Judge Stunningly Rebukes Government & Orders Unsealing of Videos of Guantanamo Prisoner Being Force-Fed
A federal judge has ordered the government to unseal twenty-eight previously classified videos of a Guantanamo Bay prisoner being force-fed and forcibly extracted from his cell for forced-feedings.
Abu Wa’el Dhiab, a Syrian prisoner, has been imprisoned at Guantanamo since 2002. He was cleared for release in 2009 by President Barack Obama’s own review task force. He remains in indefinite detention and has protested his confinement by engaging in a hunger strike. The government has worked to break this protest by subjecting him to regular forced-feeding.
In April, Dhiab filed a motion for a preliminary injunction to halt the feeding and forcible extractions from his cell (known as FCEs). His attorneys from the human rights organization, Reprieve, requested videotapes from April 9, 2013, when he went on hunger strike, and February 19, 2014, be produced for the lawsuit. The government complied and subsequently various news media organizations, including ABC News, Associated Press, First Look Media, Guardian, McClatchy, NPR, New York Times and Reuters, intervened to have twenty-eight videotapes entered into the judicial record unsealed.
Judge Gladys Kessler of the US District Court of the District of Columbia granted the motion and ordered the government to unseal the video with “all identifiers of individuals in the videotapes (i.e. faces other than Mr. Dhiab’s, voices, names, etc.)” censored.
“The court is well aware, as the Government has emphasized, that in no case involving Guantanamo Bay detainees has any court ordered disclosure of classified information over the Government’s opposition,” Kessler states [PDF]. “However—to be clear—that does not mean that in a given factual situation no court has the discretion to do so if warranted. Quite the contrary. Our Court of Appeals has stated that it is the judiciary’s responsibility, when ruling on an issue as overwhelmingly important as diminution of our precious First Amendment rights, to ensure that classification of the items in question, i.e., the FCE videos is proper.”
Her decision represents a stunning and refreshingly bold rebuke of all the global security state’s most pernicious secrecy arguments.
Rear Admiral Richard W. Butler, who was the Joint Task Force Guantanamo commander from July 2013 to July 2014, wrote a declaration for the government on why the videos should not be disclosed. Kessler found Butler’s justifications for secrecy to be “unacceptably vague, speculative,” lacking in “specificity” or just “plain implausible.”
Butler argued that “release of any footage of this type provides the enemy with opportunity to search for weaknesses and vulnerabilities exposing FCE and medical personnel to possible attack,” and, “public release of FCE videos could provide detainees with the ability to devise new ways to thwart the enteral feeding process.”
Kessler counters, “However, the detainees subjected to forced-feeding are already intimately familiar with the enteral feeding process and facilities. Moreover, the Government has already released substantial information relating to the feeding process, including the layout of and equipment in the enteral feeding. It strains credulity to conclude that release of these videos has a substantial probability of causing the harm the Government predicts.”
The idea of prisoners developing “countermeasures” is “implausible,” especially because “detainees are already familiar with the tactics used to extract them from their cells and enterally feed them, and detailed descriptions of the procedures are publicly available on the internet.”
Kessler wholly rejects the government’s claim that the release of the videos will be used as propaganda against the United States so they should remain secret.
…As we have seen in recent years, terrorists of all stripes and ideologies have long been attempting to create anti-American sentiment abroad by using publications as recruiting material for new members. However, courts have long rejected arguments to abridge the First Amendment that would give rise to a “heckler’s veto.”…The rights afforded by the First Amendment cannot be defeated “simply because [the rights exercised] might offend a hostile mob.”…As was aptly stated in ACLU v. Department of Defense,…, “[t]errorists do not need pretexts for their barbarism.” 14 Accordingly, “fear of blackmail is not a legally sufficient argument to prevent [the court] from performing a statutory command [,]”…, much less, complying with a Constitutional mandate…
The government claimed “release of images of medical facilities could allow detainees to find items that might be used as weapons and that public knowledge of infrastructural information could facilitate disruption of good order and discipline within the camps.”
Kessler responds, “The government has released pictures of cellblocks and medical facilities, surveillance rooms, and actual pictures of several camps, which include images of medical facilities.” And, “In the face of what the Government has already released, its concerns are simply not rational or plausible.”
Butler argued that releasing the videos would lead to prisoners becoming aware of this and they would behave in ways that would lead to more forcible cell extractions. In other words, the videos would inspire anarchy among prisoners.
“This argument fails to show a substantial probability of harm and is entirely too speculative to defeat the public’s right of access,” Kessler declares. She mentions that media organizations are only asking for tapes in the judicial record to be released, not all the videos of every FCE that has ever been performed at Guantanamo Bay. “Nothing in this Court’s decision would give Guantanamo Bay detainees the unilateral right to publicize videos of their own FCEs.”
The government was apparently worried that Dhiab would be subjected to “public curiosity.” She scratched her head and put together this appropriate response:
…What the Government means when it worries that “any portion of the videotapes containing an image of the Petitioner could expose him to public curiosity” is not immediately apparent. Mr. Dhiab has been clear that he wishes release of the videotapes. It is hard to believe that Mr. Dhiab — whose particular videos are the only ones at issue would be offended or distressed by knowing that the public was able to view his treatment at Guantanamo Bay. Given the extensive publicity about his situation, and the fact that on any number of occasions his lawyers have talked to members of the press to describe his plight, the Government’s concern that he would be harmed in any way by release of the videos is not plausible… [emphasis added]
But Kessler’s rebuke gets even better. She informs the government that Butler’s claim that videos would “raise serious questions by United States allies and partners and others in the international community as to whether the United Statees is acting in accordance” with “longstanding policy to protect detainees from public curiosity, consistent with the Geneva Conventions” is basically a way to undermine protections in the Geneva Conventions.
“The government’s claim, if accepted, would turn the Third Geneva Convention on its head. Rather than a source of rights to humane treatment, Article 13 would become a means to shield from public view treatment that Mr. Dhiab (and undoubtedly other detainees) believe to be inhumane,” Kessler argues.
She compares unsealing the videos to the case, ACLU v. Department of Defense, which involved the ACLU seeking the release of photographs of abuse of prisoners at Abu Ghraib, was likely to “further the purposes of the Geneva Conventions by deterring future abuse of prisoners.” The kind of “curiosity” the release of those photos would have created would not have led to the kind of “curiosity” the Conventions prohibits. (Note: Those photos were never released. Obama blocked their release by making the kind of arguments Kessler slapped down in this decision.)
On top of all that, Kessler did not limit her decision to showing how irrational and implausible the government’s claims were to keeping the videos sealed. She also clearly articulated how a judge has the right to unseal classified information in a judicial record.
…The Fourth Circuit, in In re Washington Post Co…concluded that although the Executive has the sole authority to determine what information is properly classified for its purposes, only the judiciary has the discretion to seal or unseal a judicial record. While the Court admitted to being “troubled by the risk that disclosure of classified information could endanger the lives of both Americans and their foreign informants, [it was] equally troubled by the notion that the judiciary should abdicate its decision-making responsibility to the executive branch whenever national security concerns are present. History teaches us how easily the spectre of a threat to ‘national security’ may be used to justify a wide variety of repressive government actions. A blind acceptance by the courts of the government’s insistence on the need for secrecy, without notice to others, without argument, and without a statement of reasons, would impermissibly compromise the independence of the judiciary and open the door to possible abuse.“… [emphasis added]
Any risks, Kessler determined, could be properly addressed by applying audio or visual edits that included “screening names and voices, blurring faces and identifying portions of uniforms and blacking out written materials on walls.”
“The First Amendment’s express guarantees of free speech, freedom of the press, and the right to petition the government carry with them an implicit right of public access to particular government information.”
And, “It is our responsibility, as judges, as part of our obligation under the Constitution, to ensure that any efforts to limit our First Amendment protections are scrutinized with the greatest of care. That responsibility can not be ignored or abdicated.”
It is truly remarkable when a federal judge actually decides to act in defense of the First Amendment. At a time when a judge could have made all sorts of leaps in their decision by giving the government the benefit of the doubt and invoking the Islamic State and al Qaeda in Iraq and Syria, Judge Kessler issued a decision that should be widely praised.