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Guantanamo Prisoner’s Attorneys Argue Government Appeal to Stop Release of Forced-Feeding Videos Would Fail

Abi Wa’el Dhiab

Abu Wa’el Dhiab, who an unidentified Navy medical officer refused to force-feed

Attorneys for a Guantanamo Bay prisoner Abu Wa’el Dhiab, who has pursued a lawsuit against the United States government’s forced-feeding of prisoners, have asserted a federal court has all the authority it needs to release videos of Dhiab being force-fed and forcibly removed from his cell. The attorneys maintain the government is “seeking secrecy to prevent accountability, not to protect national security.”

Judge Gladys Kessler of the United States District Court in the District of Columbia ordered the disclosure of videos to the press on October 3. She granted the government permission to make redactions of any information identifying Joint Task Force Guantanamo personnel but rejected just about all of the government’s most facile secrecy arguments.

The government filed a motion after her decision indicating it may “possibly” appeal her decision and requested a stay of the judge’s orders. The judge granted a 30-day delay of her order to release the videos.

In the latest development in this case, Dhiab’s attorneys claim the government [PDF] has “fundamentally misunderstood” the court’s order regarding the release of videos.

“The court’s subsequent order of October 9, 2014, makes clear that the court will not require public release of the videotapes until they are redacted and the Court has approved a joint proposal regarding the process of public release.” Until this happens, there is “no imminent threat of a public release that might compromise national security or moot a contemplated future appeal from the ultimate order for public release,” his attorneys argue.

Until the government appeals, attorneys suggest the government has a responsibility to “proceed expeditiously” with redactions or “the First Amendment interest in contemporaneous public access will be irrevocably impaired.” And add, “Each passing day of delay makes the videotapes older and older news.”

The attorneys then go on to argue that it does not matter if the government informs the court it may appeal. The government cannot win an appeal.

…First, the Protective Order governing Guantánamo Bay habeas proceedings authorizes this Court to require redaction of the videotapes for public filing. Second, well-settled First Amendment principles authorize this Court to authorize unsealing of the videotapes upon redaction of classified and protected information. Simply stated, once information identifying JTF-GTMO personnel is redacted, there is no colorable claim of a threat to national security…

This was Judge Kessler’s argument in her order to release the videos. A judge has the authority to unseal classified information in the 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]

Dhiab’s attorneys eventually state, “Other than the issue of protecting the identities of JTF-GTMO personnel, which is easily addressed through redaction,” the governmetn is “unable to make any cogent policy argument for keeping the videotapes secret.” The government’s argument “boils down” to “it is our policy judgment that this material should be classified, and
because we have made this judgment the courts must defer to it.”

The government seems to “assume that when classified information is involved, the separation of powers central to our constitutional form of government is up for grabs.”

Dhiab is a Syrian prisoner, who was cleared for release by President Barack Obama’s review task force in 2009. However, years later, he remains in indefinite detention and in 2013 he participated in a historic hunger strike at Guantanamo against his indefinite detention.

The government has sought to break his protest (as well as the protest of other prisoners) through forced-feeding. As one of his attorneys, Cori Crider of Reprieve, has described, “A so-called forcible cell extraction team, a group of soldiers in riot gear storms his cell, hauls him from his cell and straps him into this restraint chair where a 110-centimeter tube is passed up his nose and down into his stomach.” And so, Dhiab sought a preliminary injunction to force the government to change its policies of forced-feeding so the process is no longer used to punish him.

A trial on the force-feeding policies themselves has already taken place. To try and avoid a ruling that would constrain the government’s power, the Miami Herald reported that Justice Department attorney Andrew Warden announced in court that “prison-camp protocols” had been changed and the wheelchair that had been taken away from Dhiab had been returned to him.

Warden described the medical treatment as “thoughtful, attentive and high-quality” while Eric Lewis, one of Dhiab’s attorneys, held up a “size 10 feeding tube” and “accused Guatanamo’s Army guards of delivering the man to Navy healthcare providers ‘trussed up like an animal.'”

Sondra Crosby, who is a Boston University physician who “examined Dhiab last month,” told the court that it was her opinion medical care was “being withheld because of disciplinary status and that should never happen.” For example, as the Miami Herald further indicated, Navy medical staff had not conducted “sufficient diagnostic testing to determine the source of Dhiab’s complaints of chronic back pain and perhaps paralysis.”

The World Medical Association considers forced-feeding to never be “ethically acceptable.”

“Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment. Equally unacceptable is the forced feeding of some detainees in order to intimidate or coerce other hunger strikers to stop fasting,” according to the WMA.

The Institute on Medicine as a Profession (IMAP) and the Open Society Foundations published a report in November, which called for forced-feedings and the use of physical restraints to be prohibited.

“Far from being humane, the use of force-feeding over the past decade violates the human rights of detainees and has led physicians and nurses to commit serious breaches of their professional standards.”

The report added, “Neither the World Medical Association nor any standard-setting authority ever contemplated multiple force-feedings in a restraint chair over the course of weeks, much less months and years, as has been the practice at Guantánamo.”

Nevertheless, Crider has said Dhiab has made it clear that he will cooperate with the forced-feeding as long as he can maintain his protest. He does not want to die. He wants to go home to family but also does not want to eat meals until he is released. So, he has asked that he be able to wheel himself to his forced-feeding sessions instead of being hauled by a riot squad only to be strapped in a chair so a “horrible tube” can be run through his nose twice a day.

CommunityThe Dissenter

Guantanamo Prisoner’s Attorneys Argue Government Appeal to Stop Release of Forced-Feeding Videos Would Fail

Abi Wa’el Dhiab

Abu Wa’el Dhiab, who an unidentified Navy medical officer refused to force-feed

Attorneys for a Guantanamo Bay prisoner Abu Wa’el Dhiab, who has pursued a lawsuit against the United States government’s forced-feeding of prisoners, have asserted a federal court has all the authority it needs to release videos of Dhiab being force-fed and forcibly removed from his cell. The attorneys maintain the government is “seeking secrecy to prevent accountability, not to protect national security.”

Judge Gladys Kessler of the United States District Court in the District of Columbia ordered the disclosure of videos to the press on October 3. She granted the government permission to make redactions of any information identifying Joint Task Force Guantanamo personnel but rejected just about all of the government’s most facile secrecy arguments.

The government filed a motion after her decision indicating it may “possibly” appeal her decision and requested a stay of the judge’s orders. The judge granted a 30-day delay of her order to release the videos.

In the latest development in this case, Dhiab’s attorneys claim the government [PDF] has “fundamentally misunderstood” the court’s order regarding the release of videos.

“The court’s subsequent order of October 9, 2014, makes clear that the court will not require public release of the videotapes until they are redacted and the Court has approved a joint proposal regarding the process of public release.” Until this happens, there is “no imminent threat of a public release that might compromise national security or moot a contemplated future appeal from the ultimate order for public release,” his attorneys argue.

Until the government appeals, attorneys suggest the government has a responsibility to “proceed expeditiously” with redactions or “the First Amendment interest in contemporaneous public access will be irrevocably impaired.” And add, “Each passing day of delay makes the videotapes older and older news.”

The attorneys then go on to argue that it does not matter if the government informs the court it may appeal. The government cannot win an appeal. (more…)

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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."