Image: Mohammed al Qahtani (from “Gitmo File” published by WikiLeaks)
By: Kevin Gosztola
A federal judge ruled last week that the United States government did not have to release images or videos of interrogations of a prisoner at Guantanamo Bay, who a convening authority for military commissions previously conceded had been tortured.
The Center for Constitutional Rights (CCR) sought the disclosure of images of Mohammed al Qahtani under the Freedom of Information Act (FOIA) so attorneys for al Qahtani could publicly confirm or deny whether they had viewed videotapes that show al Qahtani being tortured and abused.
CCR Senior Staff Attorney Shayana Kadidal told Firedoglake the organization wanted to be able to ”give the American people a tangible idea” of how the government” has treated detainees at Guantanamo.
The FBI informed the judge it possessed at least 53 videotapes of “al Qahtani’s activities within his cell, as well as his interaction” with Defense Department personnel at Guantanamo “between August 2002 and November 2002,” according to the decision.
CCR asserts that during that time period Al Qahtani was “subject to conditions of solitary confinement while being interrogated by FBI agents and military personnel.” From 2002 and 2003, CCR attorneys further state al Qahtani was the “victim of a deliberate and calculated interrogation strategy involving the repeated use of torture and other profoundly cruel, inhuman and degrading treatment.” (The use of torturous or abusive techniques or interrogators was documented in a leaked log published by Time magazine in 2005.)
Judge Naomi Reice Buchwald of the US District Court for the Southern District of New York was not persuaded and decided the Defense Department and FBI had “properly classified the videotapes and photographs of al-Qahtani in the interest of national security,” and the CIA had “appropriately declined to confirm or deny the existence” of any videotapes or photographs that would be responsive to CCR’s request.
Buchwald heavily relied upon submitted declarations of alleged harm that could be predicted to occur if the images of al Qahtani were made public. She found “it both logical and plausible that extremists would utilize images of al-Qahtani (whether in native or manipulated formats) to incite anti-American sentiment, to raise funds, and/or to recruit other loyalists, as has occurred in the past.”
Because al Qahtani is believed by the government to have been the “20th hijacker,” who would have been on Flight 93 if he had not been denied entry to the US, Buchwald found “misuse” of his images would be “particularly plausible.”
The judge also contended that, although CCR had highlighted what “written information” was already known publicly to argue for the release of videotapes, the “written record of torture” made it “all the more likely that enemy forces would use al Qahtani’s image against the United States’ interests.”
Furthermore, the judge quoted a decision by the Second Circuit Court of Appeals in another CCR lawsuit that sought records on any NSA surveillance of 23 attorneys representing detainees at Guantanamo. The Court of Appeals indicated:
“[W]e have consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927. We affirm our “deferential posture in FOIA cases regarding the uniquely executive purview of national security.” Larson, 565 F.3d at 865 (internal quotation marks omitted). Recognizing the relative competencies of the executive and judiciary, we believe that it is bad law and bad policy to “second-guess the predictive judgments made by the government’s intelligence agencies,” id. (internal quotation marks omitted), regarding questions such as whether disclosure of terrorist-related surveillance records would pose a threat to national security. [emphasis added]
In the al Qahtani FOIA decision, the judge noted the court agreed with the Court of Appeals’ “caution” and would decline to assess the government’s predictive judgments in the case.
Such deference not only seems blatantly improper but a complete act of dereliction of duty on the part of the court, which is supposed to check the power of the Executive Branch.
If any predictive judgments whatsoever can be made without question, Executive Branch agencies have the freedom to fabricate any claims they want around information revealing details on activities of national security or intelligence agencies in order to keep that information secret. It also means government agencies do not have to confront whether their claims of predictive harm outweigh how the public interest value of the information; for example, how that information might contribute to critical debates.
Kadidal suggested, “There’s no reason to think that any of those arguments,” which the judge accepted from government officials, “wouldn’t have applied to bar release of the Abu Ghraib materials if they hadn’t been all leaked to the press in the first place.” Yet, those materials showing the torture of detainees by US military personnel has influenced debate over detainee treatment and torture over the past nine years.
Extending that argument, these predictive claims by government officials could be employed—and are likely being employed in internal government conversations—to prevent the release of a critical 6,000-page report on CIA torture assembled by the Senate.
One of the problems in these kinds of cases, Kadidal noted, was that the judge only looks at declarations from government officials. “Underlying information” is not reviewed. That contributes to the deference judges show toward government claims about what will happen if information is released.
General Karl Horst, who served as a chief of staff for US Central Command and was “responsible for oversight over 200,000 military personnel in Iraq, Afghanistan and the surrounding region,” stated in a declaration, “Enemy forces in Afghanistan” and elsewhere “have previously used videos and photographs out of context to incite the civilian population and influence government officials.” Taliban and “associated forces” have used “published photographs of US forces interacting with detainees” to “garner support for attacks” on US forces.
Horst further claimed extremist groups could “pixellate” the disclosed images of al Qahtani “to show physical signs of mistreatment, such as bruising or bleeding; overlay “staged audio” on released video segments to “falsely indicate the mistreatment” of al Qahtani where no mistreatment occurred” and/or “splice released footage” of al-Qahtani “to change the chronology of events.”
In other words, since extremist groups might produce propaganda using the released images, the American public cannot have transparency or openness.
All of which are convenient suggestions that effortlessly shield officials from accountability for their conduct, primarily because the judge would not contest the claims. The suggestions also further embrace closing society out of fear of what the terrorists might do. It not only is a victory for extremist groups fighting America, because they can relish the fact that the US continues to become less free, but it means extremist groups can put in their propaganda anything they want about al Qahtani and that propaganda is likely to be believed by those they would like to recruit for attacks. They can say, if these claims about treatment were not true, the US would not be fighting to keep images of al Qahtani secret.
Either way, al-Qahtani remains imprisoned at Guantanamo Bay prison, which President Obama has thus far failed to close. That is a reality that has the potential to incite violence and inspire extremists to join violent groups on its own.
Kadidal highlighted how former CIA Director of Operations Jose Rodriguez oversaw the destruction of at least 92 tapes showing interrogations where agents used torture techniques on detainees. The public may have thought no video tapes of how the US treated prisoners would ever be seen, but this case shows there is a “vast documentary record out there” and the government under President Barack Obama has managed to keep it from public scrutiny.
He added this was a unique case where CCR attorneys were working on a habeas case on behalf of al Qahtani. They had seen a number of the videotapes.
Kadidal was careful to make sure in each of his answers it was clear he could not divulge any details on the contents of those videotapes or what specifically CCR attorneys had seen, but he mentioned multiple times that attorneys had seen them. And these attorneys were obviously concerned about what the contents show or they would not have pushed for the videotapes to be declassified.
Yet, the judge wrote in her decision, “There is no evidence that any of the withheld videotapes or photographs depict illegal conduct, evidence of mistreatment, or other potential sources of governmental embarrassment.” Based off a review of the “FBI’s individualized description of the FBI Videotapes,” these records “do not document any abuse or mistreatment.”
Whether this claim is reasonable or not, the public cannot really determine. CCR cannot address the veracity of the claim because that would put attorneys at risk of being accused of improperly disclosing information to the public they were not authorized to disclose, according to a protective order in the al Qahtani’s habeas case.
The judge did not view the actual videotapes, another example of extreme deference toward the national security state. She instead read descriptions the government provided, which were undoubtedly written to ensure the judge was not suspicious or concerned about any of the tapes’ contents.
In conclusion, the dynamic of deference by the Judicial Branch toward the Executive Branch does not just mean officials are able to keep evidence of torture secret but any information on national security activities or policies, which may illegal, unethical or questionable. That means so long as the “war on terrorism” is ongoing government can choose to keep whatever it wants secret and the public will not see it—unless someone with a moral conscience like Abu Ghraib whistleblower Joe Darby or Edward Snowden releases the information to the press to inspire debate.