Update on Guantanamo Force-Feeding Video Litigation: Dhiab v. Obama

By David Ryan
Wednesday, October 28, 2015, 11:30 PM

Yesterday, D.C. District Court Judge Gladys Kessler denied the government’s motion to reconsider her October 3, 2014 order and opinion granting a motion to unseal classified videotape evidence capturing the forcible cell extraction and force-feeding of Abu Wa’el Dhiab at Guantanamo Bay.

Dhiab, a Syrian national, was detained at Guantanamo Bay following his capture in Pakistan in 2002. Although the Obama administration cleared him for transfer in 2009, Dhiab remained at Guantanamo until his December 2014 release to Uruguay. In the interim, he sought habeas relief and went on a hunger strike, and subsequently filed a motion to enjoin the government from forcibly extracting him from his cell and force-feeding him. In determining whether to grant this motion, the district court examined 32 classified videotapes of Dhiab’s forcible cell extractions and force-feedings.

In June 2014, various news media organizations intervened in Dhiab’s habeas proceedings in order to file a motion to unseal and release the videotapes on First Amendment grounds. After Judge Kessler granted the motion with certain modifications, the government appealed and also filed an emergency motion to stay her ruling. In a per curiam opinion filed on May 29, 2015, the D.C. Circuit held that it lacked jurisdiction to review the government’s appeal, and additionally denied the government’s request for a writ of mandamus. The D.C. Circuit remanded the case to the district court for consideration of the government’s supplemental declarations in support of its emergency motion to stay, which described the harms associated with releasing the tapes.

In yesterday’s opinion, Judge Kessler determined that the government had failed to meet the legal standards for granting a motion for reconsideration. In particular, she found that the government had proffered no information or justification that was not available before her initial ruling, and she further criticized the government’s supplemental declarations as being “repetitive, speculative, and extremely vague.” According to Judge Kessler, the declarations merely repeated the government’s earlier “fears and speculations” that the release of the videos would incite extremist groups to engage in violence against U.S. personnel, lead detainees to develop countermeasures to forcible cell extractions, and result in more frequent forcible extractions by fostering detainee resistance.

Judge Kessler also reasoned that the public’s interest in transparency and oversight weighed heavily in favor of releasing the videotapes:

Transparency about the actions of our government—including the judiciary—is one of the cornerstones of our democracy. This Court has found that the Government’s justifications for barring the American public from seeing the videotapes are not sufficiently rational and plausible to justify barring release of the videotapes, which are part of the Court’s official records, from the eyes and ears of the American public. As Justice Stewart said in the Pentagon Papers case: "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."

The DOJ now has another opportunity to litigate the release of the tapes. As Judge Kessler concluded yesterday, the Dhiab case presents issues of such “significance and complexity” that it is virtually certain her ruling will be reviewed by the D.C. Circuit.