The public does not have a right to see graphic videos of a former Guantánamo Bay inmate being force-fed during a hunger strike because they are classified and could harm national security, a federal appeals court ruled Friday.
The Miami Herald and 15 other news organizations had sought release of the videos, arguing that they were part of the public record because they had been used in a federal court habeas corpus petition case.
But the U.S. Court of Appeals for the District of Columbia Circuit said any First Amendment right to see the videos is outweighed by concerns their release could endanger troops and fuel global hostilities against the United States.
Read the full decision
“The government’s interest in ensuring safe and secure military operations clearly overcomes any qualified First Amendment right of access,” Judge A. Raymond Randolph said.
The court overturned the ruling of a federal district judge who had ordered the videos released with redactions to protect the identities of U.S. personnel. That order was on hold pending appeal.
The videos show military personnel removing former Guantánamo Bay prisoner Abu Wa’el Dhiab from his cell, strapping him to a restraining chair and force-feeding him meals through a tube to keep him alive during his hunger strike, according to court documents.
The Syrian native was held at Guantánamo for 12 years before being released in 2014 and resettled in Uruguay with five other detainees. During his last four years in detention, he joined other detainees in a hunger strike to protest their confinement.
At the height of the protest in the summer of 2013, before the Southern Command gagged the prison on hunger-strike information, more than 106 captives were fasting — and 46 men were tube-fed in a single day.
Prison commanders no longer disclose the information but say only a few of the last 41 captives refuse to eat.
Guantánamo Hidden Hunger Strike Guide
Dhiab filed a lawsuit seeking to stop government officials from force-feeding him, a process he describes as torture. The government sent Dhiab’s lawyer copies of video recordings of his client being force-fed, and the lawyer put those recordings into the record under seal.
Media organizations argued that the public has a strong interest in seeing the videos to know how their government treats terror suspects held at the detention facility.
But the court agreed with the government that release of the videos “would likely impair national security” in several ways.
It could encourage other detainees to provoke or resist the guards. And release of the videos could provide “terrorist elements with propaganda to fuel their continued global hostilities against the United States,” Randolph said.
While the three-judge panel considering the case agreed on the outcome, they disagreed over how to apply the First Amendment when it comes to court records. Randolph said the public’s First Amendment right to see court records applied to criminal proceedings, but not civil proceedings like Dhiab’s in which he was challenging the terms of confinement.
But Judge Judith Rogers wrote separately to say the First Amendment would guarantee access to records in such cases because they are similar to criminal proceedings. Judge Stephen Williams said the First Amendment law was not clear, but agreed that “the security interests invoked by the government are compelling.”
Miami Herald reporter Carol Rosenberg contributed to this article.