2nd US Circuit Court of Appeals Judge Jose Cabranes (Image in public domain)

A federal appeals court has ruled that the United States government can keep video and photos of high-profile Guantanamo Bay prisoner Mohammed al-Qahtani secret because it is well-known that he was tortured and abused and any future release of information depicting him could be used by terrorist groups to incite anti-American violence.

The Center for Constitutional Rights filed a Freedom of Information Act (FOIA) lawsuit. At issue are at least 58 FBI videos “depicting Qahtani’s activities in his cell and his interactions” with Defense Department personnel. There are also two videos showing “forced cell extractions,” where Qahtani was likely removed from his cell in an abusive or aggressive manner, two videos showing “document intelligence debriefings” and “six mugshots” of Qahtani.

The Second US Court of Appeals in Manhattan declared in its decision [PDF] that the government had established “with adequate specificity” that images of Qahtani, who the government alleges was the 20th hijacker in the September 11th attacks, “could logically and plausibly harm national security because these images are uniquely susceptible to use by anti?American extremists as propaganda to incite violence against United States interests domestically and abroad.”

The appeals court embraced the pro-secrecy arguments of US Central Command Chief of Staff Karl Horst, who had submitted a declaration to the court.

Release of the records, Horst argued, would endanger “US military personnel, diplomats and aid workers serving in Afghanistan and elsewhere” and aide the “recruitment and financing of extremist and insurgent groups” because “enemy forces in Afghanistan” and elsewhere “have previously used videos and photographs [particularly of US forces interacting with detainees] out of context to incite the civilian population and influence government officials.” For example, the media published images in 2004 “relating to allegations of abuse of Iraqi detainees” (i.e. Abu Ghraib) and media reported in 2005 on “alleged incidents of mishandling of the Koran at Guantanamo.”

Horst added, “[T]he subject of US detainee operations in Iraq, Afghanistan, and at [Guantanamo] is extremely sensitive with the host nations and governments whose nationals we detain.” Additionally, releasing information ” would facilitate the enemy’s ability to conduct information operations and could be used to increase anti?American sentiment,” especially since the images “could be manipulated to show greater mistreatment than actually occurred, or change the chronology of actual events.”

As the court noted, in January 2009, the Defense Department’s Convening Authority for Military Commissions, Susan Crawford, stated that Qahtani’s treatment at Guantanamo “met the legal definition of torture” in an interview for The Washington Post. This statement was stunningly invoked to justify keeping videos and images concealed from the public.

“Apart from his notable profile, Qahtani is unusual because a significant government official has publicly opined that the interrogation methods used on him met the legal definition of torture,” the court contended.

“In effect, the court has embraced a rule that allows the government to use its own human rights abuses as a justification for concealing evidence of that misconduct from the public,” attorney Larry Lustberg, who argued the case for CCR, stated. “This rule is not only perverse, but it is also contrary to the Freedom of Information Act’s prohibition against using illegality or embarrassment as justifications for withholding information.”

Lustberg continued, “Fortunately, the Court of Appeals emphasized the limits of its opinion, noting that it was not holding that ‘every image of a specifically identifiable detainee is exempt from disclosure pursuant to FOIA,’ nor that ‘the government is entitled to withhold any documents that may reasonably incite anti?American sentiment.’ But that qualification aside, this decision represents a sad illustration of the judicial abandonment of its obligations to secure the people’s rights under the Freedom of Information Act.”

A federal district court judge in the Southern District of New York had previously issued a similar ruling in September of last year. In fact, Judge Naomi Reice Buchwald had argued in her decision the “written record of torture” made it “all the more likely that enemy forces would use Qahtani’s image against the United States’ interests.”

This anti-transparency argument is not all that different from arguments previously articulated by Fox News host Bill O’Reilly.

When the ACLU filed a FOIA lawsuit for photographs of detainee abuse, O’Reilly declared on July 25, 2005:

…Everybody knows those pictures incite violence against Americans. So why should more of them be fed to the press? We already know what happened at Abu Ghraib, and people are going to prison because of it. Clearly, more pictures of Abu Ghraib help the terrorists, as do Geneva Convention protections and civilian lawyers. So there is no question the ACLU and the judges who side with them are terror allies…

Additionally, Buchwald argued in the district court’s decision, “There is no evidence that any of the withheld videotapes or photographs depict illegal conduct, evidence of mistreatment, or other potential sources of governmental embarrassment.” Based off a review of the “FBI’s individualized description of the FBI Videotapes,” these records “do not document any abuse or mistreatment.”

It is difficult to determine if this claim is true. CCR cannot address the veracity of the claim because that would put attorneys at risk of being accused of improperly disclosing information to the public they are not authorized to disclose, according to a protective order in Qahtani’s habeas case.

Buchwald did not view the actual videotapes, an example of extreme deference toward the national security state. She read descriptions the government provided, which were likely written to ensure the judge was not suspicious or concerned about any of the tapes’ contents. It would appear the appeals court also accepted descriptions in an “FBI index” provided, which CCR was not allowed to view.

Either way, the appeals court adopted another pro-secrecy argument that because so much was known about Qahtani’s alleged treatment and detention already there was an even higher risk of violence being incited by terrorists.

CCR had argued that this “propaganda” justification would “stymie FOIA’s aims” and make it possible for the “government to disregard people’s right to a transparent government whenever there is a distant risk that someone somewhere could respond with violence.”

In other words, fear wins. The terrorists win. Terrorist groups can continue to relish the impact they are having on closing off American society.

The decision punishes Qahtani for being tortured. His lawyers do not get to reveal to the world additional details related to his abusive treatment because the government is afraid evidence of their torture will lead to blowback.

Court decisions like this also send a message to autocratic leaders of other countries, who are threatened by extremist groups, that they can defend keeping certain evidence of human rights abuses secret. All they have to do is point to the country that considers itself the freest nation in the world and invoke “national security” to justify keeping certain evidence of human rights abuses secret too.

Furthermore, it would be much easier to accept the arguments advanced by the government and complaisantly adopted as some kind of isolated and exceptional case if there had been US officials held accountable for torturing detainees, like Qahtani.

There has been virtually no justice for victims of US torture, and the bulk of one of the few and only official investigations by the government into torture by the Senate intelligence committee is likely to remain mostly concealed for many, many years as the CIA invokes similar arguments to justify heavily censoring a version of the report’s summary that may or may not be released to the public some time this year.

All the government needs is the confidence that it can argue, case by case, that information, which reflects poorly on the US shouldn’t be released. That is unquestionably what this decision gives the government the ability to do.

Essentially, if there is an enemy that can benefit from finding out how the US government brutally violates the human rights of people, those abuses do not ever have to be disclosed by the government. And, in that sense, the appeals court decision encourages a slide toward totalitarianism.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."