US Judge Orders Release of Guantánamo Force-Feeding Tapes, Condemns Government Delays

12.7.15

Former Guantanamo prisoner Abu Wa'el Dhiab after his release (in Uruguay in December 2014). This is a screen shot from a TV broadcast in Argentina, where Mr. Dhiab travelled in February, to call for the government to offer new homes to other Guantanamo prisoners.I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Sick of delaying tactics, a US federal court judge has ordered the government to stop wasting time with “frivolous” appeals against her rulings, and to release videotapes showing a Guantánamo prisoner being brutally force-fed.

On October 3 last year, in the District Court in Washington D.C., Judge Gladys Kessler ordered the government to prepare for public release 32 videotapes of a Guantánamo prisoner, Abu Wa’el Dhiab, being dragged from his cell and force-fed. The tapes contained 11 hours of footage in total, and, as I explained at the time, Judge Kessler responded to the government’s concerns about the need for anonymity for US personnel by ordering them to be “redacted for ‘all identifiers of individuals’ other than Mr. Dhiab.”

That was over nine months ago, and on Friday (July 10), Judge Kessler ordered the government to “complete all national security-related redactions to the first eight tapes — which show Abu Wa’el Dhiab being forcibly removed from his cell and tube-fed — by August 31, and to complete other key redactions by September 30,” as Mr. Dhiab’s lawyers at Reprieve explained in a press release.

Reprieve added, “The tapes were first filed to court as classified evidence in a legal challenge to prison conditions at Guantánamo Bay, Dhiab v Obama. 16 press organizations, including [the] Associated Press, the Washington Post and the New York Times, intervened seeking the videos’ release to the public on First Amendment grounds. Judge Kessler ordered them to be released; the Obama Administration then appealed in what Judge Kessler called ‘as frivolous an appeal as I’ve ever seen.'”

A month ago, a panel of three appeals court judges turned down that appeal, and in a hearing on Thursday (July 9), Judge Kessler made clear her frustration with what Reprieve called the government’s “protracted delaying tactics” in the case. Not only is it over nine months since Judge Kessler’s order, but it is over a year since the 16 media organizations first sought the public release of the videotapes, and two years since Dhiab — who was finally freed from Guantánamo and resettled in Uruguay in Decemberfirst sought to have restrictions imposed on the authorities’ claimed right to force-feed him as they wished, without any outside scrutiny. He has stated that he was subjected to force-feeding about 1,300 times during his imprisonment.

As Reprieve explained, in court on Thursday, lawyers for the Justice Department “made two main points, which found little favor with Judge Kessler.” Firstly, after nine months, they had the nerve to ask the court “to reconsider its prior order to release the videotapes,” and secondly they “claimed it would take several more months for the Obama Administration to redact any tapes,” contradicting the government’s “previous assessment that they would need five weeks to redact all 32 tapes.”

When Andrew Warden of the Justice Department “began asserting that it would take until the end of August to prepare even 8 of 32 tapes,” Judge Kessler “interjected very swiftly,” and stated, “No, that’s not how we are going to it. The Government has made it possible to delay this for, according to my count, eight and a half months. Eight and a half months. The Government’s appeal was as frivolous an appeal as I have ever seen. Of course the Court of Appeals didn’t have jurisdiction. The minute I heard you were going to go up [to the Court of Appeals] I remember then talking to my law clerk saying, ‘I don’t understand this, the case is still on my docket. The Court of Appeals doesn’t have jurisdiction now.’ But that’s neither here nor there.”

Making clear that “she was not going to tolerate excessive further delay on the part of the Justice Department,” Judge Kessler added, “We are going to move as fast as we can.”

The Intercept reported that the following exchanges had taken place in the courtroom. David Schulz, attorney for the media organizations, said of the government’s proposed timetable, “This whole thing is a ploy. It’s delay, delay, delay.”

Eric Lewis, counsel for Mr. Dhiab, was “incredulous,” as The Intercept put it. “Last year, they could do 32 tapes in five weeks,” he said. “This year, they can do 8 tapes in seven weeks.”

The Intercept added that the government’s response was to pin the delay “on the Pentagon’s video editors, and claiming that the process has ‘proven to be much more burdensome and time-consuming.'” Andrew Warden told the court, “This is a very difficult project that is to some degree unprecedented,” adding, “there are real practical and technological burdens with the redaction process.” He explained, “There are 30 frames per second, and the video editors have to go frame by frame to redact names, faces and other personally-identifiable information.

Dhiab’s attorney “responded with skepticism,” as The Intercept put it. Eric Lewis said, “Video editors do that all the time. It’s a matter of commitment and resources.” As a compromise, Eric Lewis suggested, “rather than putting all 32 tapes through editing, which will be painfully time-consuming based on the government’s track record thus far, that only an hour-and-a-half long compilation video go through the redaction process and be released to the public.” Lewis said, “We’re looking for a way to break though this and make up for a great deal of lost time.”

Prior to the ruling, Cori Crider, Mr. Dhiab’s attorney at Reprieve, said, “The Defense Department has been playing stall ball from the second we forced them to turn over this grisly secret footage, and they remain determined to keep every second of it out of the hands of the US media. Their motive is obvious: if Americans were permitted to see the truth in these tapes, the conversation about Guantánamo would change overnight.”

Afterwards, she said, “This is a great win for the US press, and for the First Amendment. The Obama Administration has been kicking and screaming to avoid processing even one minute of this footage, and never wanted to have to give a specific reason for keeping it secret. That is because the real reason for trying to hide Mr. Dhiab’s face is that what he suffered is a scandal and an embarrassment to the Administration that allowed it.

She added, “The Government has been rightly chided by the judge and now will be made to give real reasons for every frame of this footage that they want to keep hidden from the public. Images of a suffering detainee are matters of public importance and should no more be suppressed than those of Abu Ghraib, Eric Garner or Rodney King. An Administration truly committed to transparency would release the tapes forthwith. That’s why the US press is intervening in this case, and the courts are standing firm to preserve our right to see what is being done in our name.”

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, whose debut album, ‘Love and War,’ was released in July 2015). 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.

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10 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here, cross-posted from Close Guantanamo, is my latest article, looking at an extremely important ruling by Judge Gladys Kessler, who has ordered the government, after nine months of unacceptable delays, to release – by August 31 – videotapes of former ‪Guantanamo‬ prisoner Abu Wa’el Dhiab being dragged from his cell and violently force-fed. When the tapes were seen by his lawyer Cori Crider last May, she said, “I had trouble sleeping after viewing them.”

  2. Andy Worthington says...

    Angela Gipple wrote:

    thank you Judge Kessler!! xoa

  3. Andy Worthington says...

    Thanks, Angela. Good to hear from you – and yes, Judge Kessler has been doing important work!

  4. Andy Worthington says...

    Angela Gipple wrote:

    this is long overdue. my thanks to you and to her.

  5. Andy Worthington says...

    Well, let’s hope the government can’t worm its way out of it again, Angela. It’s my opinion that the delays confirm what we know – that what’s revealed in the tapes must be profoundly shocking.

  6. Anna says...

    Great that Judge Kessler continues to be undeterred by political harassment!
    What I do not understand, is why the government is not simply told to release the tapes one by one as their make-up job is finished, rather than waiting until a whole bunch is ready. I’m pretty sure that even one would cause a serious stir.

    In the meantime the Israeli government is preparing a law which will allow them to inflict force feeding on Palestinian prisoners on hunger strike …

    On the ‘bright’ side, there’s a new, damning report about the American Psychologists Association’s role in condoning and even facilitating GWOT torture and at least some heads are starting to roll there. Those who have seen Martha Davis’ “Doctors of the Dark Side” will find a lot of familiar names – both positive and negative – in the report, which can be downloaded: http://g4.psychcentral.com/blog/wp-content/uploads/2015/07/APA-FINAL-Report-7.2.15.pdf.

    PS: Great you made a CD and much looking forward to hear The Four Fathers!
    Incidentally a fitting follow up of my late childhood’s Brothers Four! Not quite the same universe, although they did have a song that you could possibly term ‘early feminist’, about an amourous Frog whose unwanted attentions during the midnight show at the Coconut Grove were rebuked with a powerful punch line by Molly Mouse, the hat check girl in that establishment.
    https://www.youtube.com/watch?v=GRmk_nKfn9Q
    Enjoy it, heaven knows we all need some innocent distraction now and then :-).

  7. Andy Worthington says...

    Hi Anna,
    Great to hear from you. You make an important point about Judge Kessler. Given all the government’s delays, it would indeed make sense for even one tape to be released, given that we can infer that even a short tape will be so harrowing that it will send shock waves around the world. How well the US authorities have protected themselves to date. In a time where the power of the word struggles to survive against images and film, not a single photo of abuse at Guantanamo has ever surfaced.
    I hope this is a defining moment in Guantanamo’s history.
    I hadn’t heard that distressing news from Israel, but nothing is surprising when it comes to the Israeli government’s brutal treatment of Palestinians, and there are, of course, always connections between the definition of and treatment of prisoners in the “war on terror” and in Israel, which, in 2002, passed and “Incarceration of Unlawful Combatants Law,” with its echoes of the “enemy combatants” in the “war on terror.”
    I’m planning to write soon about the APA revelations. That’s a big story – and it’s good to know that Martha’s work – and the work of everyone who didn’t give up on exposing the truth – has paid off in the end. As always, I hope the focus for accountability will also end up including the Bush administration officials, up to and including George W. Bush, Dick Cheney and many, many others, who authorized the program.
    And finally – for now – The Four Fathers. Yes, I’m delighted to have made an album – and to be in a band! It’s the long-delayed fulfilment of a long-cherished dream – and it’s always good to follow your dreams!

  8. Anna says...

    There was more sad news yesterday from the collateral fringes of GWOT : Thailand sent over 100 Uighurs back to China. http://www.aljazeera.com/programmes/insidestory/2015/07/uighurs-firing-line-china-150712202212689.html
    As ‘proof’ of Uighur involvement in terrorism, the Chinese representative in this programme triumphantly claims some had been ‘arrested by the US army in Afghanistan and sent to Guantanamo’, which is definitely not the version of facts that I seem to remember …

    China has clamped down on Uighurs and other minorities since times immemorial, but invoking the US GWOT to support this, is a tale telling new twist.

  9. Andy Worthington says...

    Sad news about the Uighurs, Anna. I’m not surprised the UN refugee agency has condemned the deportations as a “flagrant violation of international law.” No Uighur should be forcibly returned to China when accused of terrorism, as even the Bush administration conceded.
    It is, as you rightly point out, disgraceful for the Chinese government to claim that a “proof” of Uighur “terrorism” is that some Uighurs were “arrested by the US army in Afghanistan and sent to Guantanamo.” They were welcomed by Pakistani villagers, who then betrayed them – or sold them – to the Pakistani military, who then handed them over – or sold them – to the US. And of course being sent to Guantanamo proves nothing about one’s actions or intentions.

  10. Andy Worthington says...

    UPDATE: This was what happened by the August 31 deadline, as reported in the Guardian, although the whole story is still, sadly, rather inconclusive. I meant to write about it, but didn’t have the time.

    Guantánamo force-feeding videos released to US court in redacted form
    By Spencer Ackerman, the Guardian, September 14, 2015

    The US government has provided a court with redacted versions of eight videotapes showing forced feeding at Guantánamo Bay that detainees describe as torture.

    Images on the tapes depict medical and security teams at Guantánamo restraining and feeding detainee Abu Wa’el Dhiab against his will. Dhiab has since been released.

    Lawyers for Dhiab and news organizations including the Guardian are attempting to get the videotapes released. If they succeed, the version of the tapes the Department of Justice (DoJ) has turned over is likely to be what the public will see.

    Although the DoJ continues to oppose public release of all 32 force-feeding videos, Dhiab’s attorneys said the new provision of the tapes – from which identifying information about Guantánamo personnel has been removed – indicates that national security would not be harmed by their disclosure.

    In October 2014, federal judge Gladys Kessler ordered the disclosure of the eight tapes, and the DoJ finally provided versions of them to her under seal on 31 August, according to court filings.

    The previous month, the department had asked Kessler to “reconsider” her order to disclose the Guantánamo tapes – a move which, if successful, would in effect restart the entire case.

    The case began as part of Dhiab’s challenge to his 12-year Guantanamo detention without charge, and included a challenge to the tube feedings as an abusive and punitive measure, rather than the medical necessity claimed by the Obama administration.

    Dhiab spent much of his detention on a protest hunger strike. In December 2014, the Obama administration released him to Uruguay, where he remains.

    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.”

    Although the US has provided Kessler with sanitized versions of eight of the 32 videos, it continues to resist their release to the public. Next month, attorneys for the government and for Dhiab are expected to discuss the manner of their disclosure with Kessler, but the DoJ still has legal options that can at minimum delay the release.

    In a 22 July filing, the then commander at the Guantánamo detention facility said that if the tapes were released, the information on them 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”.

    Releasing the tapes beyond Guantánamo, rear admiral Richard Butler told the court, “would 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”.

    The DoJ declined to comment.

    Crider agreed that the government needed to protect its personnel through redacting the videos but said it should not be permitted to cover up “what is really a national embarrassment”.

    “Those who wish us harm have no dearth of material for their propaganda already – and where does the logic of censorship end?” she asked. “Suppressing the Eric Garner footage? The Rodney King tapes? The Abu Ghraib photos? Guantánamo’s continued existence is one of the biggest recruiting sergeants of them all.”

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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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