Pentagon’s secret Guantanamo videos will stay classified

AFP Photo / Michelle Shephard / Toronto Star / Pool
The Justice Department has ruled that the Obama administration does not have to disclose video showing the forced extraction of Guantanamo Bay prison detainees because doing so would be detrimental to national security.

US District Judge John Bate has decided that the Pentagon does not have to produce dozens of recordings taken at the Guantanamo Bay, Cuba military detention facility, closing the case on a long-standing Freedom of Information Act (FOIA) request filed by plaintiffs with the International Counsel Bureau (ICB) and the law firm of Pillsbury Winthrop Shaw Pittman LLP.

The attorneys and ICB have been asking to see 45 video clips of forced cell extractions recorded at Gitmo as well as another tape showing a detainee shackled by guards against his will so that they could administer a haircut. On December 4, Judge Bate granted summary judgment to the government, giving Uncle Sam the go-ahead to keep the materials classified.

“If the videos were made public, it would encourage more detainees to engage in disruptive behavior that would likely result in forced cell extractions, hereby increasing the likelihood of injury to both detainees and military personnel,” the justice writes.

Judge Bates acknowledges in his ruling that the decision was influenced in-part by affidavits and sworn testimony provided by the Department of Defense in which the Pentagon successfully argued that the release of the requested footage could inflame anti-American sentiment.

Included in the defense’s plea were statements made by William K. Lietzau, the Obama administration’s deputy assistant secretary of defense for detainee policy, and Maj. Gen. Karl R. Horst, Chief of Staff for the US Central Command. According to Lietzau, the public release of the requested videos would harm relationships between the United States and its allies since it would raise “serious questions” about whether or not the US has been acting in accordance with the Geneva Conventions.

The Defense Department argues that the Geneva Conventions provide the government with the protection to refrain from releasing the footage if the courts cannot determine a legitimate purpose to the disclosure.

The courts has previously found in favor of the Pentagon in related cases, but ISB vs. USA was renewed after the defendants asked the Department of Defense to perform a more thorough search of material that could return positive findings pursuant to the plaintiffs’ FOIA request. The court had last decided, though, that the requested videos in full were not necessarily protected by security provisions that allow them to be withheld and have been tasked most recently with determining if any part of the footage in questions could be declassified.

In his affidavit provided to the DoD, Lietzau said, "there is a significant risk that public release, even of portions of forced cell extraction videos, would cause serious damage to national security.”

"[D]etainees would quickly learn that these videos are a useful means of communicating with others, potentially including al-Qaeda and associated enemy forces not detained at Guantanamo," Lietzau told the court. Thus, he said, it’s imperative to prevent the release of any footage whatsoever.

“Lietzau asserts that even a ten second image of a detainee waiting to be forcibly removed from his cell would show the public that a detainee was resisting the rules of the detention facility, which would allow al-Qaeda and its affiliates to create propaganda out of such images,” Judge Bates wrote in his ruling.

Maj. Gen. Horst agrees largely with Lietzau, telling the court that he saw similar footage used to “incite the civilian population and influence government officials,” and wouldn’t discount that happening again” in the US Central Command.

The videos at the center of the FOIA release that show cell extractions “are particularly subject to use as propaganda,” says Maj. Gen. Horst, because it’s clear US guards are forcefully interacting with detainees. On their part, the plaintiffs in the case say using the footage for propaganda purposes and for relaying cover communications are “hypothetical and attenuated.”

Maj. Gen. Horst adds that while he wouldn’t rule out anti-US forces to manipulate the footage or use it out of context, as is the video is itself “inflammatory given the sensitivities surrounding the U.S. detention of foreign nationals.”

“In any event, these additional declarations, providing plausible explanations of the harm to national security from the release of even solo images of a detainee, and explanations for why the videos were appropriately classified in their entirety, ‘merit substantial weight,’” writes Judge Bate.

The ICB and Pillsbury Winthrop have been pursuing information about foreign nationals held at Gitmo since at least 2008. US President Barack Obama has insisted that he will close the facility during his second term since he has been unable to fulfill that promise during his first four years in office, but a provision on next year’s defense spending bill he is expected to sign includes wording that will be make it fiscally impossible to move detainees from Gitmo to elsewhere.

Aides for the president have claimed the commander-in-chief will veto the 2013 National Defense Authorization Act if the measure restricting Guantanamo funds remain intact, although a similar warning to reject the current bill over provisions that allow for the indefinite detention without trial and charge of US citizens was ignored by Mr. Obama.