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Videos of Force-Feeding at Guantánamo Will Stay Secret, Court Rules

The military is allowed to keep secret at least 28 videotapes showing guards at the Guantánamo Bay wartime prison extracting a hunger-striking detainee from his cell and then force-feeding him, a federal appeals court ruled on Friday.

After the tapes were made part of the court record in a lawsuit challenging the military's force-feeding procedures, a coalition of 16 news organizations, including The New York Times, petitioned the court to unseal them. Judge Gladys Kessler of Federal District Court in Washington had ruled that the government must disclose them.

But the Obama administration appealed, and on Friday, a three-judge panel on the Court of Appeals for the District of Columbia Circuit overturned her ruling.

The panel 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 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.

But the government argued that the videos could be used in propaganda to incite violence against Americans and to recruit terrorists. Judge A. Raymond Randolph agreed, writing that "images are more provocative than written or verbal descriptions."

"Extremists have used Guantánamo Bay imagery in their propaganda and in carrying out attacks on Americans," Judge Randolph wrote. "For example, the Islamic State beheaded American journalists wearing orange jumpsuits commonly associated with Guantánamo Bay detainees."

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. And, it said, if militants could study the guards' techniques as shown on the videos, they might develop countermeasures.

By contrast, at the district court level, 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." But the appellate panel ruled that she had erred.

The other two judges on the appeals panel were Judge Judith Ann Wilson Rogers, an appointee of President Bill Clinton, and Judge Stephen F. Williams, an appointee of President Ronald Reagan. Judge Randolph was appointed by the first President George Bush.

The Justice Department declined to comment. David A. Schulz, a lawyer representing the news media coalition, said it had not yet decided whether to appeal.

"The only thing that all three judges agreed upon is that the government had demonstrated a compelling interest in keeping the videotape evidence secret," he said. "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, a lawyer for the former detainee who is depicted in the videotapes, expressed disappointment in the ruling. "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," Mr. Eisenberg said.

The fight is residual fallout from a major hunger strike protest that swept the Guantánamo cellblocks in 2013, shortly after President Barack Obama began his second term.

The detainees were responding in part to rumors that guards had mishandled a Quran while searching cells for contraband, according to detainees' lawyers. The military denied that such improper handling had occurred.

But both sides had agreed that the underlying cause of the hunger strike was mounting despair that the detainees would ever go home. At that point it had been more than two years since any lower-level detainee had been transferred.

In response to the mass protest, Mr. Obama revived his dormant push to transfer lower-level detainees. Many of them had been recommended for release years earlier but remained stranded because they came from unstable countries like Yemen.

But Mr. Obama also endorsed force-feeding to prevent protesting detainees from dying. The procedure involves strapping a detainee into a restraint chair and inserting a tube through his nose, through which a nutritional supplement is poured into his stomach.

Eventually, most of the hunger strikers resumed eating, but a few hard-core protesters continued to refuse to eat. Among them was Jihad Ahmed Mujstafa Diyab, a Syrian man who was held for about 12 years without trial until his transfer to Uruguay in late 2014.

Mr. Diyab has had a troubled time resettling in Uruguay, saying he wants to leave it and join his family elsewhere. He disappeared for a period last year, raising alarms; it turned out he had taken a bus to Venezuela, which sent him back to Uruguay. He has also at times carried out a hunger strike in Uruguay to protest being kept there.

[Source: By Charlie Savage, The New York Times, Washington, 31Mar17]

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small logoThis document has been published on 03Apr17 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.