Cornell law student plays key role in blogger’s defamation defense

Note: A version of this post originally appeared on the Cornell University website.

A decision in a defamation case argued primarily by a Cornell Law School student is one of the first in New York state court to address a legal question spurred by recent legislative changes strengthening free speech protections.

On May 10, a New York Supreme Court judge in Ontario County dismissed a construction company’s defamation lawsuit against James Meaney of Geneva, New York, publisher of the Geneva Believer watchdog blog, who was defended by the Law School’s First Amendment Clinic and co-counsel Michael Grygiel of Greenberg Traurig LLP.

Judge Brian Dennis agreed that amendments approved in November to New York’s so-called “anti-SLAPP” statutes, which seek to deter use of the courts to silence criticism in public matters, should apply to the case retroactively. But he also found that the previous version of the statute would have applied as well, and that Massa Construction Inc. could not meet its statutory burden to show that its claims had a substantial basis in law and fact. Dennis ruled that Meaney’s challenged articles were comprised of true facts and constitutionally protected opinions, rejecting Massa’s theory of defamation by implication and holding that satirical images in the articles were non-actionable.

During a virtual hearing on Dec. 9, 2020, third-year law student Rob Ward led the defense team’s argument for why the amended anti-SLAPP laws – short for Strategic Lawsuits Against Public Participation – should apply retroactively.

State and federal judges have recently reached that conclusion in unrelated cases, but at the time of the hearing no courts had weighed in on the matter.

Ward pointed to legislative history revealing state lawmakers’ intent to clarify the original purpose of statutes enacted in 1992, which was for the statute to apply more broadly than courts have previously interpreted it, and for the amendments to take effect immediately.

“New York has a long history of being at the forefront of expansive definitions of free expression,” Ward said. “This decision helps build on that tradition and will help protect journalists and other citizens trying to make their voices heard in their communities.”

The victory was the First Amendment Clinic’s second on Meaney’s behalf since Massa filed its defamation claim in January 2020. Last June, the same court on First Amendment grounds denied Massa’s request for a temporary restraining order demanding Meaney take down articles reporting on the company’s ties to the Geneva city council, which according to Meaney’s reporting has awarded Massa more than $4 million in contracts since 2010.

Meaney’s articles highlighted potential conflicts of interest involving a city council member who was also a Massa employee, and a former council member whose son worked part-time for both the company and the city. He reported on missing bid records – revealed by his Freedom of Information Law requests – and questioned the rationale for certain projects.

The First Amendment Clinic said the defamation case lacked merit broadly, including the fact that Meaney’s reporting – based on public meetings and public records – was accurate. The company claimed the allegedly defamatory statements implied wrongdoing and corruption – a disfavored legal theory, according to First Amendment Fellow Tyler Valeska.

Meaney’s reporting on and criticism of the city’s spending “is protected at the core of the First Amendment and the New York Constitution as speech on a matter of public concern,” the defense team argued in requesting the case be dismissed.

Valeska was thrilled with the comprehensive victory. He emphasized the court’s conclusion that Meaney would have been protected even under the narrower prior version of New York’s anti-SLAPP law. And he noted. that the amended laws, applied retroactively, made the case a slam dunk. Application of the anti-SLAPP law increased Massa’s burden of proof, facilitated the case’s early dismissal and entitled Meaney to collect attorney’s fees.

The case was part of the First Amendment Clinic’s Local Journalism Project, which supports newsgatherers and media outlets lacking the resources to defend themselves against expensive, potentially frivolous litigation. Associate Director Cortelyou Kenney and a group of students including Michael Mapp were also part of the clinic team handling the case.

“The clinic believes that such threats have a dangerous chilling effect on local journalism and must be fought to ensure that the public receives newsworthy information,” said Mark Jackson, the clinic’s director and adjunct professor of law.

For Ward, helping to shape a novel aspect of state law was a rewarding opportunity, one that is relatively rare for a law student.

“I was grateful to play a role in defending this journalist who, if the clinic weren’t here, might have had to stop publishing,” Ward said. “Getting to not only write on his behalf but to argue before a judge on his behalf was an amazing experience.”

Ward said the skills and courtroom experience gained during his three semesters in the clinic will serve him well in a career that will start in tax law, and that First Amendment issues will remain a passion. Meaney’s challenges in Geneva, a city of 13,000, resonated personally with the native of Broadalbin, New York, a town of 5,000 about an hour northwest of Albany in Fulton County.

“This case hit close to home,” he said. “It was really appealing to me to work with someone who cares about his upstate New York community and is trying to report on it and make it a better place.”

Irvine IPAT Clinic files $100,000 civil rights claim over arrest of journalist

Note: A version of this post originally appeared on the UC Irvine IPAT Clinic’s website. For a previous post about the Clinic’s work in securing the release of the journalist’s cellphone, see here.

The UC Irvine Intellectual Property, Arts, and Technology (IPAT) Clinic filed a $100,000 civil rights claim on March 12 against Los Angeles County, alleging that the Los Angeles County Sheriff’s Department violated a student journalist’s First and Fourth Amendment rights by wrongfully arresting him at a Black Lives Matter protest, confiscating his equipment, and losing his camera memory card containing two years of work.

“We know that the Sheriff’s Department conducted an internal investigation of Pablo Unzueta’s September 8, 2020 arrest after we wrote a letter to Los Angeles County Sheriff Alex Villanueva,” said Professor Susan E. Seager, who directs the Clinic’s Press Freedom and Transparency team. “But the department refused to tell us its findings.”

“The Sheriff’s Department’s arrest, detention, and confiscation of Pablo’s cell phone, camera, and camera memory card violated Pablo’s First Amendment right to report about the news and his Fourth Amendment right to be free from wrongful arrest, excessive force, and seizure of his property,” Seager said.

Unzueta is one of 130 journalists arrested or detained by law enforcement in the United States during 2020, according to the U.S. Press Freedom tracker website.

California law — Penal Code section 409.5(d) — allows “duly authorized” journalists to enter areas closed by police during riots or civil disturbances, but local law enforcement largely ignore the law, Seager said.

Unzueta, a Cal State Long Beach student editor and freelance photojournalist, was arrested while photographing and filming a protest over the killing of a Black cyclist by sheriff’s deputies in South Los Angeles. Unzueta said deputies ignored him when he identified himself as a journalist and arrested him for allegedly failing to disperse after the deputies declared the protest an unlawful assembly. The Los Angeles District Attorney’s Office said that it was not filing criminal charges against any protestors or journalists arrested during the September 8 protest.

Unzueta said deputies took his iPhone and Nikon D800 digital camera during his arrest and did not return his devices after booking and releasing him. Deputies later returned the camera, but not the memory card. It took three months for the department to release Unzueta’s cell phone. Seager said that a department captain told her that he interviewed nearly a dozen deputies about Unzueta’s arrest and no deputies reported seeing the journalist’s camera memory card. Unzueta says that the memory card contains his freelance photos that had been used by the Voice of OC and Washington Post.

Unzueta said that deputies handcuffed him, threw him into the bed of a truck filled with pepper spray balls that exploded upon impact, appeared to film him and other arrestees with the deputies’ personal cell phones, and called him a homophobic slur.

An independent report released this week concluded that the sheriff’s department’s municipal counterpart — the Los Angeles Police Department — severely mishandled Black Lives Matter protests during 2020.

“The entire process was very draining and it took a lot of grit and patience,” said Unzueta. “This case could never have been resolved if it weren’t for the Student Press Law Center and the UCI Law IPAT Clinic, who represent and protect the rights of journalists like myself.”

Unzueta was also represented by Professor Katie Tinto, Director of UCI Law’s Criminal Justice Clinic, who was contacted by the Student Law Press Center to represent Unzueta during a criminal court appearance. Tinto won the release of Unzueta’s camera.

California law requires people seeking damages from state and local government agencies to file an administrative claim with the government agency before going to court.

Irvine IPAT Clinic wins release of student journalist’s cellphone seized by deputies

Note: A version of this post originally appeared on the Irvine IPAT Clinic’s website.

The Intellectual Property, Arts, and Technology (IPAT) Clinic at UC Irvine School of Law scored a victory on December 18 when the Los Angeles County Sheriff’s Department released a student journalist’s iPhone that had been seized by deputies and held for three months. The Clinic’s Press Freedom and Transparency team, directed by Adjunct Professor Susan E. Seager, won the return of the cellphone to Pablo Unzueta, a Cal State Long Beach student editor and freelance journalist.

Deputies seized Unzueta’s iPhone and camera on September 8, 2020, when they arrested him while he was covering a protest over the killing of a Black cyclist by sheriff’s deputies in South Los Angeles. Deputies ignored Unzueta when he identified himself as a journalist and arrested him for allegedly failing to disperse after the deputies declared the protest an unlawful assembly. The Los Angeles District Attorney’s Office said that it was not filing criminal charges against any protestors or journalists arrested during the protest.

“The Sheriff’s Department’s arrest of Pablo and seizure of his camera and cellphone violated Pablo’s First and Fourth Amendment rights,” Professor Seager said. “The seizure of his devices also violated California laws and a federal laws protecting the confidentiality of journalists’ notes and unpublished materials.”

During his arrest, Unzueta said deputies took his iPhone and Nikon D800 digital camera. Deputies returned the camera, but not the memory card. It took three months for the department to release the cellphone. The Clinic is still trying to get the camera memory card back. Unzueta says that the memory card contains two years of work, including freelance photos used by the Voice of OC and Washington Post.

The Clinic wrote a letter to Los Angeles County Sheriff Alex Villanueva stating that Unzueta’s arrest and seizure of his camera and cellphone violated his First and Fourth Amendment rights and California statutes protecting journalists. The sheriff’s department’s inspector general, Max Huntsman, has ordered an internal investigation into the arrest of Unzueta and the seizure of his devices.

Unzueta said that deputies handcuffed him, threw him into the bed of a truck filled with pepper spray balls that exploded upon impact, appeared to film him and other arrestees with the deputies’ personal cellphones, and called him a homophobic slur.

“The entire process was very draining and it took a lot of grit and patience,” said Unzueta. “This case could never have been resolved if it weren’t for the Student Press Law Center and the UCI Law IPAT Clinic, who represent and protect the rights of journalists like myself.”

Unzueta was also represented by Professor Katie Tinto, Director of UCI Law’s Criminal Justice Clinic, who was contacted by the Student Law Press Center to represent Unzueta during a criminal court appearance. Tinto won the release of Unzueta’s camera.

Cornell Clinic files lawsuit in support of Vermont Journalism Trust’s efforts to obtain records

Suit challenges broad ‘litigation exemption’ of state’s public records law

MONTPELIER — Represented by Cornell Law School’s First Amendment Clinic and the ACLU, the Vermont Journalism Trust filed a public records lawsuit October 29 to obtain additional records related to the still unresolved EB-5 scandal. The State of Vermont is again withholding EB-5 records, citing the “litigation exemption” under Vermont’s Public Records Act — an exemption state agencies have relied on repeatedly to prevent public disclosure.  

Heather Murray, Managing Attorney of the Local Journalism Project, Cornell First Amendment Clinic: “Today’s suit aims to bolster VTDigger’s excellent investigative reporting on this major financial fraud by challenging the State’s broad interpretation of the litigation exemption, which may be shielding from the public valuable information about how much the State knew about this fraud prior to taking action.” Associate Clinic Director Cortelyou Kenney and law students Haylei John, Michael Mills, and Brian Marte provided critical assistance in preparing the complaint. 

Since 2012, the Vermont Journalism Trust, operating as VTDigger, has reported on the State’s oversight of the EB-5 Immigrant Investor Visa Program, a federal program designed to create jobs and stimulate foreign capital investment in low-income regions. In August of 2020, VTDigger requested documents from the Agency of Commerce and Community Development (“ACCD”), which operated the Vermont EB-5 Regional Center, to understand why the State continued to endorse the solicitation of investors for EB-5 projects despite increasing evidence of fraud. ACCD denied that request on September 29, resulting in this lawsuit.

Lia Ernst, senior staff attorney, ACLU of Vermont: “The EB-5 scandal shows the need for more transparent and accountable government, and that is exactly what Vermont’s public records law is designed to promote. When the government misapplies that law to keep the public in the dark, our state and our democracy suffer.”

The EB-5 program allows foreign entrepreneurs who make specified financial investments in the United States to apply for lawful permanent resident status. In April 2016, the State and the federal Securities Exchange Commission filed civil suits against several individuals and corporate entities alleged to have misused, in a “Ponzi-like” scheme, more than $200 million of these investor funds marked for projects in Vermont.

Timothy Cornell of Cornell Dolan, P.C., counsel for the Vermont Journalism Trust: “The State of Vermont continues to hide secrets behind narrow exemptions, frustrating the intent and purpose of the state’s public records law. The EB-5 scandal demonstrates the need to reject broad exemptions to public disclosure and do more to increase transparency in government.” This lawsuit is the latest in a series of cases brought by Vermont Journalism Trust in its ongoing investigation of the EB-5 scandal. In 2019, Mr. Cornell, the Cornell First Amendment Clinic, and Tarrant, Gillies, Richardson & Shems LLP represented the Vermont Journalism Trust in similar litigation that resulted in the release of documents the State had previously withheld.  In 2016, the ACLU & Mr. Cornell represented the Vermont Journalism Trust in public records litigation after the State withheld other EB-5 records, claiming that they fell within an exemption for records that “are relevant to litigation to which the public agency is a party of record.” That lawsuit was settled in 2017, after the state finally agreed to release the records. 

Read the complaint here.

Cornell Clinic Analysis: Trump White House NDAs are likely unconstitutional

Note: A version of this post originally appeared on Cornell University’s Cornell Chronicle website.

The nondisclosure agreements (NDAs) that President Donald Trump has required many White House employees to sign — unlike any previous administration — are likely unconstitutional, according to an analysis by Cornell Law School’s First Amendment Clinic.

A civil lawsuit filed Oct. 12 by the Department of Justice — against Stephanie Winston Wolkoff, a former unpaid aide to First Lady Melania Trump and author of a tell-all book — marks the administration’s first attempt to enforce one of the NDAs.

The case exposes an overbroad agreement that infringes on the First Amendment rights of both government employees and the press, representing “a grave affront to our system of free expression,” according to the clinic’s report, “Nondisclosure Agreements in the Trump White House,” released Oct. 20.

“The First Amendment enshrines a collective commitment to vibrant public debate on issues of governance,” the report states. “Allowing the White House to stymie damaging revelations for political purposes would subvert the standard of transparency to which we hold our democratically elected officials.”

First Amendment Fellow Tyler Valeska is the lead author of the analysis with Law School student co-authors Michael Mills, Melissa Muse and Anna Whistler.

Said Valeska: “We think the White House NDAs are unconstitutional in the vast majority of applications.”

Now commonplace in the private sector, corporate NDAs became widespread in Silicon Valley in the 1970s as a means to protect intellectual property, according to the report. They are often employed by political campaigns, including Trump’s and Hillary Clinton’s in 2016, and Trump has used them extensively in his businesses and personal life.

But contrary to public statements by some of his advisers, the researchers say, Trump is the first president to implement private sector-style secrecy agreements for White House staff, reportedly ranging from senior aides to interns.

“President Trump’s White House NDAs differ immensely from the practices of previous administrations,” they wrote.

Since the Eisenhower administration, “executive privilege” has protected deliberations between presidents and senior advisers to ensure candid discussion of sensitive matters.

Government employees and contractors granted access to classified information must sign Standard Form 312, agreeing not to disclose that information without authorization in the interest of national security.

But the Trump White House NDAs – instituted in 2017 in reaction to leaks – appear to go much further, the researchers say, banning disclosure of all “nonpublic, privileged and/or confidential information,” including any information about Trump’s businesses or family. They also apply indefinitely.

When classified material isn’t at issue, First Amendment jurisprudence generally prohibits prior restraints on speech and government discrimination against speech based on its content or viewpoint. Any such infringements must pass strict legal scrutiny, according to the analysis.

That means the White House NDAs must serve a compelling government interest and be narrowly tailored. Instead, the authors say, the NDAs are “remarkably broad” in scope and the government has “no substantial interest” in hiding information embarrassing to the president.

“A former government official challenging the constitutionality of a White House NDA would have a strong case,” the report states.

Prohibiting government employees’ speech about nonclassified information also infringes on the rights of the press to gather information and receive it from willing sources, the authors argue.

“This is basic First Amendment theory, that for democracy to function properly you need to know what your government is doing in order to inform opinions about whether or not they’re doing it well,” Valeska said. “The primary way that we get that information is through the press via government sources.”

The Wolkoff case, the authors concluded, represents a “line in the sand,” with the Justice Department presenting weak legal arguments that the courts and future administrations should reject.

“Should the government prevail, the speech rights of wide swaths of future executive branch employees would be jeopardized,” the report says. “And the free flow of information that drives our democracy would be severely inhibited.”

University at Buffalo clinic prevails in Niagara County public records case

Note: A version of this post originally appeared on the University at Buffalo School of Law website.

BUFFALO, N.Y. — Represented by the Civil Rights & Transparency Clinic at the University at Buffalo School of Law, the New York Coalition for Open Government won a lawsuit against Niagara County that requires the release of years of financial disclosures of county officials.

On Sept. 10, 2020, Supreme Court Justice Frank Caruso invalidated Niagara County’s local laws that blocked potential financial conflicts from disclosure by elected officials since 1996.

Judge Caruso ordered the county to release all financial disclosures from Niagara County legislators since 2013. These documents contain information about elected officials’ businesses, investments, property and outside employment. Subject to public view for the first time in 24 years, the ruling allows the press and public to assess whether legislators have financial conflicts that may influence their decision-making.

“Niagara County legislators withheld these documents because they valued their own privacy over the public’s right to know. We’re pleased with the court’s ruling that validates our client’s long-held position that these were public documents that could not be kept secret,” said Michael Higgins, assistant director of the Civil Rights & Transparency Clinic, who argued the motion.

“We’re committed to bringing cases that law firms may not be able to accept,” said Heather Abraham, the clinic’s director. “For years, Niagara County was able to conceal potential financial conflicts of its elected officials, all because the average person does not have the time and money to challenge these laws in court. Our litigation realigns the power imbalance between the government and public citizens. We will continue to fight to promote government transparency in our region.”

The Civil Rights & Transparency Clinic is a litigation clinic at the University at Buffalo School of Law. Its mission is to advance justice through litigation and policy advocacy that protects civil rights and civil liberties, and makes government more transparent.

The clinic’s mission is supported by the Legal Clinic Fund, a collaborative fund that supports the growth and sustainability of legal clinics across the United States that seek to advance and defend first amendment rights, media freedom, and transparency in their communities and nationally. The fund is generously supported by Democracy Fund, Heising-Simons Foundation, and The Klarman Family Foundation. The Miami Foundation serves as fiscal sponsor for the fund.

Law enforcement and COVID to be focus of virtual Access and Accountability Conference

The Access and Accountability Conference will convene virtually Oct. 23-24, with attendees exploring the impact of the pandemic on access to information and what we can learn from recent experiences about how to improve FOIA and transparency.

The annual conference, hosted by the Media Freedom & Information Access Clinic at Yale Law School, brings together Free Expression Legal Network members — both law school clinicians and academics — as well as investigative journalists, practicing lawyers, and activists to focus on some of the key impediments to government accountability and openness.

The goal is to foster conversation and problem solving. More concretely, the conference informs the work of law school clinics and allied NGOs, opening new vistas for legal action, policy work and other advocacy. The first day of the conference convenes multi-disciplinary/multi-professional experts to explore some of the most pressing current issues; the second day is an incubator of ideas, opportunities for collaboration, best practices and success stories for law school clinics.

The conference provides a valuable opportunity for FELN members to brainstorm issues and strategies with leading scholars and practitioners, and for clinicians to share their success stories and develop plans for future collaborations. It is made possible by generous support from the Democracy Fund and the John S. and James L. Knight Foundation.

The unique structure of the conference has produced some terrific conversations in past years, and current events suggest that this year’s conference will be more enlightening, motivating and rewarding than ever. Attendees this year will take up the lessons to be learned from the current moment, with a particular focus on law enforcement accountability, executive branch accountability, and the transparency failures of the COVID pandemic.

Register for the conference here.

A tentative list of conference sessions is provided below.

Friday, Oct. 23

  • What the pandemic has taught about transparency
    • FOIA successes and failures
    • Zoom justice and the future of court access
  • Newsgathering in troubled times
  • Law enforcement accountability
  • Surveillance and security
  • Executive branch accountability

Saturday, Oct. 24

  • Collaboration colloquies
    • Supporting local journalism
    • Creating Precedent before the Facebook Oversight Board
  • Nuts and bolts: Litigating abuses of power
  • Success stories of law school clinics
  • Open meeting of the FELN steering committee

Lubell joins Cornell clinic to support local journalists in NYC region

The Cornell Law School First Amendment Clinic has hired Ava Lubell to its newly created position of local journalism attorney for the New York metropolitan area.

In that position, Lubell will provide free legal services to local media outlets and journalists in the New York City region to aid them in their important newsgathering functions and to defend them against attempts to interfere with or suppress their free-speech rights. Lubell will perform her services as part of the Ithaca-based clinic’s innovative Local Journalism Project.

The position is funded by a grant by the Charles H. Revson Foundation, which has been an active player in strengthening local journalism that serves the public interest.

“I believe this is a first for a law school clinic,” says Clinic Director Mark Jackson. “By hiring an attorney of Ava’s caliber in a satellite position in New York City we are at one and the same time expanding our geographic scope and increasing our ability to handle an even greater number of matters for journalists across New York and other states.”

Previously, Lubell was the general counsel for Quartz and before that she served as general manager and general counsel of Slate. She is a graduate of Brown University and New York University School of Law.

“So much important work is being done by local journalists to bring vital information to their readers about matters affecting the safety, health, education, and financial well-being of their communities,” says Lubell. “These are difficult times for local news outlets. I want to use my experience in newsrooms to help these journalists get their jobs done.”

Through its Local Journalism Project, the First Amendment Clinic has represented numerous news outlets in recent years, including VT Digger, Vermont’s largest not-for-profit news platform, in its efforts to obtain vital documents related to a major fraud committed in that state. The clinic is currently defending the Geneva Believer, a news site in Geneva, New York, against a defamation lawsuit brought by a local construction company, and recently won a ruling in that case denying the company’s application to have all reporting about it removed from the site. The clinic also recently filed a lawsuit on behalf of the investigative news site Documented in its effort to obtain wage-theft information from the New York State Department of Labor.

In addition to its work on behalf of local journalists, the clinic co-counseled last month with the attorneys at the New York Times in a lawsuit compelling the Centers for Disease Control and Prevention to produce documents that could shed light on the disparate impact of the COVID-19 pandemic on people of color.

“We have been delighted with the work of the First Amendment Clinic, particularly on behalf of local news outlets that don’t have access to legal resources,” says Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law. “It will be a tremendous service to local journalism if the clinic can duplicate that success in areas of New York City that need it most.”

UGA clinic files amicus brief arguing ‘false information’ law chills journalists

Note: A version of this post originally appeared on the University of Georgia First Amendment Clinic’s website.

On August 13, the University of Georgia First Amendment Clinic, in collaboration with PEN American Center, Inc., filed an amicus brief in Puerto Rico’s federal district court arguing that a recently enacted “false information” law chills journalists from reporting on public emergencies and burdens the public’s First Amendment interest in receiving information from the press.

Amicus Brief – Filed 08.13.20

Puerto Rico’s law, passed in April and amended in July, imposes six months’ jail time and/or a $5,000 fine for disseminating knowingly false information in the context of a “warning or false alarm” or if it creates “imminent risk” of harm. As the law does not define these terms and includes no safe harbor provisions, it creates a credible threat of prosecution for reporters and news media working to inform the public about rapidly evolving situations during state-declared emergencies. Internationally, statutes which criminalize false
or misleading news have become tools for suppressing legitimate reporting and citizen dissent. Puerto Rico’s law similarly provides a powerful tool for punishing news reporting and other speech that the government disfavors.

“Such broad discretion on the part of government to retaliate against its critics is particularly chilling to members of the press and their publishers who serve the essential role of shining light on state action, including governmental ineptitude, corruption or abuse,” the brief reads. Because of this law, “journalists, publishers, and their sources wishing to avoid arrest or prosecution will necessarily refrain from contributing to the public debate on any number of matters of public concern during a state-declared emergency or disaster, including criticizing the government or speaking counter to government narratives.”

The brief further argues that the chilling effect of the law “impedes the ability of the press to perform its ‘essential role’ of informing the public . . . This, in turn, inhibits the free flow of information upon which the public relies in exercising their own First Amendment rights and significantly hinders their ability to hold their government accountable or to bring about lawful change.”

The government defendants opposed the filing of the amicus brief but were overruled by the Puerto Rico district court, which accepted the brief for consideration.

Opposition to Amicus Brief
Amici’s Reply in Support of Brief

Clinic Fellow Samantha Hamilton and law student Jeffrey Murphy contributed to the brief written by Clinic Director Clare Norins and PEN America’s Nora Benavidez, and filed by local counsel in Puerto Rico.

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

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.”