On December 7, the United States transferred six detainees from the Guantanamo Bay detention facility to Uruguay. One of those detainees was Abu Wa'el Dhiab. While mercifully now free -- he had been cleared for transfer for years -- Mr. Dhiab leaves behind a lasting impression, quite literally: 32 videotapes of Guantanamo staff force-feeding him and forcibly extracting him from his cell.
The videotapes' existence came to light during Mr. Dhiab's lawsuit challenging as needlessly harsh certain aspects of the Guantanamo forced-feeding process. Sixteen major media organizations intervened in the case to request that the videotapes be released to the public. On October 3, Judge Gladys Kessler agreed, though she ordered that the videotapes first be redacted to mask the identities of Guantanamo staff. Last week, the Department of Justice told Judge Kessler it would appeal her decision. She has since stayed the order to redact and release the videotapes while DOJ's appeal is pending.
During a recent hearing in Mr. Dhiab's case, this is how Defense Department officials and Justice Department lawyers described to Judge Kessler the procedures that the videotapes show:
"JTF-GTMO conducts enteral feeding of detainees in the kindest, safest, and most humane way possible." Guantanamo's Senior Medical Officer (SMO) has "personally observed enteral feeding of many detainees, and ... never observed a detainee experience a painful reaction during the placement of the nasogastric tube." "The current procedures are not painful," the SMO says, and he "cannot think of any adjustments to the current policies that would make them less painful." According to Justice Department lawyers, "this is a very common and safe procedure that children's hospitals allow parents to do at home on infant children...." "Mr. Dhiab's own medical records confirm regularly that he tolerates the procedure well, without complaints, and on the rare occasions when any issues are raised, the medical staff is responsive to those concerns." In the case of forced cell extractions, those are "used only as a last resort after all other alternatives have failed. The guard staff uses the minimal amount of force necessary...." It is "a very controlled and measured process...."
Yet, in its notice of appeal, the government claims a chilling parade of horribles would result from releasing the videotapes. According to Rear Admiral Sinclair M. Harris, Vice Director of Operations for the Joint Staff at the Pentagon, release of the tapes "in whole or in part, could reasonably be expected to seriously harm national security, to include our defense against transnational terrorism by: (a) endangering the lives and physical safety of U.S. personnel, to include military, civilian and contractor personnel (b) adversely affecting security conditions in Afghanistan and Iraq and (c) aiding in the recruitment and financing of extremists and insurgent groups." More specifically, he claims that making the videotapes public would "strain relationships between U.S. and foreign governments within the CENTCOM region, further jeopardizing the continued efforts on the part of the U.S. government to assist Afghanistan in entering into a period of productive self-governance and assist Iraq in stabilizing its country in the face of ISIL's efforts to take over and institute a Caliphate state."
Rear Admiral Harris further analogizes the videotapes of Mr. Dhiab -- and the impact of making them public - to previous "release of a video depicting Marines urinating on the corpses of alleged Taliban members" and "media reports regarding the burning of Korans."
What? The government cannot have it both ways.
"If this is what the videotapes show -- painless, safe and humane procedures that Mr. Dhiab has undergone without complication or complaint, accompanied by the responsible use of minimal force only when absolutely necessary - the government's fear that releasing them would inflame world opinion and further endanger Americans seems unfounded.
Of course, Mr. Dhiab describes a much different experience, one that is punitive, degrading, and unnecessarily painful. If the videotapes are consistent with Mr. Dhiab's account, the public has every right to know what is being done in its name and the government's responsibility is to stop such abuse, not to hide it."
The government's latest iteration of the argument -- that the videotapes of Mr. Dhaib show practices so gruesome that they are fairly comparable to "Marines urinating on the corpses of alleged Taliban members," but at the same time show only "the lawful, humane and appropriate interaction between guards and detainees" -- only ups the ante. So, too, does the Guantanamo Commander's recent decision to ban videotaping going forward.
Transparency is a core component of JTF-GTMO's mission, a repeated pledge of the Obama administration, and a pillar of our democracy. The courts should force the military to live up to it.
"It is hard to imagine a more explicit description of [forced-feeding and forced cell extraction] than that which is found on the videotapes of the actual execution of such processes," the Guantanamo Commander said recently. Indeed. It is time to lift the veil of secrecy.
The Constitution Project Senior Counsel Scott Roehm co-authored this article.