Judge Rejects Obama Administration's Argument to Keep Gitmo Force-Feeding Tapes Secret

A feeding chair and enteral nourishment preparation pictured inside the Joint Medical Group where the detainees receive medical care at Naval Station Guantánamo Bay in Cuba on April 10, 2013. Army Sgt. Brian Godette/Department of Defense

A district court judge on Tuesday rejected the U.S. government's request to keep concealed 32 videotapes depicting the military's force-feeding of a now-released Guantánamo Bay prisoner.

The force-feeding involves a member of Guantánamo's medical staff snaking a tube through a detainee's nose, down his esophagus and into his stomach, where it's hooked up to a bag filled with a nutritional formula, like Ensure. The process, which detainees have described as painful, is considered torture by groups such as the International Red Cross. U.S. officials maintain that force-feeding is only used as a last resort to address medical problems such as malnutrition.

Responding to the Obama administration's request for the court to reverse its nearly one-year-old decision ordering the tapes' release, Judge Gladys Kessler called the government's arguments "repetitive, speculative and extremely vague."

"What the government is really saying is that its classification system trumps the decisions of the federal courts," she wrote. "In other words, the Executive branch (in this case, the Military) purports to be a law unto itself."

In order for the court to reconsider its ruling, she wrote, there must be a change in law, a discovery of new evidence or a clear error of law—none of which hold, she argued.

Kessler suggested that a concrete example of a particular incident at Guantánamo Bay that provoked "extremist and/or insurgent groups" to act violently might've helped the government's case. But she went on to cite General John Kelly, commander of U.S. Southern Command, who said before Congress that "they don't need Guantánamo Bay to hate us."

She continued: "The Government's most emphatic argument is that no court has ever before, in any Guantánamo Bay habeas proceeding, allowed public disclosure of classified national security information," she wrote. "The simple answer to this argument is that no court has ever before, in any Guantánamo Bay proceeding, refused to allow public disclosure of images of any kind, depicting detainees being forcibly removed from their cells and forcibly fed against their will."

In August, the Obama administration turned over eight redacted tapes, showing the restraining and force-feeding of former detainee Abu Wa'el Dhiab, but concealing the identities of military personnel. Lawyers of Reprieve, the international nongovernmental organization representing Dhiab in this case, are among the few to have viewed the tapes. They worry the censorship, "especially of sound," renders the tapes "nearly incomprehensible" and have a pending motion challenging the extent of the redactions.

Dhiab, now 44, was sent to Guantánamo Bay in 2002 after he was turned over to the United States by Pakistani security forces. He spent much of his detention on a hunger strike, which likely prompted his force-feeding. Reprieve estimates that Dhiab was force-fed nearly 1,300 times during his detention. He was eventually released to Uruguay, spending more than a decade in the prison without being charged with a crime.

Kessler concluded her rejection with a quote from Justice Potter Stewart in New York Times Co. v. United States, aka the Pentagon Papers case, which involved Daniel Ellsberg leaking a classified Pentagon study about U.S. decision making during the Vietnam War.

"In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may be in an enlightened citizenry—in an informed and critical public opinion which alone can…protect the values of democratic government."

As Kessler noted in her opinion, it is expected that the government will take the case to the Court of Appeals considering "the significance and complexity" of the issues. "We expect the government to appeal this to the Supreme Court to stop people seeing the truth," said Cori Crider, Strategic Director and attorney at Reprieve —a process that could take any number of years. If Dhiab's lawyers are ultimately successful, the redacted tapes provided to the court could be released publicly.