A federal appeals court expressed concerns Thursday about the prospect of ordering the Obama administration to release graphic videos of a former Guantánamo Bay inmate being force-fed during a hunger strike.
Judges hearing arguments in the long-running legal dispute considered whether any First Amendment interest in releasing the footage is outweighed by possible harm to national security.
Sixteen news organizations, including the Miami Herald and Associated Press, argue that the public has a constitutional right to see the videos.
The government says the tapes are classified and warns they could be used as propaganda by extremist groups to incite anti-American sentiment.
U.S. District Court Judge Gladys Kessler last year rejected the government’s concerns as vague and speculative. She ordered the videos released with redactions to protect the identities of U.S. personnel, but the release has been on hold pending appeal.
The three-judge appeals panel gave no obvious indication of how they would rule. But at times, they pressed lawyers on both sides over how much deference courts should give to the government’s interest in protecting national security.
The videos show former Guantánamo Bay prisoner Abu Wa’el Dhiab being forcibly removed from his cell, strapped to a restraining chair and force-fed his meals through a tube.
The Syrian native was held at Guantánamo for 12 years before being released in 2015 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. He tried to stop government officials from force-feeding him, a process he describes as torture.
Justice Department lawyer Catherine Dorsey told the judges the government had no expectation the videos would ever be made public when they were offered under seal as evidence in Dhiab’s civil case.
“There is no First Amendment right to these classified videos,” she said.
Even if the First Amendment comes into play, she said, national security concerns take precedence because the videos “can directly be used to incite violence.”
David Schulz, representing the media organizations, argued that the public has a significant interest in seeing the videos to know how the government is treating terror suspects held at the detention facility.
Under the administration’s logic, Schulz said, the more objectionable the government’s conduct, the more likely government officials will argue it should be hidden from public view.
“That can’t be right,” he said.
Schulz also said the government had not offered a “logical and plausible basis” to show that disclosing the tapes would lead to violence against the nation.
But Judge Stephen Williams said the possibility of a violent response to the videos was only one of the government’s concerns. U.S. officials have also said disclosure could compromise prison security and endanger military personnel by encouraging other detainees to become uncooperative.
Judge Judith Rogers noted that lower courts often defer to the concerns of correctional officers in other cases and wondered why that wouldn’t apply here.
Schulz said the trial judge did give deference to the government’s concerns, but concluded it didn’t meet the standard of showing “serious damage” to national security.
Dhiab has since begun another hunger strike in Uruguay and is demanding he be allowed to leave the South American country.
President Barack Obama indicated early in his presidency that he wanted to close the prison at Guantánamo, but he’s been blocked by Congress. Obama said Thursday he is not ready to concede that the facility will remain open when he leaves office.
The government has been steadily releasing prisoners and the Pentagon says 61 detainees now remain there.