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Government Frustrates Court’s Plan for Release of Videos of Guantanamo Prisoner Being Force-Fed

The United States government is planning to appeal a decision by a federal judge, who ordered the release of at least twenty-eight videos of a Guantanamo Bay prisoner being forcibly extracted from his cell in shackles and force-fed. Attorneys for the Justice Department have requested an administrative stay so videos are not made public before an appeal is filed.

Abu Wa’el Dhiab, a Syrian who has been imprisoned at Guantanamo since 2002 and was cleared for release in 2009 by President Barack Obama’s own review task force, engaged in a hunger strike with other prisoners in April 2013. He was protesting his indefinite detention and confinement conditions. The government attempted to break his protest through forced-feeding and Dhiab sought a preliminary injunction to halt the forced-feeding and forcible cell extractions (FCEs), which he believes is cruel and inhuman treatment.

His attorneys from the human rights organization, Reprieve, requested video from April 9, 2013, to February 9, 2014, be produced by the government so Dhiab could effectively challenge his treatment. The government produced the videos, and, subsequently, a number of media organizations, including ABC News, Associated Press, First Look Media, Guardian, McClatchy, NPR, New York Times and Reuters, intervened to have twenty-eight videotapes in the judicial record unsealed.

Judge Gladys Kessler of the US District Court of the District of Columbia granted the motion to have the videos released on October 3.

“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 stated [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.”

Her decision deconstructed most (if not all) of the government’s secrecy arguments and did not show the executive branch the type of deference Justice Department officials have grown accustomed to receiving.

On October 15, the government filed a motion to stay her order unsealing the “classified videos” pending possible appeal and requested an administrative stay [PDF].

It describes Kessler’s decision as ordering, “for the first time in any Guantanamo habeas proceeding, the public disclosure of classified information and substituting (contrary to established precedent) the court’s judgment for that of executive branch officials reflected in the record that the release of the classified information could reasonably be expected to cause serious harm to national security.”

The motion argues that the court inappropriately found a “First Amendment right to classified information.”

“Among other things, the court disregarded that there is no history of public access to classified information in judicial proceedings,” the government asserts. “Indeed, the court of appeals has recognized the propriety of denying access to classified material in litigation even when access is being sought by a party to the suit rather than, as here, members of the public who are non-parties.”

“The Court did not accord deference, but rather substituted its judgment for that of the executive multiple times” in evaluating a declaration from Rear Admiral Richard W. Butler, who was the Joint Task Force Guantanamo commander from July 2013 to July 2014:

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Kevin Gosztola

Kevin Gosztola

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