Appeals Court Refuses to Allow Government to Block Release of Guantánamo Force-Feeding Tapes

3.6.15

Abu Wa'el Dhiab photographed after his release in Uruguay with a picture he painted after his release (Photo: Oscar Bonilla).Last Friday, the appeals court in Washington, D.C. — the D.C. Circuit Court — kept alive hopes that the US government will be forced to release footage of a hunger striking Guantánamo prisoner being violently removed from his cell and force-fed, when a three-judge panel — consisting of Chief Judge Merrick Garland, Judge Patricia Millett and Judge Robert Wilkins — refused to accept an appeal by the government arguing against the release of the videotapes.

When the court heard the case last month, Justice Department attorneys “argued that the courts cannot order evidence used in trial to be unsealed if it has been classified by the government,” as The Intercept described it. Justice Department lawyer Catherine Dorsey told the judges, “We don’t think there is a First Amendment right to classified documents.” The Intercept added that the judges “appeared skeptical. Chief Judge Merrick Garland characterized the government’s position as tantamount to claiming the court ‘has absolutely no authority’ to unseal evidence even if it’s clear the government’s bid to keep it secret is based on ‘irrationality’ or that it’s ‘hiding something.'”

The tapes are of Abu Wa’el Dhiab, a Syrian prisoner who spent last year challenging the government’s force-feeding program in the courts. Dhiab was freed in Uruguay in December, but his case continues. In June, Cori Crider, one of Dhiab’s lawyers at the London-based legal action charity Reprieve, said after viewing the videos, which have only to date been seen by the lawyers, “While I’m not allowed to discuss the contents of these videos, I can say that I had trouble sleeping after viewing them.”

Writing of the ruling, Reprieve noted that the court “ordered the Obama Administration to redact 12 hours of secret Guantánamo force-feeding footage in preparation for its public release, rejecting the Administration’s argument that not one single frame should be seen by the public.”

The release of the videotapes was ordered last October by District Judge Gladys Kessler, “following a First Amendment intervention from 16 US press organizations in the abuse case Dhiab v Obama,” as Reprieve described it. I wrote about Judge Kessler’s ruling at the time, in an article entitled, “In Ground-Breaking Ruling, US Judge Gladys Kessler Orders Guantánamo Force-Feeding Videos to be Made Public.”

Reprieve also noted, “The Obama Administration defied Judge Kessler’s order to prepare the videos for release, complaining that the process was too much work and insisting that revealing even one frame from the videos posed a national security risk.”

With no attempt made to deal with the redactions that Judge Kessler accepted as necessary — to protect the identity of military personnel, for example — the administration, as Reprieve described it, “took the case straight to D.C.’s federal Court of Appeals in an attempt to get the order overturned.”

However, as Reprieve described it, the appeals court “ruled that the Administration’s refusal to comply with the lower court’s order was wrong, and rejected its attempt to use the ‘burdensome’ task of redacting videos as a reason to circumvent the First Amendment.”

Reprieve added, “The Obama Administration must now comply with Judge Kessler’s original order to redact the videotapes to address national security concerns, and submit the redacted tapes to her court for reconsideration ahead of their release.”

Responding to the ruling, Alka Pradhan of Reprieve, who is one Abu Wa’el Dhiab’s attorneys in the US, said, “The Obama Administration’s defiance of Judge Kessler’s order suggests a basic contempt for both the court’s authority and our First Amendment rights, which the Circuit judges recognised.”

She added, “The Administration is fighting hard because once those videotapes are redacted, they are one step closer to public release — and the government is one step closer to being held accountable for their treatment of Guantánamo detainees. Yet the harder the Administration resists, the more they confirm that they have much wrongdoing to hide. It is time to stop running absurd arguments, and simply to do the right thing: expose and end the ongoing abuse of hunger-strikers at Guantánamo Bay.”

Providing further details, The Intercept — one of the 16 media organizations calling for the release of the footage, via its parent company First Look Media — noted that, unfortunately, “it’s still not clear when the public might actually see the videos.”

The Intercept noted that the appeals court “called the government’s appeal ‘premature,’ and declined to weigh in on the merits of releasing the videos.”

Because Judge Kessler’s order allowed for further negotiations over redactions, the judges wrote, “it is possible that appropriate redactions will limit the scope of, or perhaps eliminate altogether, the government’s concerns over release of the videotapes.”

The Intercept also noted that, “while that may seem like a setback for the Obama administration, the appeals court’s decision also noted that sending the case back to the district court would give that court a chance to consider more detailed government declarations about ‘the harm associated with the release of the videotapes.'”

In the meantime, the judges confirmed that the footage will stay sealed.

I hope the government now stops dragging its heels and gets to work on making the necessary redactions so the footage can be released. However, it is clear, from its delaying tactics, including this pointless appeal, that officials know how disturbing the videos are — and are trying whatever they can to worm their way out of their responsibility to show the world the reality of how the administration deals with hunger strikers.

To make matters worse, in many cases, as with Abu Wa’el Dhiab, those on a hunger strike were only refusing food — and were then being force-fed — because they had been cleared for release many years ago (mostly in 2009 by President Obama’s high-level, inter-agency Guantánamo Review Task Force), but were in despair about ever being released, and had decided that the only way their plight might get noticed was if they became hunger strikers.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

2 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    In my latest article I look at the recent decision by the appeals court in Washington D.C. not to accept an appeal by the government calling for the court to block the release of videos showing the violent cell extractions and brutal force-feeding in ‪‎Guantanamo‬ of Abu Wa’el Dhiab, a Syrian hunger striker released in December. The government must now proceed with preparing the videos for release, via redactions agreed with the judge in the lower court.

  2. Andy Worthington says...

    Thanks to everyone liking and sharing this. I do hope we’re going to get to see these tapes one of these days – a much-needed insight into the true horrors of Guantanamo.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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