Judge Won’t Let U.S. Government Conceal Videos of Guantanamo Force-Feeding
A federal district court judge refused to reconsider an order to release videos of a former Guantanamo Bay prisoner being force-fed and forcibly removed from his cell. In doing so, the judge took a strong stand against the United States government’s arguments for secrecy and even went so far as to quote the Pentagon Papers case.
Abu Wa’el Dhiab, a forty-six year-old Syrian, was detained at Guantanamo Bay from 2002 to December 2014. He remained in detention for five years after Obama’s own review task force cleared him for release. He was released with five other prisoners to Uruguay.
During his confinement, Dhiab protested by engaging in a hunger strike. He endured torture and abuse as military personnel subjected him to forced feedings. He filed a lawsuit prior to his release to put a stop to the forced feedings.
President Barack Obama’s administration has fought an order from the U.S. District Court for the District of Columbia since October 2014. A federal appeals court dismissed a challenge to the order in May. Then, in July, Judge Gladys Kessler instructed the government to stop stalling and complete the processing of videos for release.
The government requested the court reconsider its decision, and Kessler firmly denied the request.
In Kessler’s ruling [PDF], she calls the claim that “no court has ever before, in any Guantanamo Bay habeas proceeding, allowed public disclosure of classified national security information” the “government’s most emphatic argument.” Specifically, the government means the thirty-two videos showing Dhiab as he was “forcibly removed from his cell and forcibly fed against his will.”
“The simple answer to this argument is that no court has ever before, in any Guantanamo Bay proceeding, refused to allow public disclosure of images of any kind, depicting detainees being forcibly removed from their cells and forcibly fed against their will,” Kessler asserts.
Additionally, the government demanded the court show deference to the Executive Branch’s authority to classify national security information and the determinations it makes about such information.
To which Kessler responds, “What the Government is really saying is that its classification system trumps the decisions of the federal courts as to the public’s access to official court records; in other words, the Executive Branch (in this case, the military) purports to be a law unto itself.”
Kessler highlights the government’s “repetitive, speculative, and extremely vague” arguments in new declarations submitted to the court, which detail examples of alleged harassment and abuse of individual government employees and military personnel at Guantanamo by detainees. Such examples include biting, hitting, defecating, urinating, vomiting on personnel.
However, Kessler points out the government failed to describe how often these incidents occur or whether serious bodily injury has ever taken place. The government also provided no “concrete information or examples of particular incidents at Guantanamo Bay that have motivated extremist and/or insurgent groups to engage in violence against United States personnel,” which the government claims will occur if videos are released. There also is no evidence prisoners will develop “countermeasures” to tactics or techniques used to remove them from their cells.
“One particular example given in the declarations is flat out unbelievable, namely, that if the videos are released, Mr. Dhiab’s privacy would be invaded,” Kessler adds. “Mr. Dhiab has already clearly stated, in no uncertain terms, that ‘I want Americans to see what is going on at the prison today, so they will understand why we are hunger-striking, and why the prison should be closed. If the American people stand for freedom, they should watch these tapes. If they truly believe in human rights, they need to see these tapes.'”
In other words, Kessler firmly rejected the government’s effort to conceal human rights abuses by invoking the survivor’s privacy rights.
Kessler acknowledges how it is important for the press and public to view the videos to not only “evaluate the credibility” of Dhiab’s claims about his time in the military prison but also to “assess the fairness” of his treatment “by the court” and to provide oversight to the government.
“Transparency about the actions of our government—including the judiciary—is one of the cornerstones of our democracy,” Kessler declares. “This court has found that the government’s justifications for barring the American public from seeing the videotapes are not sufficiently rational and plausible to justify barring release of the videotapes.”
Finally, she quotes Justice Potter Stewart, who supported the right of newspapers to publish the contents of the Pentagon Papers:
In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may be in an enlightened citizenry — in an informed and critical public opinion which alone can … protect the values of democratic government.
Cori Crider, a Reprieve attorney who has represented Dhiab, reacted, “The Obama administration has dragged its feet for over a year to stop the American press and public seeing a single frame of these tapes.”
“We’re glad the judge has denied the government’s request for a blanket cover-up, but a lot of problems persist – we expect the government to appeal this to the Supreme Court to stop people seeing the truth. Americans have a right to see what continues to be done in their name up to this day. The government should reduce its heavy-handed censorship of the footage, drop the appeals, and release the tapes immediately.”