On Friday, in the appeals court in Washington, D.C., judges appear to have brought to an unsatisfactory end a four-year struggle to make public videotapes of prisoners at Guantánamo — and specifically Jihad Dhiab (aka Diyab), a Syrian, also known as Abu Wa’el Dhiab — being force-fed and violently extracted from their cells.
The case, as explained in a detailed timeline on the website of Reprieve, began in June 2013, during the prison-wide hunger strike that year, which attracted international opposition to President Obama’s lack of activity in releasing prisoners and working towards fulfilling the promise to close the prison that he made on his second day in office in January 2009.
I also covered the case extensively at the time — see my archive here, here, here and here (which included Dhiab’s release to Uruguay and subsequent struggle to adapt to his new life), ending with an appeal court ruling in May 2015, when the D.C. Circuit Court refused to accept an appeal by the government arguing against the release of the videotapes, and a rebuke to the government in July 2015, by Judge Gladys Kessler in the federal court, who had initially ordered the release of the tapes, and who “ordered the government to stop wasting time with ‘frivolous’ appeals against her rulings,” and to release the tapes.
Judge Kessler had set a deadline of August 31, 2015 for the government to comply, but, as I noted in a subsequent footnote, the government obliged only by releasing to the court “redacted versions of eight videotapes” showing force-feeding, not the 32 videotapes in total that were being fought over.
As the Guardian explained at the time:
Attorneys in the case have viewed the tapes, but said that classification restrictions prevent them from discussing the substance of their contents. They are said to show Dhiab being forcibly removed from his cell using a so-called “tackle-and-shackle” technique, as well as being fed through a tube inserted through his nose into his stomach while his limbs and head are restrained.
Cori Crider, an attorney for Dhiab through the human-rights group Reprieve, called the behavior depicted on the videotapes “a national scandal”.
Crider said: “If the American people could see the force-feeding tapes I’ve watched, they would understand that abuse in Guantánamo is not just in the ‘bad old days’ of the past, but continues right up to the present.”
The Guardian also noted that, although eight “sanitized” video had been provided to the court, the government “continue[d] to resist their release to the public” via a lawsuit filed by 16 media organizations. The Guardian additionally noted that, in a July filing, Guantánamo’s commander at the time, Rear Adm. Richard Butler had claimed that, if the tapes were released, their content could “be provided to detainees, allowing them to manipulate the system, disrupt good order and discipline within the camps, and enable them to test, undermine and then threaten physical and personnel security,” and would also “facilitate the enemy’s ability to conduct information operations and could be used to increase anti-American sentiment, thereby placing the lives of US service members at risk” — a cumbersome and rather self-defeating argument, as the biggest element creating anti-American sentiment is Guantánamo itself, with its detention without charge or trial, its history of torture, and, more recently, its inhumane force-feeding.
I then lost track of the story, but as Reprieve’s timeline explained, on January 21, 2016, the Obama administration filed another appeal to suppress the release of the force-feeding tapes, and the latest decision by a three-judge panel in the Circuit Court followed arguments in September 2016.
As Charlie Savage explained for the New York Times, the coalition of 16 news organizations, including the Times, had first petitioned the court to unseal the videotapes in June 2014, and in October 2014 Judge Kessler had first ruled that the government must disclose them, but on Friday a three-judge panel of the D.C. Circuit, in the first major legal decision about Guantánamo under Donald Trump, “overturned her ruling.”
The panel — George H.W. Bush appointee Judge A. Raymond Randolph, Reagan appointee Judge Stephen F. Williams, and Clinton appointee Judge Judith Rogers — held that “even if the public has a qualified constitutional right to have access to classified evidence in such a lawsuit — a question about which the judges disagreed — disclosing the videotapes would create national security risks trumping that right.”
The Times added that the news organizations “had argued that it was in the public interest to see how the government was treating the men whom the United States is holding in open-ended detention without trial and force-feeding to keep alive.”
The government, however, “argued that the videos could be used in propaganda to incite violence against Americans and to recruit terrorists,” echoing the dubious claims made by former Guantánamo commander Rear Adm. Richard Butler two years ago. Nevertheless, Judge Randolph agreed with the government, noting that “images are more provocative than written or verbal descriptions,” and adding, “Extremists have used Guantánamo Bay imagery in their propaganda and in carrying out attacks on Americans. For example, the Islamic State beheaded American journalists wearing orange jumpsuits commonly associated with Guantánamo Bay detainees.”
Again, I have to say that closing Guantánamo and preventing force-feeding would be a better way of preventing extremism than banning the release of videotapes showing torture.
However, wheeling out further tired old arguments, the government “also argued that if detainees knew that such videotapes had become public, they might act out during force-feeding sessions in hopes that the episodes would also be taped,” adding a claim that, “if militants could study the guards’ techniques as shown on the videos, they might develop countermeasures.”
Unfortunately, although Judge Kessler “had rejected the Obama administration’s arguments that the disclosure would jeopardize national security as ‘unacceptably vague, speculative,’ lacking specificity or ‘just plain implausible,’” and had fought tenaciously for the prisoners’ rights for two years, the appeals court judges “ruled that she had erred.”
David A. Schulz, a lawyer representing the media coalition, said his clients had not yet decided whether to appeal. As he described it, “The only thing that all three judges agreed upon is that the government had demonstrated a compelling interest in keeping the videotape evidence secret. This is troubling given the conclusion of the district judge, after careful review of the actual videotape evidence, that the American public had a right to see what that evidence documented of alleged abuse.”
Jon B. Eisenberg, who had represented Dhiab, said, “It’s a loss to the American people that they will never see the shocking images of force-feeding at Guantánamo Bay that a handful of lawyers have seen behind closed doors.”
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