Fourth Circuit Upholds Injunction Against Disclosing Names of Perceived Afghan Collaborators

The order came in a peculiar context—a civil lawsuit over the custody of a child born in Afghanistan—but its logic extends further.

From Fourth Circuit Judge Julius Richardson, joined by Chief Judge Albert Diaz, in today's Doe v. Mast:

To protect Plaintiffs and their family members living in Afghanistan, the district court issued a protective order that prohibited Defendants and their lawyers from "disclosing any information that directly or indirectly identifies Plaintiffs or their family members to any person … unless that person first executes a non-disclosure agreement." …

Although the order constitutes a content-based prior restraint, it fits into one of the narrow exceptions in which prior restraints can be permissible, subject to strict scrutiny. And the order satisfies strict scrutiny: It is narrowly tailored to safeguard the government's compelling interest in ensuring our Nation's security, which often depends on ensuring the safety of foreign nationals who ally themselves with United States military and diplomatic efforts abroad.

Indeed, if such foreign nationals cannot rely on the United States' assurances of their protection, our Nation's ability to cultivate essential human assets abroad would be seriously undermined. In this case, the narrow protective order is the least restrictive means to safeguard this interest. Therefore, we affirm the district court's protective order….

"The Government has a compelling interest in protecting" not only "the secrecy of information important to our national security" but also "the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp v. U.S. (1980). That includes protecting the identity of potential foreign collaborators…. [T]he government's ability to provide credible assurances to potential collaborators that they and their family members will not be endangered by aiding the United States is directly tied to its compelling interest in ensuring the Nation's security.

This interest necessarily encompasses protecting the confidentiality of those who are perceived as collaborators, regardless of whether they are actual collaborators. That's because the government's ability to credibly ensure the confidentiality of collaborators, and thus its ability to recruit and retain them, depends in part on avoiding publicly marking those seen as having assisted the U.S. government….

As the district court noted, the Does were evacuated from Afghanistan to the United States in late August 2021 and then housed at United States military bases. During this time, Operation Allies Refuge—as the name suggests—sought to support Afghans who worked alongside the United States in Afghanistan by bringing them to the United States. The circumstances and timing of the Does' evacuation and resettlement would predictably (even if mistakenly) lead an outside observer as well as the Taliban to perceive the Does as American collaborators.

Indeed, "evidence readily showed the grave safety risks that … [the Does'] families in Afghanistan would face if [the Does'] identities became public." The Taliban would likely "carry out violence against the Does' families remaining in Afghanistan." Nor is this mere conjecture, as the district court found that the "threat" to their families, if the Does' "identities become known, is anything but speculative." …

[And the] protective order—prohibiting "disclosing any information that directly or indirectly identifies Plaintiffs and their family members to any person … unless that person first executes a non-disclosure agreement"—is sufficiently narrowly tailored. It is limited to the Masts as participants in the litigation…. [And it] does not purport to control the Masts' ability to speak generally about the litigation, about the Does' claims, or about their own defenses….

More on the unusual factual and procedural background:

In September 2019, an Afghan infant (Baby Doe) was injured and orphaned during a joint U.S.-Afghan military operation in Afghanistan. U.S. Army Rangers then took Baby Doe to a U.S. military hospital for emergency care. Soon thereafter, Major Joshua Mast, who was serving in Afghanistan as a Marine Corps Judge Advocate, learned about Baby Doe. Mast and his wife, Stephanie Mast, began custody proceedings in Virginia. They obtained an interlocutory adoption order in November 2019, which was finalized in December 2020.

This led to a dispute over child custody with the Does, who were Baby Doe's cousin and his wife; eventually the Virginia Supreme Court rejected the Does' challenge.

In September 2022, the Does brought this federal suit against the Masts, Joshua's brother Richard, and others who assisted the Masts. Along with their original complaint, the Does moved for a protective order that would prohibit Defendants from publicly disclosing the Does' identities.

In support, John Doe submitted a sealed declaration explaining that he and Jane Doe would fear for their own safety—and that of their family in Afghanistan—if their presence in the United States or the circumstances surrounding their departure from Afghanistan were revealed. He expressed concern that if their location were revealed, then the Taliban would learn of it and harm their family members based on the false perception that Doe was a U.S. cooperator or spy. This fear is even more acute because the Does came to the United States during the evacuation of Afghanistan—at the same time as many genuine cooperators. He further explained that their family would be put at risk even if only their hometowns were publicly disclosed.

The district court agreed, issuing the gag order described in the opening paragraph above. The court held that "the protective order constitutes a content-based prior restraint," because it enjoined the publication of specific information. But the court held that this was the "exceptional case[]" in which a content-based prior restraint is constitutionally permissible, because it's narrowly tailored to the compelling government interest in national security:

Judge Robert King dissented on narrow appellate procedure grounds.

Kevin S. Elliker (Hunton Andrews Kurth LLP) argued the case on behalf of the Does.