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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

UVA Law School relaunches First Amendment Clinic

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Charlottesville, Va. – The Board of Trustees of the Thomas Jefferson Center for the Protection of Free Expression has decided to donate the Center’s assets of over $1 million to relaunch the First Amendment Clinic at the University of Virginia School of Law. The clinic will be taught by attorneys at the Reporters Committee for Freedom of the Press, a national non-profit based in Washington, D.C., that provides free legal services to journalists. The Thomas Jefferson Center’s other activities will be concluded.

The Thomas Jefferson Center is a non-profit, nonpartisan institution in Charlottesville. Its founding director was the late Robert M. O’Neil, former UVA President, Law School professor and longtime director of the First Amendment Clinic. The UVA First Amendment Clinic is one of the oldest of its kind in the country and had been on a brief hiatus.

Bruce W. Sanford, chair of the Thomas Jefferson Center’s Board and a prominent First Amendment lawyer at Baker Hostetler in Washington, D.C., said, “The relaunching of a well- funded First Amendment Clinic operated by UVA Law School and taught by the Reporters Committee continues the Thomas Jefferson Center’s longstanding relationship with both organizations and promises to provide a lasting legacy for the Center’s mission and work.”

“From its inception, the Thomas Jefferson Center’s mission was to advance First Amendment advocacy,” said Mr. Sanford. “Our Board believed that a growing engine of that advocacy is clinical education, and that it was time to focus the use of the Center’s assets on a revived First Amendment Clinic at UVA Law, powerfully strengthened by a partnership with the Reporters Committee.”

UVA Law School Dean Risa Goluboff said the school has long been an important center of First Amendment scholarship and clinical education.

“The First Amendment Clinic will teach the next generation of lawyers and advocates to advance these crucial values, and we are grateful to the Thomas Jefferson Center for its support,” she said.

Bruce Brown, executive director of the Reporters Committee and co-director of the Clinic from 2010 to 2017, said, “We are excited to provide crucial needs-based legal help to journalists and documentarians throughout the region. At the same time, we are grateful to the board of the Thomas Jefferson Center for creating new opportunities for us around First Amendment scholarship and educational programming by tying us even more tightly to UVA Law School.”

Read UVA Law School’s release.

Founded in 1989 with endowing gifts from Thomas E. Worrell, Jr., his family and other donors, the Thomas Jefferson Center’s programmatic activities were devised by its founding director, Professor O’Neil. They included a wide range of initiatives aimed at deepening public understanding of First Amendment values. For instance, the Thomas Jefferson Center administered the annual Jefferson Muzzles awards, bestowed on government officials and others who had tried to stifle free expression; another award named after the late Justice William F. Brennan, Jr. for distinguished service to the First Amendment; and a partnership with the Ford Foundation called “Difficult Dialogues” about free speech on campus.

The Reporters Committee for Freedom of the Press was founded by leading journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources. Today, its attorneys provide pro bono legal representation, file “friend-of-the-court” briefs in major media law cases, and produce other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.