with no criminal charges against him pending there.

The Court of Appeals opinion, however, was so heavily redacted that it was entirely unclear why the government’s claim of authority to force the detainee’s transfer was rejected. When most of the classified facts about Doe became public — including his dual U.S./Saudi citizenship, that his real name is Abdulrahman Ahmad Alsheikh, and his eventual release to the nation of Bahrain – MFIA moved to unseal the court’s opinion to prevent the creation of “secret law.”

According to Times reporter Savage, there is real value in revealing the court’s reasoning in this case. Portions of the government’s argument to the appellate court contended that U.S. citizens with dual citizenship have fewer rights than sole-U.S. citizens in certain contexts, and knowing why the court rejected this position may have important implications for future cases. The Doe v. Mattis opinion also may shape the government’s own understanding of its wartime powers. The legal basis for resolving such important issues should not be concealed from the public.

Savage credits “the vision and hard work of the MFIA clinic at Yale Law School” with this success in the fight against secret law.

By Leah Ferentinos