U.S. Government: We Can Classify Anything and Judges Can’t Stop Us

(This post is from our new blog: Unofficial Sources.)

At a hearing today on a lawsuit seeking to make videotapes of force-feedings at Guantánamo public, Justice Department attorneys argued that the courts cannot order evidence used in trial to be unsealed if it has been classified by the government. “We don’t think there is a First Amendment right to classified documents,” stated Justice Department lawyer Catherine Dorsey.

The judges at the D.C. Court of Appeals appeared skeptical. Chief Judge Merrick Garland characterized the government’s position as tantamount to claiming the court “has absolutely no authority” to unseal evidence even if it’s clear the government’s bid to keep it secret is based on “irrationality” or that it’s “hiding something.”

“That is our position,” Dorsey agreed. She added that a more appropriate tool to compel the release of the videos was through a Freedom of Information Act request.

Sixteen media organizations, including First Look Media, are seeking footage of Abu Wa’el Dhiab being repeatedly force-fed at Guantánamo. Dhiab was held by the U.S. for 12 years without charges or trial before being released to Uruguay last December.

“There is a public right at stake,” David Schultz told the panel of judges on behalf of the media outlets, adding that the videos depict “illegal conduct by government employees.”

The government countered by claiming release of the videos could harm national security, the same argument it made during a district court proceeding late last year. In that case, District Judge Gladys Kessler rejected the feds’ national security claims and ordered the release of the force-feeding videos after they had been redacted to strip out any personally identifiable information. However, she then granted a stay to that order in December to allow the government to appeal to the D.C. court.

The media organizations launched their legal efforts to declassify the videos last June. The litigation was filed after the tapes were reviewed in a case involving Dhiab, in which the detainee’s attorneys had challenged the legality of the roughly 1,300 force-feedings of their client.

During a closed session last October, an independent medical examiner with Boston University, Sondra Cosby, watched a few minutes from the tapes. She concluded that what she saw was “disturbing.”

D.C. Court of Appeals judges today also questioned whether or not they have jurisdiction to overturn Judge Kessler’s order to release the videos since the videos haven’t been released yet, and are still pending lower court discussions about redactions and public release procedures.

Dorsey responded by saying “the cat is already out of the bag.”

Jon Eisenberg, the attorney representing Dhiab, pushed back on the implication that any meaningful disclosure has already taken place. He expressed concern over the latitude the government is likely to take when it comes to redactions, and pointed to the work still left to do at the district court level before any videos are released.

“The cat is firmly ensconced in the bag and will not be let out,” Eisenberg told the judges.

Sam Sacks is a writer and reporter living in Washington, D.C. He is the co-founder of the watchdog news site The District Sentinel. 

Photo: AP/Charles Dharapak