Graphic videotapes of a Guantanamo Bay detainee being removed from his cell and force-fed will remain secret for some time to come, an appellate court hearing made clear Friday.
With the Obama administration still resisting any release, and new fights ahead over how much gets redacted even if the 28 tapes are made public, judges and attorneys on Friday seemed to agree that a potential showtime is still a long way away.
“There’s lots left to be done here,” attorney Jon B. Eisenberg told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. “These videotapes will not see the light of day until the last appeals court (has ruled).”
Underscoring the long road ahead, Chief Judge Merrick Garland asked Eisenberg whether he agreed “there will be additional litigation.”
“Oh, yes,” Eisenberg said.
Eisenberg is one of the attorneys representing Abu Wa’el Dhiab, also known as Jihad Dhiab. Dhiab is a Syria native, a father of three and a former honey salesman who was seized in Pakistan and sent to Guantanamo Bay in 2002.
The Obama administration’s Guantanamo Review Task Force cleared Dhiab for release in 2009, but he remained incarcerated until relatively recently. Dhiab and other protesting detainees initiated a hunger strike in early 2013, prompting authorities to begin force-feeding them.
“I move my head when they poke me with the tube,” Dhiab told his attorneys, according to a 2014 court declaration. “I can’t help it. It hurts too much. Then they hold my head, and it only gets worse. After that I start to resist because I have severe pain in my throat.”
The 43-year-old Dhiab was released last December and now lives in Uruguay with five other former Guantanamo Bay detainees. His lawsuit that formerly sought to stop the force-feedings, brought by Eisenberg and the human rights advocacy group Reprieve, now focuses on making the videotapes public.
More than a dozen news organizations, including McClatchy, The New York Times and The Washington Post, intervened in the case to press for release of the videotapes, which span about 11 hours.
“It’s not just a matter of Mr. Dhiab’s rights,” attorney David A. Schulz, representing the media organizations, said Friday. “There is a public right that is at stake here. . . . The public has a right to know what happens in court proceedings.”
The Obama administration counters that national security concerns trump the general right of public access.
“We don’t think there is a First Amendment right to classified documents,” Justice Department attorney Catherine Dorsey told the panel, “and that is the end of the matter.”
In October, U.S. District Judge Gladys Kessler ordered public release of the tapes once certain redactions had been made to protect individual identities.
“It strains credulity to conclude that release of these videos has a substantial probability of causing the harm the government predicts,” Kessler declared in her Oct. 3 decision.
The hour-long oral argument Friday morning essentially raised the curtain on, but came nowhere near resolving, the fundamental legal conflict between national security claims and the public’s right of access. Through their questions, several of the judges emphasized some of the competing arguments that will come up again.
Repeatedly, for instance, a skeptical-sounding Garland pressed Dorsey on how much deference the government expected to get for its classification decisions.
“Your position is that the court has absolutely no authority (to order disclosure), even if the government is irrational?” Garland asked, pointedly raising a scenario in which the government classifies a copy of the Gettysburg Address.
But Garland’s colleague and fellow Democratic appointee, Judge Patricia Ann Millett, noted that a legal rule permitting access to too much information could put trade secrets, attorney-client communications and other sensitive matters at risk of exposure.
“It’s never been held to be an unqualified right of access,” Millett said.
The fundamental First Amendment question, though, may well wait, Garland noted several times Friday, until the government and Dhiab’s attorneys work out their inevitable differences over redactions.