Judge Kessler Orders Release of Guantanamo Force-Feeding Videos
An important development today in Dhiab v. Obama: over the government's objections, D.C. District Court Judge Gladys Kessler has ordered the unsealing of secret videos that show Guantanamo Bay prisoner Abu Wa'el Dhiab being forcibly extracted from his cell and force-fed. Back in June, a number of media outlets, including the New York Times and the Associated Press, sought to unseal twenty-eight videotapes of detainee Abu Wa'el Dhiab's force-feedings.
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An important development today in Dhiab v. Obama: over the government's objections, D.C. District Court Judge Gladys Kessler has ordered the unsealing of secret videos that show Guantanamo Bay prisoner Abu Wa'el Dhiab being forcibly extracted from his cell and force-fed. Back in June, a number of media outlets, including the New York Times and the Associated Press, sought to unseal twenty-eight videotapes of detainee Abu Wa'el Dhiab's force-feedings. Judge Kessler's order grants the motion with the following modifications:
- all identifiers of individuals in the videotapes (i.e., faces other than Mr. Dhiab' s, voices, names, etc.) shall be redacted;
- counsel shall work cooperatively, as they have throughout this litigation, to ensure that all necessary redactions of the videotapes shall be made so that they may then be entered on the public docket;
- the videotapes shall remain sealed until all such redactions are made.
In her accompanying opinion, Judge Kessler acknowledges that no court has ever ordered the disclosure of classified information over the government's opposition in any case involving Guantanamo detainees, but declares that the courts have the discretion and the responsibility to do so where warranted. She goes on to apply the two-prong "experience and logic" test from the 1986 Supreme Court case Press-Enterprise Co. v. Superior Court, 478 U.S. 1, to determine whether the judicial records are subject to the public's right of access: the first prong asks whether there is a history of access to the proceeding; the second prong turns on whether public access "plays a significant positive role in the functioning of the particular process in question." A First Amendment public access claim must meet both prongs to succeed.
To defeat an established public right of access, the party seeking closure must show that disclosure "give rise to a substantial probability of harm to a compelling interest." The government put forth five arguments for why the videotapes' release would give rise to such a probability of harm: (1) the videos could aid the development of countermeasures to forcible extractions, (2) depictions of the camp infrastructure could allow detainees or others to disrupt the camp, (3) detainees might deliberately try to behave in ways that necessitate more use of forcible extractions, (4) the videos could "inflame Muslim sensitivites overseas" or be used for propaganda, and (5) the release could subject Dhiab (who supports disclosure) to "public curiosity" and "affect the practice of other states."
In no uncertain terms, the court rejects the government's arguments as unpersuasive, criticizing the justifications for closure contained in Rear Admiral Richard W. Butler's Declaration on the grounds that they are "unacceptably vague, speculative, lack specificity, or are just plain implausible."
Background notes: Dhiab v. Obama is the habeas case of a Syrian-born Guantanamo detainee who was cleared for release by the Obama administration back in 2009. On July 30, 2013, Dhiab was one of several hunger-striking detainees to move to enjoin the government from continued force-feedings. On February 11, 2014, the D.C. Circuit held that the courts have subject matter jurisdiction to hear detainees' conditions-of-confinement challenges, prompting another motion from Dhiab on April 18, 2014 to prevent further force-feedings and forcible extractions from his cell.
Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.
