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Obama Administration Fights To Suppress Force-Feeding Videos From Guantanamo

Last month, the Justice Department appealed a federal district court’s decision to order the release of videos of a former Guantanamo Bay prisoner being force-fed and forcibly removed from his cell.

In the filing, which was stamped “Secret” [PDF], the Justice Department maintains that allowing the district court’s order to stand will mark a “sea change in the protections given to properly classified information.” Government attorneys also re-emphasize a previous argument that there is no First Amendment “right of access” to properly classified information.

Abu Wa’el Dhiab, a forty-six year-old Syrian, was detained at Guantanamo from 2002 to December 2014. He remained in detention for five years after President Barack Obama’s 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.

The Obama administration has fought an order from the U.S. District Court for the District of Columbia since October 2014. The irony is these videos could potentially be used by the Obama administration to push for the closure of the Guantanamo Bay prison, a longstanding promise of Obama’s presidency. Yet, refusing to release the videos suggests the push for closure is more about preserving the posterity of one’s presidential legacy than a commitment to human rights.

With the appeal, the Obama administration continues to prioritize secrecy over truth and accountability for torture and abuse of detainees by military personnel. In fact, it comes as the administration still refuses to disclose around 2,000 photos of torture and abuse by military officers in Iraq and Afghanistan.

The government makes no attempt to refute the arguments of Judge Gladys Kessler. Instead, the government insists the district court committed a gross error when it dared to question the government’s determination that disclosure of the videos would cause “serious damage to national security.”

The videos at issue in this case are, as the government states, “Videos made for the purpose of training Guantanamo security personnel and showed forced cell extractions conducted on Dhiab before or after [forced] feeding and some aspects of Dhiab’s [forced] feeding process.”

Attorneys for Dhiab have described the footage as “disturbing.” Reprieve attorney Cori Crider previously stated, “The force-feeding tapes would make your blood run cold.” But Dhiab’s attorneys are barred from describing any specific aspects of the videos.

The government argues this is the first time a court has “ordered public disclosure of classified information over the government’s objection.” Kessler’s response to this was 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.”

In the appeal, the government makes no attempt to grapple with the issue of keeping videos of a detainee being abused or mistreated secret.

The government re-emphasizes the arguments of high-ranking military officials, which were soundly rejected by Kessler, and, again, there is little attempt to rebut these arguments except to insist the district court failed to show proper deference to the government.

For example, the government maintains the court’s order was “inconsistent with the Executive Branch’s authority to determine what national security information is appropriately classified—a judgment that courts may review in appropriate contexts but only with great deference.”

The government also insists that in Freedom of Information Act litigation and “other contexts,” a review of “Executive Branch decisions is exceedingly deferential.”

Kessler’s response to this argument was, “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.”

The Obama administration would still have the public believe that releasing video of force-feeding, which has been redacted to remove personal identifying information that could put personnel at risk, will boost terrorist propaganda. It will “enable detainees to develop countermeasures to cell extraction” and “encourage detainees to force more cell extractions, which would increase the risk of injury to both detainees and military personnel.”

But, as Kessler pointed out, these assertions of potential harm lack specifics, such as “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.” There is no evidence prisoners will develop “countermeasures” to tactics or techniques used to remove them from their cells.

Kessler also argued, “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.”

In other words, the claims of risk to national security rest upon very thin and largely implausible reasoning. It is quite clear the administration plainly does not want the world to see how military personnel treats and abuses Guantanamo Bay prisoners.

Finally, the government asserts, “The district court’s First Amendment standard would impose a ‘heavy burden’ and presume a right of access unless the government demonstrates a ‘substantial probability’ of harm to an ‘overriding interest.'”

This is only a problem for government officials and military officers, who manipulate the Freedom of Information Act and other laws and regulations to block the release of information which reveals human rights abuses. It is only a problem for officials and officers, who wish to constrain the judicial branch from checking their power. Otherwise, this seems like a perfectly defensible standard to impose so that the public may have government transparency.

Kevin Gosztola

Kevin Gosztola

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