Bucking the recent trend toward greater disclosure of materials related to U.S. detention practices and torture, a three-judge panel on the Court of Appeals for the D.C. Circuit decided Friday that videos of guards force-feeding a detainee at Guantánamo Bay should remain secret.
The ruling overturned a previous decision by Judge Gladys Kessler in 2014 ordering the military to disclose the tapes. In her opinion, Judge Kessler emphasized the public’s right to access relevant government information, and found that the government’s claims that disclosure would harm national security were overly vague, broad, or implausible.
The panel of judges on the Court of Appeals, however, accepted the government’s argument that the videos should remain secret, lest they be used by terrorist groups to incite violence against Americans. Judge A. Raymond Randolph argued that images from Guantánamo have been used in propaganda videos by terrorist groups in the past, posing a national security risk that overrides the public’s right-to-know.
This decision not only reverses the ruling made by Judge Kessler – it also runs counter to other recent court cases. Documents detailing aspects of the CIA torture program were released in January as part of a lawsuit against psychologists who participated in the program. Also in January, U.S. District Judge Alvin Hellerstein ordered the military to release photos of detainee abuse at the Abu Ghraib prison and other sites.
Hellerstein wrote in his decision, “I take seriously the level of deference owed to the executive branch in the realm of national security decision making…My complaint is that the executive has failed to articulate the reasons supporting its conclusion that release of the photos would endanger Americans deployed abroad.”
It’s not surprising that the military would want to keep videos of force-feeding – a practice that has been banned by the World Medical Association since 1975, and is a violation of international law – from the public eye. The argument that publishing materials that expose government wrongdoing or abuse would harm national security is not new; it has also been used by Senator Richard Burr and others to defend withholding the Senate Torture Report from the public.
But Executive Order 13526 (and preceding Orders on national security classification) forbids the classification of government information to conceal violations of the law or prevent embarrassment. Indeed, history shows us that the disclosure of information on illegal and improper government activities have led to significant reforms rather than harm, from the Pentagon Papers to the 1975 Church Committee Report to the Senate Torture Report.
OpenTheGovernment has long advocated for the preservation and declassification of the Senate Torture Report, and for reduced secrecy around the Guantánamo Bay prison. We supported the 40 members of Congress who wrote to President Obama in January asking for the dissemination of the Report, arguing that the Report could empower federal employees to resist future attempts to revive torture. So, too, might videos of force-feeding prevent the practice from being used again.
It is, of course, true that both friendly and adversarial actors will use images of harsh detention practices to criticize the United States, but if this were reason to keep government actions secret, the public would never see evidence of any improper or illegal government practice. Such transgressions would be allowed to continue indefinitely without the public’s knowledge or consent, and democracy would be undermined. A government that shields itself from reproach – and thus, reform and accountability – by hiding its misdeeds cannot hope to serve the public or truly keep them safe.