October 16, 2014
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 Waíel Dhiab, a Syrian who has been imprisoned at Guantanamo since 2002 and was cleared for release in 2009 by President Barack Obamaís 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 Governmentís opposition," Kessler stated [PDF]. "Howeveróto be clearóthat 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 governmentís 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 Kesslerís 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 courtís 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.
ÖFor example, in rejecting RDML Butlerís explanation that release of video footage of FCEs poses a risk to military personnel because detainees and other enemies armed with such information could develop countermeasures to FCE procedures, the Court ignores RDML Butlerís explanation that the fact that detainees have experienced FCEs themselves does not change the value that videos of FCEs would have in permitting detainees, alone or with the help of others outside Guantanamo, to more thoroughly assess FCE procedures and develop countermeasures. Instead, the Opinion simply asserts that "detainees are already familiar with the tactics used to extract them," substituting its judgment of the tactical value of video footage for RDML ButlerísÖ
What Kessler argued in her decision was that "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."
The government argues that releasing videos of Dhiab would lead to an increase in "detainee resistance" after they become aware that such videos can be made public.
"Butlerís analysis reflects the reasonable expectation, based on the accumulated expertise and knowledge the military has acquired while managing the detention center, that some detainees, upon becoming aware that a court has ordered release of FCE videos, would endeavor to create opportunities to appear in videos that would be released to the public at a later date," the government suggests.
Kesslerís response to this was that the government failed to show a substantial probability of harm" and such an argument was "entirely too speculative to defeat the publicís right of access." She noted that the court was ordering tapes in the judicial record to be released, not all videos of every forcible cell extraction ever performed at Guantanamo Bay and this granted no prisoner the "unilateral right to publicize videos of their own FCEs."
Remarkably, the statement in the governmentís motion takes the speculative argument a step further, showing the Pentagonís belief that detainees on hunger strike are challenging their forced-feeding in US courts as part of their fight against America in the "war on terrorism." Winning disclosure of videos is a part of prisoners keeping their struggle alive and not an effort to end inhuman treatment while in detention. It is the same rationale that drove Pentagon commanders to stop reporting data on the number of prisoners engaged in hunger strike to the press.
"Disclosure of the FCE videos could result in damage to national security arising from a likely perception in the international community that the United States is unconcerned about the public release of images of detainees without legitimate purpose and the resulting dilution of protections available to military service members in overseas conflicts," the government adds. "And, to the extent the court concludes that airing videos of [Dhiab] better serves the goals of the Geneva Convention than withholding the videos, the Court has improperly substituted its own policy judgment for that of the executive."
The "policy judgment" the government rejects is that the governmentís claim would "turn the Third Geneva Convention on its head. Rather than a source of rights to humane treatment, Article 13 would become a means to shield from public view treatment that Mr. Dhiab (and undoubtedly other detainees) believe to be inhumane." The kind of "public curiosity" the videos would create is the kind of curiosity that would "further the purpose of the Geneva Conventions by deterring future abuse of prisoners."
The government actually argues without any sense of their own absurdity that the videos could not be released because it might lead other countries to "raise serious questions" as to whether the US is "acting in accordance" with the Geneva Conventions. In other words, the government is casting itself as the potential victim of some kind of illegitimate scandal and shot to American credibility if the world is able to see how it has treated a human being, which the government has up to now said is entirely appropriate and lawful.
In response to the courtís conclusion that the videos contain details on the physical layout of Guantanamo detention facilities, which are already in the public domain, the government disputes this analysis. "Photos of the interior of the detention center that are released to the media are pre-screened to protect classified information," and, "Indeed, this public information could be used in combination with information in the FCE videos to reveal even more information than the videos themselves."
The government, concerned that the videos will be used as propaganda by al Qaeda, responded to the courtís decision to not let a "hecklerís veto" obstruct a First Amendment right of public access. "At least one judge has rejected the courtís conclusion that, because terrorists will commit barbaric acts whether the videos are released or not, it should not take into account the likely manipulation for use in propaganda."
Regardless of whether the governmentís arguments for appeal are convincing, the government indicates in its motion that it is unable to comply with the court order and have the videos ready for release on October 17, as Judge Kessler ordered.
The court allowed the government the ability to censor personal identifying information in the videos related to anyone besides Dhiab. The government informs the court it will take "15 to 19 hours per video, with three videos processed at a time" to complete the effort to censor the videos. This will take at least 5 weeks, "assuming there are no technical issues such as equipment breakdowns or interruption of work due to other court deadlines."
Also, "frame-by-frame editing is necessary to reduce the risk of releasing identifying information which could be obtained through use of publicly available editing software to conduct frame by frame reviews or otherwise penetrate the edits."
Notice, however, this motion was filed two days before October 17, the day it was supposed to have completed redaction of the videos. Evidence in the motion suggests the government has not redacted a frame of any of the videos yet.
It waited about twelve days to file a motion complaining it did not have enough time to redact all the videos and also that it will likely appeal the courtís decision. This seems like a deliberate effort to frustrate the courtís plans to enable transparency, and one has to wonder why the government has taken so long to submit an appeal.
*Image used for story appears on Justice Departmentís own government website & is in the public domain