A federal judge Thursday agreed to delay the release of dozens of videos of a Guantánamo captive being tackled, shackled and force-fed at the prison in Cuba to give the government time to decide whether to try to block the order in another court.
Media organizations opposed an extensive delay, saying the public had the right to see the footage at issue in the case of on-again, off-again hunger striker Abu Wa’el Dhiab, 43. His lawyers want the federal court to order the Defense Department to treat him differently, and media organizations want to show the public the evidence.
But U.S. District Judge Gladys Kessler swiftly granted a 30-day stay on her release order hours after a 17-page Justice Department filing accused the Washington, D.C., judge of usurping the role of the executive branch of government in deciding that the public was entitled to see material that the prison camps had classified as Secret. The characterization suggested an appeal of her release order was inevitable.
Meantime, the U.S. government made clear in its Wednesday filing that it had no intention of meeting her Friday deadline to have the 11 hours of prison camps video redacted of prison staff faces and voices, and ready for release.
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“Enforcement of the order before any appeal is heard and resolved will undoubtedly cause respondents irreparable injury, forcing the disclosure of classified information with no remedy and wasting significant time and resources should respondents prevail on appeal,” Justice Department attorneys wrote.
They included a partially redacted declaration from an unnamed Navy commander responsible for the redaction of sensitive legal material from or about Guantánamo that made clear that the work had not begun — and once it started could be completed in at best 25 work days.
Then the officer added a hitch: Even if editors who could do the work at the Defense Intelligence Agency are taken away from other duties to work on this full time, they were unavailable Nov. 1-16 “due to a previously scheduled [Department of Defense] exercise.”
The Obama administration has opposed release, arguing the disclosure could expose prison camp secrets and put troops portrayed in them at risk. Wednesday’s government request for delay also included a declaration from the prison’s overall commander, Navy Rear Adm. Kyle Cozad, reiterating his predecessor’s assessment that the videos are properly classified as “secret,” and shouldn’t be released.
Releasing them, the admiral said, could “cause serious harm to national security,” especially in light of renewed military activity in the Middle East — an apparent reference to the U.S.-led air campaign against the Islamic State.
Media organizations petitioned for their release arguing that the potential for embarrassment was not a legitimate excuse for withholding them.
In a filing Thursday, the news organizations asked the judge to set firm deadlines and issue an order for an expedited appeal. They argued there was a “significant, on-going harm to the public’s constitutional right of access.”
The news organizations that petitioned Kessler for release of the videos are: McClatchy newspapers, which owns the Miami Herald; ABC; the Associated Press; Bloomberg news service; CBS; the Contently Foundation; Dow Jones; First Look Media; the Guardian; Hearst Corp.; National Public Radio; The New York Times; Reuters; the Tribune Publiishing Co.; USA Today and the Washington Post.
“The First Amendment conveys a right to inspect and copy the evidence in this closely-followed proceeding while the evidence is of greatest interest to the public—specifically, during the hearing and while the Court is deciding Mr. Dhiab’s motion for a preliminary injunction,” First Amendment attorney David Schulz wrote in the nine-page opposition.
“Months from now, the evidence will still be of historic interest, but during the pendency of this proceeding, it is news.”
Follow @CarolRosenberg on Twitter.
Related link: The Miami Herald’s exclusive Guantánamo Hunger Strike tracker here.