When the Government’s Secrecy Arguments Are Not Blindly Accepted by Judges
A Guantanamo Bay prisoner, Abu Wa’el Dhiab, who has been force-fed and subjected to rough cell extractions prior to such feeding, is finally getting the opportunity to have his case challenging his treatment heard in court today. Remarkably, the hearing comes after two major victories, where the judge agreed the legal proceeding should be open to the public and videos of his forced-feeding should be unsealed.
Dhiab is Syrian and has been imprisoned at Guantanamo since 2002. He was cleared for release in 2009 by President Barack Obama’s own review task force. He remains in indefinite detention and has protested his confinement by engaging in a hunger strike, but the government has worked to break this protest by subjecting him to regular forced-feeding. So, Dhiab, who is being represented by the human rights organization, Reprieve, has sought a preliminary injunction to halt the forced-feeding as well as the forcible cell extractions (FCEs).
Judge Gladys Kessler of the United States District Court in the District of Columbia ruled on October 2 that the Obama administration’s last-minute effort to close the hearing was “deeply troubling.”
“It is no secret that Mr. Dhiab’s case has received a good deal of publicity in the press,” Kessler argued. “With such a long-standing and ongoing public interest at stake, it would be particularly egregious to bar the public from observing the credibility of live witnesses, the substance of their testimony, whether proper procedures are being followed, and whether the court is treating all participants fairly.”
She followed that decision with an even more significant decision on October 3.
“The First Amendment’s express guarantees of free speech, freedom of the press, and the right to petition the government carry with them an implicit right of public access to particular government information,” Kessler declared. She also added, “History teaches us how easily the specter of a threat to ‘national security’ may be used to justify a wide variety of repressive government actions. A blind acceptance by the courts of the government’s insistence on the need for secrecy, without notice to others, without argument, and without a statement of reasons, would impermissibly compromise the independence of the judiciary and open the door to possible abuse.”
Kessler rebutted almost every single secrecy argument put forward by the government and found those arguments to be “unacceptably vague, speculative,” lacking in “specificity” or just “plain implausible.”
She also chose not to do what many other judges have done and show deference to the government when faced with the suggestion that the videos could be used by terrorists for their propaganda.
“As we have seen in recent years, terrorists of all stripes and ideologies have long been attempting to create anti-American sentiment abroad by using publications as recruiting material for new members,” Kessler wrote. “However, courts have long rejected arguments to abridge the First Amendment that would give rise to a ‘heckler’s veto.’”
The First Amendment cannot be defeated because “rights exercised might offend a hostile mob,” she further argued, while mentioning a similar case, ACLU v. Department of Defense, which involved the release of photos of prisoner abuse at Abu Ghraib. The court understood in that case, “Terrorists do not need pretexts for their barbarism.”
However, detainee abuse photos were never released because, in 2009, Prime Minister Nouri al-Maliki asked President Obama not to release photographs of detainees abuse, for “fear of the consequences.” Secretary of Defense Robert Gates filed a certification to prevent the release of photographs and the court upheld that certification. The Protected National Security Documents Act was passed to amend the Freedom of Information Act (FOIA) to “provide that photographs could be made exempt from disclosure for a three-year certification by the Secretary of Defense” if “publication would endanger American lives.”
Essentially, the government had a “heckler’s veto” codified into law to diminish the ability of citizens to obtain certain documents on sensitive matters through FOIA. (The photos are still secret and a judge is reviewing the government’s renewed certification to determine if it was “sufficient” enough to keep the photos concealed from the public.)
In early September, Judge Jose Cabranes in the Second Circuit Court of Appeals accepted the government’s secrecy argument that video and photos of high-profile Guantanamo Bay prisoner Mohammed al-Qahtani, who is known to have been tortured and abused, would be used by terrorist groups to incite anti-American violence if they were released.
The Center for Constitutional Rights (CCR), like media organizations in Dhiab’s case, sought the disclosure of 58 FBI videos “depicting Qahtani’s activities in his cell and his interactions” with Defense Department personnel. They also requested the disclosure of videos showing “forced cell extractions,” where Qahtani was likely removed from his cell in an abusive or aggressive manner, two videos showing “document intelligence debriefings” and “six mugshots” of Qahtani.
The appeals court embraced US Central Command Chief of Staff Karl Horst’s entire declaration to the court.
Release of the records, Horst argued, would endanger “US military personnel, diplomats and aid workers serving in Afghanistan and elsewhere” and aid the “recruitment and financing of extremist and insurgent groups” because “enemy forces in Afghanistan” and elsewhere “have previously used videos and photographs [particularly of US forces interacting with detainees] out of context to incite the civilian population and influence government officials.” For example, the media published images in 2004 “relating to allegations of abuse of Iraqi detainees” (i.e. Abu Ghraib) and media reported in 2005 on “alleged incidents of mishandling of the Koran at Guantanamo.”
Horst added, “[T]he subject of US detainee operations in Iraq, Afghanistan, and at [Guantanamo] is extremely sensitive with the host nations and governments whose nationals we detain.” Additionally, releasing information ” would facilitate the enemy’s ability to conduct information operations and could be used to increase anti‐American sentiment,” especially since the images “could be manipulated to show greater mistreatment than actually occurred, or change the chronology of actual events.”
Judges in this case did not attempt to approach the issue in the same reasonable and objective manner as Kessler by reflecting on what was already in the public domain and what remained secret. As attorney Larry Lustberg, who argued the case put it, “In effect, the court has embraced a rule that allows the government to use its own human rights abuses as a justification for concealing evidence of that misconduct from the public.”
That is exactly what Kessler refused to permit in Dhiab’s case. The government claimed that videos would “raise serious questions by United States allies and partners and others in the international community as to whether the United States is acting in accordance” with “longstanding policy to protect detainees from public curiosity, consistent with the Geneva Conventions.” She found this to basically be a way to undermine protections in the Geneva Conventions.
“The government’s claim, if accepted, would turn the Third Geneva Convention on its head. Rather than a source of rights to humane treatment, Article 13 would become a means to shield from public view treatment that Mr. Dhiab (and undoubtedly other detainees) believe to be inhumane.”
Nothing about the ease in which Kessler was able to unravel and rebut the government’s arguments in Dhiab’s case is extraordinary. Such arguments are put forward quite regularly to block transparency. These type of arguments also probably form the basis of claims of state secrets privilege, which are made privately to courts to prevent cases involving victims of the global security state from moving forward (i.e. torture victims, drone victims, warrantless wiretapping victims, etc).
What is extraordinary is that Kessler has found herself motivated to defend the First Amendment and ensure that, at least in terms of challenging the conditions of his confinement, Dhiab is given the due process he deserves. It is the kind of due process that is absent from Periodic Review Board proceedings, where Guantanamo Bay prisoners are brought before a tribunal and supposedly given an opportunity to challenge their continued detention.
There is an ideological doctrine that underpins government efforts to close courtrooms and keep the public in the dark on how Guantanamo Bay prisoners are being cruelly and inhumanely treated. It only becomes accepted truth if judges choose deference and do not bother to weigh facts and consider how this doctrine threatens basic democratic values.
When they have the courage to methodically deconstruct the government’s claims, as Kessler did, they quickly disintegrate. It then becomes possible for victims of the security state and citizens concerned about the shadow government, which has risen in the past decade, to challenge some of the government’s most pernicious activity.