Washington, D.C. — Taking the government to task for even asking for a secret trial, federal District Court Senior Judge Gladys Kessler yesterday refused to close a hearing about the treatment of a hunger-striking Guantanamo prisoner, Abu Wa’el Dhiab.
Following on that ruling, the judge today granted a request from 16 major news organizations, including the Associated Press, USA Today and the New York Times, to make public 28 videotapes that show Dhiab being dragged from his cell and being force-fed. Dhiab has been held at Guantanamo since 2002 and has never been charged with a crime. He was cleared for release in 2009. He has been on a hunger strike to protest his continued confinement and has been waging a high-profile challenge to his abusive force-feeding since June 2013. He is represented by attorneys at the human-rights organization Reprieve. His trial, which challenges the government’s force-feeding practices as cruel and unethical, begins on October 6.
No to Secret Hearing
In her ruling, Judge Kessler berated the Obama administration even for asking for a secret hearing:
On September 26, 2014, less than two weeks prior to the start of the long-scheduled Hearing, the Government filed a Motion to Seal Preliminary Injunction Hearing [Dkt. No. 333], requesting that the Court take the extraordinary step of completely closing the entire Preliminary Injunction Hearing to the public. This request, which appears to have been deliberately made on short notice, is—in this Court’s view—deeply troubling.
Her opinion went on to note that:
One of the strongest pillars of our system of justice in the United States is the presumption that all judicial proceedings are open to the public whom the judiciary serves.
She did not buy the government’s argument that a bifurcated hearing (alternating between open and closed) “is rife with the risk of slip-ups and inadvertent disclosure of protected or classified information.” Nor did she accept its claims that a bifurcated hearing would cause “significant logistical burdens,” “delay,” and “great cost in the continuity of questioning.” In response, she asserted that:
This Court has full faith in the ability of counsel and the Court, acting together, to handle in an efficient and appropriate manner, all the classified and protected information. Moreover, a reasonable amount of delay and logistical burdens are a small price to pay for the virtues of judicial transparency.
“This was a brazen attempt by the Obama Administration to shut the American people out of their own courtroom,” said Reprieve director Cori Crider, one of Dhiab’s attorneys. “And how sad to see our Justice Department deliberately undermining one of the central pillars of our democracy: open justice. This has been a rather poor showing from what was supposed to be the most transparent administration in history. Mercifully, sanity prevailed, and we look forward to making our case in public.” Release of Videotapes “I want Americans to see what is going on at the prison today, so they will understand why we are hunger-striking, and why the prison should be closed,” Dhiab said in a statement that Judge Kessler quoted in her decision. “If the American people stand for freedom, they should watch these tapes. If they truly believe in human rights, they need to see these tapes.” Judge Kessler, in her decision, stated: “In short, 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.” She described the government’s justifications for keeping the video evidence sealed in its entirety as “unacceptably vague, speculative, lacking specificity, or… just plain implausible.” She added: “It strains credulity to conclude that release of these videos has a substantial probability of causing the harm the Government predicts.” Judge Kessler also bluntly dismissed the government’s claim that releasing the videos would violate Dhiab’s right not to be held up to “public curiosity” under the Geneva Conventions. “The Government’s claim, if accepted, would turn the Third Geneva Convention on its head,” she wrote. “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.” In response to Judge Kessler’s opinion, Crider stated:
“It is high time the bright light of the truth was shone on Guantánamo’s force-feeding practices. It has always been the height of hypocrisy for the Guantánamo authorities to take media groups on ‘show tours,’ while forbidding them from talking to prisoners or seeing evidence like this, which shows the grim reality of life at the prison. I look forward to the day when this evidence is made public, and I believe the outcry that results will hasten the close of Guantánamo Bay.”
Before they can be released, the tapes must be redacted to hide the identity of everyone except Dhiab. It isn’t immediately clear if the Obama administration will continue to challenge releasing them.