President Barack Obama’s administration claims that the executive branch alone may decide whether to disclose previously classified videos of the force-feeding of a former Guantanamo Bay prisoner—even though the videos are judicial records and a judge should be able to unseal and release them to the public.
On October 3, 2014, a federal district court ordered the Obama administration to review videos of Abu Wa’el Dhiab, a Syrian who at the time was still being held in indefinite detention. The government was granted permission to redact portions they believed needed to be censored for “national security.” Lawyers for Dhiab and media organizations, which supported disclosure, were to put forward a proposal for the release of videos.
Once the judge had the proposed redactions and the proposal for release, the district court would formally order the release of the videos, which show Dhiab being violently removed from his cell and the suffering he experienced during force-feedings. But the Obama administration appealed on October 15.
According to the Obama administration, an executive order on classified information, which Obama issued during his first months in office, is binding on the judicial branch and precludes the unsealing of videos. However, Judge Gladys Kessler of the DC District Court rejected this argument because it “would displace the court’s power to seal its own record, putting that authority in the government’s hands alone.”
“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,” Kessler maintained.
Lawyers for Dhiab argue in a recent filing [PDF], “Control over the classified filings in this case—including the videotapes—is a judicial branch power upon which the executive branch cannot intrude by operation of executive orders.” Constitutional separation of powers grants the court authority to order public disclosure. “Neither the district court nor this court is beholden to the executive branch to keep these videotapes wholly secret from the American public.”
This is far from the first time the Obama administration has claimed to have powers that trump the judicial branch’s traditional authority. For example, in October 2009, the administration objected to a decision where Judge Royce Lamberth ruled private lawyers should have access to classified information in a case involving a CIA station chief and senior diplomat who illegally spied on a Drug Enforcement Agency officer in Burma in the 1990s.
Justice Department lawyers argued the order represented “a significant departure from established law by making a judicial ‘need-to-know’ determination that properly belongs to the executive branch.”
Such claims of authority would seem to clash with Obama’s declaration on May 27, 2009, which was included in a memo to executive branch departments and agencies on classified information.
“While the government must be able to prevent the public disclosure of information where such disclosure would compromise the privacy of American citizens, national security, or other legitimate interests, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment,” Obama stated.
Why, if not for “self-serving reasons or simply to avoid embarrassment,” is the Obama administration trying to keep the videos concealed?
As lawyers highlight in their filing, an “evidentiary hearing” established that the government had ordered Dhiab to be force-fed, even though his life was not “at imminent risk from malnutrition.” Personnel based an order to force-feed off an “inaccurate accounting” of his weight.
Dhiab was “routinely subjected” to “painful” forced cell extractions, where “heavily-armored guards” would rush in his cell, truss him under “full restraint,” and carry “his immobilized body away for force-feeding.” He pled for the guards to allow him to use his wheelchair or crutches to go to force-feedings. He was denied their use until shortly before the evidentiary hearing took place.
Medical personnel would lubricate the feeding tubes with olive oil. Not only was this a departure from “standard medical practice,” it put him at risk of a “rare and untreatable form of pneumonia.”
When Dhiab was force-fed, he was strapped in a “five-point restraint chair which caused him substantial pain, in disregard of a medical staff recommendation for the less-painful use of a one-point restraint.” He was force-fed twice a day instead of leaving the tube in place for “up to four weeks, which caused him needless pain.”
The Obama administration improperly claims to have the power over the videos to keep secret this abuse and treatment that in many instances amounted to torture. It does not want the embarrassment of having to defend itself against outrage over further evidence of torture by United States military personnel.
However, if that is not the case, the administration’s reasoning for challenging the district court’s authority over judicial records may be related to “defending” (as officials would likely contend) or expanding control over information.
When a judge ruled that White House visitor logs were subject to the Freedom of Information Act (FOIA), the Obama administration took the previous position of President George W. Bush’s administration and argued they were “presidential records” in an appeal. The Obama administration successfully blocked release to an outside advocacy organization, Judicial Watch, but then began to post visitor logs to the White House website.
The issue was control. The White House wanted to be able to decide what records to disclose and not be subject to a law like the Freedom of Information Act or a judge’s decision for disclosure.
During March, the public witnessed that commitment to solidifying control over information yet again. The administration announced it was “deleting” a federal regulation that said the White House Office of Administration Records, which handles the archiving of emails, was subject to the Freedom of Information Act. Obama also signed a directive to “maintain the president’s control of the information resources” in the White House.
The Obama administration has typically favored transparency so long as they get to be the sole power that ultimately determines what is made public. If Congress or a court attempts to exercise its authority and play some role, the administration objects to their actions.
Either way, whether for control of information or to avoid embarrassment, the fact is that a number of prisoners in Guantanamo, like Dhiab, who are innocent, protested their detention by going on hunger strike. They were subject to brutal force-feeding, and the public should be able to see videos documenting this horrendous abuse. And, as a survivor, Dhiab deserves to have his claims about his treatment validated by having these videos finally released.