WASHINGTON -- A federal judge on Tuesday rejected the latest bid from the Obama administration to reconsider a prior ruling requiring the government to release 32 classified videotapes showing former Guantanamo prisoner Abu Wa'el Dhiab being force-fed and forcibly extracted from his prison cell.
The initial decision in favor of the 16 media companies petitioning for the secret videos to be unsealed was issued just over a year ago. For the past 12 months, Obama administration lawyers have tried a number of legal maneuvers to stop the release of the videotapes -- arguing at one point that the hearings should be closed to the public.
Highlighting the public’s First Amendment right of access to civil proceedings, the court once again dismissed the government’s attempts to keep the tapes from being released, calling some of the arguments “repetitive, speculative, and extremely vague.”
“Transparency about the actions of our government -- including the judiciary -- is one of the cornerstones of our democracy,” wrote U.S. District Judge Gladys Kessler, who sits in the District Court for the District of Columbia. “This Court has found that the Government's justifications for barring the American public from seeing the videotapes are not sufficiently rational and plausible to justify barring release of the videotapes.”
The release of tapes showing a routine practice at the Guantanamo Bay prison facility, the government has argued, would endanger U.S. national security by inspiring groups like ISIS to engage in revenge attacks and by helping current detainees to learn how to counter force-feeding and forced cell-extraction techniques.
The judge flatly rejected part of that argument, pointing to congressional testimony from Gen. John Kelly, head of the U.S. Southern Command that oversees the prison, noting that groups like ISIS “don’t need Guantanamo Bay to hate us.”
Citing “well-established precedent” in national security matters, Obama administration lawyers had implored Kessler to defer to the executive branch on issues of classification.
Kessler was not convinced. In her ruling on Tuesday, she accused the Pentagon of acting above the law: “What the Government is really saying is that its classification system trumps the decisions of the federal courts as to the public’s access to official court records; in other words, the Executive Branch (in this case, the Military) purports to be a law unto itself.”
The district judge also slammed the government’s third argument -- that the release of the videos would violate the privacy of Dhiab, the former Guantanamo detainee. Describing the line of logic as “flat out unbelievable,” Kessler wrote, “Mr. Dhiab has already clearly stated, in no uncertain terms, that ‘I want Americans to see what is going on at the prison today, so they will understand why we are hunger-striking, and why the prison should be closed. If the American people stand for freedom, they should watch these tapes. If they truly believe in human rights, they need to see these tapes.’”
In rejecting the Obama administration’s bid to keep the videos out of public view, Kessler emphasized the public’s right to information about detention practices used at Guantanamo Bay against individuals who have never been charged with a crime, which she described as a “burning controversial issue in this country.”
Kessler closed her decision by citing the 1971 Supreme Court decision that allowed major newspapers to publish the Pentagon Papers.
“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may be in an enlightened citizenry -- in an informed and critical public opinion which alone can ... protect the values of democratic government,” Kessler wrote, quoting the opinion of former Justice Potter Stewart.
Dhiab, who was cleared for release in 2009, was one of six Guantanamo prisoners transferred to Uruguay last December. Shortly before he was released, the 6-foot-5 Dhiab weighed 152 pounds -- 27.9 pounds down from when he was picked up in Pakistan in 2002.
Dhiab first refused food in 2007 and has since become one of the most visible faces of Guantanamo Bay's hunger strike movement, which in 2013, included more than 100 prisoners. Likely in response to the flurry of media attention, the Pentagon stopped releasing information about the number of hunger strikes in December 2013.
If the Obama administration insists on opposing the release of the videos, its next step would be to appeal Kessler's decision to the U.S. Court of Appeals for the D.C. Circuit -- which the judge anticipated in her ruling when she noted “the significance and complexity of the issues” at stake in this case.
Read Kessler’s full opinion here:
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