U.S. Judge Orders Release of Guantánamo Force-Feeding Tapes, Condemns Government Delays

Former Guantánamo prisoner Abu Wa'el Dhiab and U.S. District Judge Gladys Kessler.

By Andy Worthington, July 11, 2015

Sick of delaying tactics, a U.S. federal court judge has ordered the government to stop wasting time with "frivolous" appeals against her rulings, and to release videotapes showing a Guantánamo prisoner being brutally force-fed.

On October 3 last year, in the District Court in Washington D.C., Judge Gladys Kessler ordered the government to prepare for public release 32 videotapes of a Guantánamo prisoner, Abu Wa'el Dhiab, being dragged from his cell and force-fed. The tapes contained 11 hours of footage in total, and, as I explained at the time, Judge Kessler responded to the government's concerns about the need for anonymity for U.S. personnel by ordering them to be "redacted for ‘all identifiers of individuals’ other than Mr. Dhiab."

That was over nine months ago, and on Friday (July 10), Judge Kessler ordered the government to "complete all national security-related redactions to the first eight tapes -- which show Abu Wa'el Dhiab being forcibly removed from his cell and tube-fed -- by August 31, and to complete other key redactions by September 30," as Mr. Dhiab's lawyers at Reprieve explained in a press release.

Reprieve added, "The tapes were first filed to court as classified evidence in a legal challenge to prison conditions at Guantánamo Bay, Dhiab v Obama. 16 press organizations, including [the] Associated Press, the Washington Post and the New York Times, intervened seeking the videos' release to the public on First Amendment grounds. Judge Kessler ordered them to be released; the Obama Administration then appealed in what Judge Kessler called 'as frivolous an appeal as I’ve ever seen.'"

A month ago, a panel of three appeals court judges turned down that appeal, and in a hearing on Thursday (July 9), Judge Kessler made clear her frustration with what Reprieve called the government's "protracted delaying tactics" in the case. Not only is it over nine months since Judge Kessler's order, but it is over a year since the 16 media organizations first sought the public release of the videotapes, and two years since Dhiab -- who was finally freed from Guantánamo and resettled in Uruguay in December -- first sought to have restrictions imposed on the authorities' claimed right to force-feed him as they wished, without any outside scrutiny. He has stated that he was subjected to force-feeding about 1,300 times during his imprisonment.

As Reprieve explained, in court on Thursday, lawyers for the Justice Department "made two main points, which found little favor with Judge Kessler." Firstly, after nine months, they had the nerve to ask the court "to reconsider its prior order to release the videotapes," and secondly they "claimed it would take several more months for the Obama Administration to redact any tapes," contradicting the government's "previous assessment that they would need five weeks to redact all 32 tapes."

When Andrew Warden of the Justice Department "began asserting that it would take until the end of August to prepare even 8 of 32 tapes," Judge Kessler "interjected very swiftly," and stated, "No, that’s not how we are going to it. The Government has made it possible to delay this for, according to my count, eight and a half months. Eight and a half months. The Government’s appeal was as frivolous an appeal as I have ever seen. Of course the Court of Appeals didn’t have jurisdiction. The minute I heard you were going to go up [to the Court of Appeals] I remember then talking to my law clerk saying, ‘I don’t understand this, the case is still on my docket. The Court of Appeals doesn’t have jurisdiction now.' But that’s neither here nor there."

Making clear that "she was not going to tolerate excessive further delay on the part of the Justice Department," Judge Kessler added, "We are going to move as fast as we can."

The Intercept reported that the following exchanges had taken place in the courtroom. David Schulz, attorney for the media organizations, said of the government's proposed timetable, "This whole thing is a ploy. It’s delay, delay, delay."

Eric Lewis, counsel for Mr. Dhiab, was "incredulous," as The Intercept put it. "Last year, they could do 32 tapes in five weeks," he said. "This year, they can do 8 tapes in seven weeks."

The Intercept added that the government's response was to pin the delay "on the Pentagon’s video editors, and claiming that the process has 'proven to be much more burdensome and time-consuming.'" Andrew Warden told the court, "This is a very difficult project that is to some degree unprecedented," adding, "there are real practical and technological burdens with the redaction process.” He explained, "There are 30 frames per second, and the video editors have to go frame by frame to redact names, faces and other personally-identifiable information.

Dhiab’s attorney "responded with skepticism," as The Intercept put it. Eric Lewis said, "Video editors do that all the time. It’s a matter of commitment and resources." As a compromise, Eric Lewis suggested, "rather than putting all 32 tapes through editing, which will be painfully time-consuming based on the government’s track record thus far, that only an hour-and-a-half long compilation video go through the redaction process and be released to the public." Lewis said, "We’re looking for a way to break though this and make up for a great deal of lost time."

Prior to the ruling, Cori Crider, Mr. Dhiab's attorney at Reprieve, said, “The Defense Department has been playing stall ball from the second we forced them to turn over this grisly secret footage, and they remain determined to keep every second of it out of the hands of the U.S. media. Their motive is obvious: if Americans were permitted to see the truth in these tapes, the conversation about Guantánamo would change overnight."

Afterwards, she said, "This is a great win for the U.S. press, and for the First Amendment. The Obama Administration has been kicking and screaming to avoid processing even one minute of this footage, and never wanted to have to give a specific reason for keeping it secret. That is because the real reason for trying to hide Mr. Dhiab’s face is that what he suffered is a scandal and an embarrassment to the Administration that allowed it.

She added, "The Government has been rightly chided by the judge and now will be made to give real reasons for every frame of this footage that they want to keep hidden from the public. Images of a suffering detainee are matters of public importance and should no more be suppressed than those of Abu Ghraib, Eric Garner or Rodney King. An Administration truly committed to transparency would release the tapes forthwith. That's why the U.S. press is intervening in this case, and the courts are standing firm to preserve our right to see what is being done in our name."