Legal Clinic: Yale Media Freedom & Information Access Clinic

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

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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

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.”

Clinics help transparency advocates win victory for public access to clinical trial data

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Note: A version of this post originally appeared on Yale Law School’s website.

A ruling from a federal judge on February 24, 2020, will dramatically expand the public’s right to access results of clinical trials studying drugs and medical devices. The ruling is the latest development in a lawsuit brought by the Yale Media Freedom and Information Access (MFIA) and NYU Technology Law & Policy (TLP) Clinics on behalf of Charles Seife and Dr. Peter Lurie, with the support of the Yale Collaboration for Research Integrity and Transparency (CRIT).

Judge Naomi Reice Buchwald of the Southern District of New York held that the Food and Drug Administration (FDA), National Institutes of Health (NIH), and Department of Health and Human Services (HHS) have misinterpreted a 2007 law that requires drug companies, universities, and other sponsors of clinical trials to disclose the results of clinical trials of FDA-approved products to the public via the ClinicalTrials.gov website.

The court’s order requires the government to collect and post about a decade’s worth of trial results that should be public under the 2007 law — making data from potentially hundreds of clinical trials available for the first time. “This is an extraordinary victory for patients and clinical trial researchers,” said Joseph Ross, Professor of Medicine and Public Health and faculty co-director of Yale CRIT. “The government now has a clear legal obligation to enforce these reporting requirements, and by doing so it will promote more fully-informed decision-making by patients and their clinicians.”  

Background on ClinicalTrials.gov and the need for clinical trial data

High-quality medical care requires high-quality evidence. But sponsors of clinical trials that investigate the safety and efficacy of medical products don’t always publish their results where doctors and patients can find them, according to the clinic. Instead, sponsors may “cherry-pick” data by publishing favorable clinical trial results and keeping secret unfavorable results.

“Recognizing this problem, Congress enacted the Food and Drug Administration Amendments Act (FDAAA) to ensure a flow of clinical trial evidence to patients, clinicians, and researchers through the public ClinicalTrials.gov website,” said Christopher Morten, supervising attorney at the TLP Clinic. “Yet NIH and HHS promulgated a rule and an interpretation of FDAAA that created an illegal ‘loophole.’” As MFIA student Simon Brewer explained, “the loophole purported to exempt many clinical trials of FDA-approved products completed between 2007 and 2017 from any obligation to ever report their results to ClinicalTrials.gov.” 

Seife emphasized the importance of the law: “The FDA is in charge of making sure that drugs on the market are safe and effective, but without access to data about those drugs, it’s nearly impossible to understand whether the agency is doing its job properly. ClinicalTrials.gov is a key source of this data.”

The MFIA-TLP lawsuit on behalf of Seife and Lurie

Seife and Lurie are two leading researchers on clinical trials whose research has been hindered by the absence of information on ClinicalTrials.gov. Seife is an investigative journalist at NYU whose work focuses on science and technology. Lurie is a family physician, president of the Center for Science in the Public Interest, and a former associate commissioner of the FDA.

In December 2018, MFIA filed suit on Seife and Lurie’s behalf. The suit sought to close the loophole and requested a declaration that NIH’s and HHS’s interpretation of FDAAA was inconsistent with the statute. Brewer argued Seife and Lurie’s case in court on February 11, 2020.

Judge Buchwald’s decision, issued on February 24, was a victory for Seife and Lurie on their loophole claim. The court concluded that “FDAAA unambiguously requires responsible parties [i.e., trial sponsors] to submit, and defendants to include on ClinicalTrials.gov,” results for loophole trials and therefore that “HHS’s contrary interpretation . . . is unlawful and must be set aside.”

“Judge Buchwald’s decision will help ensure that these government agencies and the drug and device industries are jointly held to account, and that the promise of the clinicaltrials.gov database be finally fulfilled,” said Lurie. “True transparency requires that all results of clinical trials be truthfully reported, be they positive, negative, or somewhere in between — and even in cases where the study sponsors or FDA would prefer not to disclose.”

The court also held that it could not grant relief on a separate claim, which asked for an order requiring NIH to post public notices of noncompliance whenever sponsors fail to submit results. Seife and Lurie are considering a potential appeal of this claim with their legal team.

Besides Brewer and Morten, Seife and Lurie’s legal team also included John Langford ’14, Adam Pan ’18, Jennifer Pinsof, and David Schulz ’78 of MFIA and Jason Schultz of the TLP Clinic. The lawsuit was conceived and supported throughout by CRIT members, including Alex Egilman, Gregg Gonsalves, Amy Kapczynski ’03, Harlan Krumholz, Shweta Kumar, Margaret McCarthy, Jennifer Miller, Joe Ross, and Joshua Wallach, and was further supported by Merith Basey of Universities Allied for Essential Medicines.

MFIA is a student clinic at Yale Law School dedicated to increasing government transparency and advancing the public’s right of access to information. TLP is a student clinic at NYU School of Law focused on issues at the intersection of technology, law, and social justice. The Collaboration for Research Integrity and Transparency (CRIT) is an interdisciplinary initiative launched in 2016 to enhance the quality and transparency of the research base for medical products. CRIT has received funding from Arnold Ventures. The lawsuit does not represent the institutional views of Yale University or NYU.  

Clinic coalition leads effort to limit Supreme Court’s ruling in Food Marketing Institute

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The U.S. Supreme Court’s 2019 decision Food Marketing Institute v. Argus Leader (FMI) dramatically changed the landscape of the Freedom of Information Act’s (FOIA) Exemption 4 for “confidential” “commercial or financial” “information.” But a coalition of transparency clinics — led by Cornell Law School’s First Amendment Clinic in tandem with Yale’s Media Freedom & Information Access Clinic as well as co-counsel from Vinson & Elkins’s Tom Leatherbury — is pushing back in a case in the Southern District of New York.

These clinics represent science journalist Charles Seife, who argued in summary judgment papers in September and December in front of Judge Furman that 2016 FOIA amendments limit the scope of the Food Marketing Institute decision, and that even under the Supreme Court’s new test, Seife should prevail in his efforts to obtain critical information related to the efficacy of an important FDA-approved drug.

The coalition argues that the textualist approach employed by the court in FMI applies equally to a new standard, enacted by Congress in 2016, known as the “foreseeable harm” requirement — an issue not considered in FMI, which involved a 2011 FOIA request prior to the effective date of these amendments. This standard requires agencies to reasonably foresee a harm from disclosure of the sought-after information before blocking its release.

In Seife’s case, neither the government (specifically, the FDA and HHS) nor the private intervenor-defendant (a drug company known as Sarepta Therapeutics) meaningfully engaged on the issue of whether there was a finding of foreseeable harm in this case, arguing instead that FMI decided issues related to the foreseeable harm standard even though they were never presented to the Supreme Court.

Seife also makes other important arguments:  That the 2016 amendments baked into FOIA a public interest in “knowing what the government is up to” as well as a rigorous and meaningful standard for the new FMI test that does not simply allow the government to state that information is “confidential” to render it so.

The case is now fully submitted to Judge Furman, and the clinics are awaiting a decision.

“I’m incredibly grateful to the team for fighting so long and hard on this case,” Seife said. “Journalists, especially freelancers, often don’t have the resources to fight in court for information withheld by the government. In this case, however, Yale and Cornell and Vinson & Elkins have made it possible to push for documents that are important for the public to understand not just what the government is doing behind the scenes when it approves drugs, but also crucial to understanding the safety and effectiveness of new medications.”

Read more from the clinics’ filings in the case:

Photo by Joe Ravi is licensed under CC-BY-SA 3.0.

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