After Four-Year Legal Struggle, Judges Support Government Claims That Videotapes of Force-Feeding at Guantánamo Must Remain Secret

2.4.17

A restraint chair at Guantanamo, used to force-feed prisoners (Photo by Jason Leopold).Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

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.”

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’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), 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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11 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Bad news from the appeals court in Washington, D.C., where judges have overturned a lower court decision, from 2015, requiring the government to release videotapes showing the force-feeding and violent cell extractions of prisoners at Guantanamo – in particular, Jihad Dhiab, a Syrian released in Uruguay after the case was first launched back in the summer of 2013, during the prison-wide hunger strike that was raging at that time. A very disappointing result.

  2. Andy Worthington says...

    Thanks to everyone liking and sharing this. There’s also a good report by Josh Gerstein for Politico, looking in more depth at different aspects of the judges’ opinions: http://www.politico.com/blogs/under-the-radar/2017/03/guantanamo-videos-case-federal-appeals-court-236752

  3. Andy Worthington says...

    Here’s a comment by Shelby Sullivan-Bennis of Reprieve: “The government so feared the shame that would come from the release of these videos, they limited even people with all the proper security clearances who represented other detainees from seeing them. These are people who would be unable to describe the videos in any detail to the world. As one of three defense counsel who has ever been allowed to view the video tapes, I can say that I am not remotely surprised that the government wants to hide their circus of horrors from the public’s scrutiny. I am shocked, however, the Circuit Court would allow the government to use the ‘secret’ classification to hide government-sanctioned abuses from the American people.”
    See: http://www.reprieve.org/judges-refuse-media-access-gitmo-force-feeding-tapes/

  4. Andy Worthington says...

    David Knopfler wrote:

    Oh FFS 🙁

  5. Andy Worthington says...

    An appropriate response, David. It’s very sad how the public is absolutely prohibited from seeing videos that, nearly three years ago, were seen by Dhiab’s lawyer, Cori Crider, who said, “I had trouble sleeping after viewing them”: http://www.andyworthington.co.uk/2014/06/24/i-had-trouble-sleeping-lawyer-says-after-viewing-guantanamo-force-feeding-videos/

  6. the talking dog says...

    Interesting that they managed to find a panel consisting of two septuagenarians and an octogenarian; Randolph, of course, never met a GTMO detainee abuse he didn’t like (a lot); Williams is a solid Republican, and you’d have hoped Rogers knew better (at least enough for a biting “concurrence” if not a dissent.) You’d have hoped the DC Cir. wouldn’t go into full bunker mode, but that would clearly be too much to ask. Their sentiment, I suppose, is that amidst the daily fire-hose of outrageousness coming from President “Orange is the New White,” the last thing they want to do is highlight the “excesses” committed by prior Administrations. At over 15 years on, there are very few students in university (or even older law students) who even remember the “before 9-11/before GTMO” world. The hope is that by denying the public the most basic facts (as bolstered by video images, which seems to be the only way anyone believes anything anymore, and perhaps not even then), the total normalizing of indefinite detention, torture, kangaroo courts along with the demonization and denial of the most basic human dignities can proceed unabated.

    Good times. For those who have been lauding the courts as a check on executive excess, I’ll just say that it’s most fortunate for those opposing the Trump Admin.’s bigoted Muslim travel ban that the District of Columbia itself does not house an international civilian airport.

  7. Andy Worthington says...

    Yes, all very sadly true, TD. In recent years the D.C. Circuit Court had somewhat atoned for its behavior regarding the Guantanamo habeas cases – from 2009 to 2011, shamefully reinterpreting the Supreme Court’s 2008 ruling in Boumediene v. Bush to gut habeas of all meaning for the Guantanamo prisoners – with positive decisions overturning rulings in the dreadfully ill-conceived military commission trial system, but now, yes, here they are back in their old biased glory, led by Randolph, who, as you so aptly put it, “never met a GTMO detainee abuse he didn’t like (a lot).”
    What’s particularly disturbing to realize, as we look back on the last 15+ years of the law being rewritten, is, as you also note, that “there are very few students in university (or even older law students) who even remember the ‘before 9-11/before GTMO’ world — something I have reason to think about when I glance – ever so occasionally – at the pages of Lawfare and see the thumbnails of fresh-faced young graduates writing oh so seriously and diligently about post-9/11 policy and processes that they are, presumably, not encouraged to take a fundamentally critical overview of.

  8. Andy Worthington says...

    David Knopfler wrote, in response to 5, above:

    Andy, I bet… Could anyone seriously believe this isn’t about defending the US Government from complete shaming embarrassment. If they’d shut the bloody place down as they properly should have the minute the media got wind of what the Bush/Cheney admin’ had been up to there and exposed it, we’d not still be digging around in the dogs-dinner legal entrails of their endless inability to tidy this up and operate within the norms of international law. Everybody can see the problem was that their behaviour operated outside the norms of both the rules of military engagement and civil rights in civilian cases. This is about the refusal of the US to put right the mess they made even after an embarrassed President Obama conceded “we tortured some folks” https://www.youtube.com/watch?v=QBLNohqquRk

  9. Andy Worthington says...

    Very well said, David. Unfortunately, no one in a position of power and authority – and this includes Obama, of course – cared enough about the norms of civilized behavior to prioritize closing the prison for good. And while we’ve had detailed analysis of the CIA’s torture program over the years (not least in the Senate report) and of Rumsfeld’s version at Guantanamo (not least via Mohamedou Ould Slahi’s Guantanamo Diary), most people aren’t aware of how open-ended imprisonment – no charge, no trial, no end date – is also a form of torture.

  10. Andy Worthington says...

    Rose Ann Bellotti wrote:

    Disgusting…..

  11. Andy Worthington says...

    Yes, it really is, Rose. I’m quite shocked to realize that lawyers I know have seen the videos but are not allowed to disclose in any detail what they’ve seen. The tentacles of censorship regarding Guantanamo really do reach out far and wide.

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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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