Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Media seeks Guantanamo force-feeding videos

A group of 16 news organizations is asking a federal judge to make public a batch of videos of a hunger-striking Guantanamo Bay prisoner being forcibly removed from his cell and force fed.

Thirteen of the videos were filed in U.S. District Court earlier this month, but they're currently under seal because the Defense Department has classified the videos as "secret" national security information. In an order signed Thursday, Judge Gladys Kessler approved the filing of 15 more videos with the court.

The new motion from the news outlets argues that court records are presumptively public and the mere fact that the videos are deemed "secret" by the executive branch isn't enough to keep them sealed in court.

"This classification standard is a low and broad standard that, alone, does not satisfy the strict standards for closure imposed by the Supreme Court" in a 1986 case known as Press-Enterprise, attorneys David Schulz and Julie Ehrlich wrote on behalf of the news organizations. "If a document is classified only at the 'secret' level, it bears no indication that the Press Enterprise standard has been met, or even that the Executive branch itself believes that standard can be met."

Justice Department and Pentagon spokesmen declined to comment on the media motion, but government lawyers have argued in other filings that the videos are classified "secret" in order to protect the identities of servicemembers and to safeguard security techniques.

However, the media motion (posted here) argues that those techniques are widely known and the videos are important to public debate over the involuntary use of so-called enteral feedings for Guantanamo prisoners.

"Particularly given the relevance of the videotape evidence to the ongoing intense debate over the use of force-feedings, no proper basis exists to withhold from the pubic [sic] the videotape evidence documenting the Government’s response to the hunger strike at Guantanamo," Schulz and Ehrlich wrote.

Judges have historically been very reluctant to order public disclosure of information the Executive Branch deems classified. In the rare instances where judges have done so, higher courts have reversed the decision or the executive took action to moot the issue. However, such disputes have usually arisen in Freedom of Information Act cases, where the requester is trying to force release of documents held by federal agencies rather than records in court files.

The videos at issue in the current fight were filed (or are expected to be filed) as exhibits by lawyers for Syrian national Abu Wa-el Dhiab in connection with a Habeas Corpus petition he filed challenging the force-feeding procedure at Guantanamo as unconstitutional.

The drive to unseal the Guantanamo motion is led by the Hearst Corporation and joined by ABC, The Associated Press, Bloomberg, CBS, The Contently Foundation, Dow Jones, First Look Media, Guardian US, The McClatchy Company, National Public Radio, The New York Times, Reuters, Tribune, USA TODAY, and the Washington Post.

Disclosure: Schulz and Ehrlich's firm, Levine Sullivan Koch & Schulz, represents and advises POLITICO in various matters. POLITICO is not a party to the motion reported here.