Federal Judge Challenges Obama’s Use of Executive Order to Hide Gitmo Videos

The Obama Administration is invoking an executive order on classified information in order to prevent the release of videos that show forced-feeding of a former detainee of the Guantanamo Bay military prison.

In October 2014, Federal Judge Gladys Kessler ruled that the Obama Administration must unseal 32 video tapes related to the force-feeding of Abu Wa’el Dhiab, who was then being held without charge at the prison. Dhiab was kidnapped by the Pakistani government in 2002 before being handed over to the United States on suspicion of terrorism. He was held for twelve years without a trial.

The videos show Dhiab subjected to violent “forced cell extraction” and forced-feeding. The forced-feeding sessions began after he refused to eat.  Dhiab had been protesting his treatment and conditions at the prison by participating in a hunger strike which at one point had spread to 100 detainees in the facility.

The government was given time to redact portions of the video for “national security” reasons and Dhiab’s lawyers made a proposal outlining the release of the videos. However, the Obama Administration appealed on October 15th and has since attempted to argue that Executive Order 13,526, which governs the Executive Branch’s classification of national security information, “is binding on the Judicial Branch and precludes their unsealing.” This EO was issued on  December 29, 2009, shortly after Obama came into his first term.

Judge Kessler rejected this claim, stating that it “would displace the court’s power to seal its own record, putting that authority in the government’s hands alone.” She also stated, “the judiciary has the discretion to seal or unseal a judicial record.”  Dhiab’s attorneys argued [PDF] that the judicial branch maintains power over classified court filings, and the executive branch ” cannot intrude by operation of executive orders.”

“Neither the district court nor this court is beholden to the executive branch to keep these videotapes wholly secret from the American public.”

This is not the first time Judge Kessler has challenged the Obama administration’s arguments. 

The government had previously argued that the release of any footage of the type “provides the enemy with opportunity to search for weaknesses and vulnerabilities”. When President Obama attempted to seal the videos several news organizations came together in opposition of such a move, including ABC News, Associated Press, First Look Media, Guardian, McClatchy, NPR, New York Times and Reuters.

Judge Kessler sided with the organizations and Dhiab. Kessler called the governments arguments“unacceptably vague, speculative,”and “plain implausible.” She stated that:

“It is our responsibility, as judges, as part of our obligation under the Constitution, to ensure that any efforts to limit our First Amendment protections are scrutinized with the greatest of care. That responsibility can not be ignored or abdicated.”

The government has also attempted to keep the hearings away from the public eye, but, once again,Judge Kessler intervened. Judge Kessler ruled that the U.S. government could not close the hearing and called the efforts by the Department of Justice “deeply troubling.” Even more telling is the fact that during those hearings the government was not able to get a single witness to testify in favor of the forced-feeding practices.

Dhiab was subject to forced-feedings even after his health was decreasing. Kevin Gosztola of Fire Dog Lake writes:

“As lawyers highlight in their filing, an “evidentiary hearing” established that the government had ordered Dhiab to be force-fed, even though his life was not “at imminent risk from malnutrition.”

Medical personnel would lubricate the feeding tubes with olive oil. Not only was this a departure from “standard medical practice,” it put him at risk of a “rare and untreatable form of pneumonia.”

When Dhiab was force-fed, he was strapped in a “five-point restraint chair which caused him substantial pain, in disregard of a medical staff recommendation for the less-painful use of a one-point restraint.” He was force-fed twice a day instead of leaving the tube in place for “up to four weeks, which caused him needless pain.”

At the end of 2014, after twelve years behind bars with no trial, Abu Wa’el Dhiab was finally released to Uruguay. The violence and forced-feeding procedures have caused permanent damage to his health and he is now confined to a wheelchair.