FOR THE DISTRICT OF COLUMBIA ABU WA’EL (JIHAD) DHIAB...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ABU WA’EL (JIHAD) DHIAB (ISN 722), Petitioner,

v.

BARACK H. OBAMA, et al., Respondents.

Civil Action No. 05-CV-1457 (GK)

RESPONDENTS’ OPPOSITION TO PRESS APPLICANTS’ MOTION TO UNSEAL VIDEOTAPE EVIDENCE

Dated: July 18, 2014

STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Branch Director TERRY M. HENRY Assistant Branch Director ANDREW I. WARDEN (IN Bar 23840-49) TIMOTHY B. WALTHALL ROBERT J. PRINCE (D.C. Bar 975545) PATRICK D. DAVIS United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: 202.305.3654 E-mail: [email protected]

Counsel for Respondents

Case 1:05-cv-01457-UNA Document 288 Filed 07/18/14 of 37

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 3

I. FORCED CELL EXTRACTION VIDEOS........................................................................ 3

II. RELEVANT COURT ORDERS ...................................................................................... 11

A. Guantanamo Habeas Proceedings ............................................................................... 11

1. Protective Order .................................................................................................... 12

2. Public Factual Returns .......................................................................................... 12

B. Judge Bates’ Upholding of Denial of FOIA Request for FCE Videos ....................... 16

ARGUMENT ................................................................................................................................ 17

I. THERE IS NO FIRST AMENDMENT OR COMMON- LAW RIGHT OF ACCESS TO CLASSIFIED INFORMATION ................................... 17

A. The First Amendment Right of Access to Court Proceedings Does not Extend to Classified Information ............................................ 17

1. There is no History of Public Access To Classified Information Entered in Habeas Proceedings......................................................... 18

2. Public Access to Classified Information Would not Play a “Significant Positive Role” in the Functioning of these Proceedings................... 20

B. The Common Law Provides no Public Right of Access to Classified Information .................................................................. 21

II. CONTINUED PROTECTION OF THE VIDEOS FROM DISCLOSURE IS NECESSARY TO PREVENT SERIOUS HARM TO NATIONAL SECURITY ........... 22

A. There is a Substantial Probability that Disclosure of the FCE Videos Will Cause Serious Harm to a Compelling Interest ............................... 26

B. Because No Meaningful Portion of the Videos are Devoid of Classified or Sensitive Information, Sealing the Videos is Narrowly Tailored to Prevent Harm ........................................ 28

C. Previous Disclosures of Related Information Neither Lessen the National Security Harms Caused by Disclosure nor Render Sealing of the Videos Ineffective ...................................... 29

CONCLUSION ............................................................................................................................. 31


ii

TABLE OF AUTHORITIES

CASE PAGE(S)

Ameziane v. Obama, 620 F.3d 1 (D.C. Cir. 2010) ...................................................................................14, 15, 26

Bismullah v. Gates, 501 F.3d 178 (D.C. Cir. 2007), cert. granted, judgment vacated 554 U.S. 913 (2008), and on reconsideration, 551 F.3d 1068 (D.C. Cir. 2009) ............................................................................. 18-19, 23

Bouediene v. Bush, 553 U.S. 723 (2008) ...........................................................................................................11

Campbell v. U.S. Dep't of Justice, 164 F.3d 20 (D.C. Cir. 1998) .............................................................................................25

CIA v. Sims, 471 U.S. 159 (1985) ...........................................................................................................25

City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ...........................................................................................................22

Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) ...........................................................................................23

Dep't of Navy v. Egan, 484 U.S. 518 (1988) ...........................................................................................................24

Edmonds v. FBI, 272 F. Supp. 2d 35 (D.D.C. 2003) .....................................................................................30

El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) .............................................................................................24

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) ...........................................................................................30

Haig v. Agee, 453 U.S. 280 (1981) ...........................................................................................................23

Holy Land Found. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) ...........................................................................................19

In re Application of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83 (D.D.C.2008) .................................................23


iii

In re Guantanamo Bay Detainee Litig. I, 624 F. Supp. 2d 27 (D.D.C 2009) ............................................................................. passim

In re Guantanamo Bay Detainee Litig. II, 787 F. Supp. 2d 5 (D.D.C. 2011) ............................................................................... passim

In re Reporters Comm., 773 F.2d 1325 (D.C. Cir. 1985) .........................................................................................17

In re Wash. Post Co., 807 F.2d 383 (4th Cir. 1986) .............................................................................................26

Int'l Counsel Bureau v. U.S. Dep't of Def., 906 F. Supp. 2d 1 (D.D.C. 2012) .............................................................................. passim

Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004) .........................................................................................19

Judicial Watch, Inc. v. U.S. Dep't of Def., 857 F. Supp. 2d 44 (D.D.C.2012) ......................................................................................16

King v. U.S. Dep't of Justice, 830 F.2d 210 (D.C. Cir. 1987) ...........................................................................................25

McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983) .........................................................................................18

Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) .........................................................................................25

Northrop Corp. v. McDonnell Douglas Corp., 751F.2d 395 (D.C. Cir. 1984) ............................................................................................19

Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) ...........................................................................................14

People's Mojahedin v. Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003) .........................................................................................19

Press-Enterprise Co. v. Super. Ct., (Press-Enterprise I), 464 U.S. 501 (1984) ...............................................................................................13, 17, 23

Press-Enterprise Co. v. Super. Ct. of Cal., (Press-Enterprise II), 478 U.S. 1 (1986) ....................................................................................................... passim

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ...........................................................................................................19

Salisbury v. United States, 690 F.2d 966 (D.C. Cir. 1982) ...........................................................................................30


iv

Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003) ...........................................................................................19

United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997) .....................................................................................17, 21

United States v. Lockheed Martin Corp., Case No. 98-CV-731, 1998 WL 306755 (D.D.C. May 29, 1998) .....................................19

United States v. Moussaoui, 65 F. App'x 881, 887, n.5 (4th Cir. 2003) ..........................................................................23

United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990) ............................................................................ 18, 19-20

United States v. Smith, 750 F.2d 1215 (4th Cir.1984) ............................................................................................24

Wash. Legal Found. v. US. Sentencing Comm'n, 89 F.3d 897 (D.C. Cir. 1996) .............................................................................................21

Wash. Post v. U.S. Dep't of Def., 766 F. Supp. 1 (D.D.C. 1991) ............................................................................................30

Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ...........................................................................................16

STATUTE PAGE(S)

5 U.S.C. 552 § (b)(1)) ..............................................................................................................22, 25

10 U.S.C § 130b .............................................................................................................................15

50 U.S.C. § 421 ..............................................................................................................................22

50 U.S.C. § 783 ..............................................................................................................................22

18 U.S.C. § 1924 ............................................................................................................................22

18 U.S.C. App. 3 § 6(e)(1) .............................................................................................................22

Detainee Treatment Act, Pub. L. No. 109-148, § 1005(e)(2) ........................................................23

OTHER AUTHORITIES PAGE(S)

Department of Defense Directive 2310.01E ....................................................................................8

Executive Order 13526 § 1.4 .....................................................................................................5, 11


1

INTRODUCTION

What Press Applicants seek is unprecedented: the disclosure of 28 videos whose release

could reasonably be expected to cause serious harm to national security and, so, have been

properly classified as SECRET. In support of this extraordinary request, Press Applicants can

muster no case that entitles them to classified information. This is not surprising, because no

court in the context of these habeas cases has ever deliberately disclosed classified filings to the

public. Rather, Press Applicants rely on their unsupported assertion that release of the videos

would be harmless, a matter the assessment of which is properly left to the discretion of the

Executive Branch. In short, they provide no reason for this Court to modify the Protective Order

in this case, which properly requires non-public filing, and prohibits disclosure, of classified

information.

Press Applicants’ arguments to the contrary are unavailing. Neither the First Amendment

nor the common law entitles news organizations to obtain through court process and to publish

classified information that has been placed under seal by the court to preserve the information’s

secrecy. Any right of access that may historically exist with respect to habeas proceedings does

not extend to the inspection and publication of classified information. Nor would public access

to the classified information at issue play a significant positive role in the functioning of these

proceedings; Judge Hogan, in fact, has already found more generally in these cases that exposure

of classified information would have a negative effect. Lastly, the common law cannot authorize

a right of access to classified information, for federal common law operates only in the absence

of federal legislation, and Congress has repeatedly exercised its legislative authority to prohibit

the disclosure of classified information to the public.

Moreover, even if there were a public right of access to classified information as a

general matter, sealing of the videos, which record Petitioner being removed from his cell via

Forced Cell Extraction (FCE), is proper because it is a narrowly tailored way to effectively avoid

serious harms. Public release of the videos would endanger military personnel at Guantanamo


2

by revealing personally identifying information of the FCE team members and other

Guantanamo personnel, placing them and their families at risk of physical harm and harassment,

and by providing demonstrative details of tactics, techniques, and procedures. Terrorist elements

could manipulate and alter disclosed videos to produce anti-American propaganda to inflame

Muslim sensitivities overseas. The knowledge that videos could be released to the public and

would therefore be available for such propaganda use could also encourage detainees to engage

in behavior that would lead to more FCEs, increasing the risk of injury to both detainees and

members of the guard force. Finally, disclosure would foment an international perception that

the United States is not committed to protecting detainees from public curiosity, which could

dilute the similar protections afforded U.S. service personnel under international law in ongoing

and future conflicts. Another judge of this Court upheld the Department of Defense’s refusal to

release similar FCE videos in response to a Freedom of Information Act request, relying on the

Government’s declaration explaining the harms to national security that disclosure would cause.

Int’l Counsel Bureau v. U.S. Dep’t of Def., 906 F. Supp. 2d 1 (D.D.C. 2012) (Bates, J.). The

same harms require that the FCE videos at issue here not be disclosed.

There is no alternative to sealing the videos that would avoid these harms. Nor is there

any meaningful information in the video that could be released without causing one or more of

these harms. Finally, the fact that other, less detailed information about—or allegedly about—

FCEs has been released to the public does not reduce the effectiveness of sealing the videos in

avoiding these harms. Therefore, the existing protective order barring disclosure of these

classified videos should remain in force. For these reasons, Respondents oppose Press

Applicants’ Motion to Unseal (ECF No. 263).1

1 Respondents do not, however, oppose Press Applicants’ Motion to Intervene.


3

BACKGROUND

I. FORCED CELL EXTRACTION VIDEOS

Forced Cell Extraction. When necessary, Joint Task Force-Guantanamo (JTF-GTMO)

employs Forced Cell Extraction (FCE) procedures to remove detainees who refuse to cooperate

from their cells, including where necessary to bring uncooperative detainees to their enteral

feeding appointments. FCE is used only on those who, through actions or words, demonstrate

the intent to resist; refuse to follow guard staff instructions; cause a disturbance; or endanger the

lives of themselves, other detainees, or any JTF-GTMO member. Decl. of Col. John V. Bogdan

(Col. Bogdan Decl.) ¶ 7.2

The FCE practices used at JTF-GTMO are modeled on the rules of force in military

corrections facilities and the Federal Bureau of Prisons (see Federal Bureau of Prisons Program

Statement P5566.06, Subject: Use of Force and Application of Restraints). Col. Bogdan Decl.

¶ 4. The FCE team is a small group of military members who have specifically trained to extract

a detainee who is combative, resistive, or possibly possesses a weapon. Id. ¶ 5. The team must

adhere to specific procedures during FCEs, including mandatory warnings and instructions to the

detainee and required actions that must be executed at each stage. Id. ¶ 6.

Use of the minimum force necessary is the touchstone of any FCE. Col. Bogdan Decl.

¶ 5. The amount of force necessary depends on the attendant circumstances, including the

detainee’s level of resistance and his physical ability to resist. Id. FCE teams are briefed on the

physical and medical condition of each detainee and would be aware prior to an FCE if a

detainee has an exceptionally low body weight or a medical condition that might make him more

prone to injury. Id. With that information, the FCE team will use the minimal force needed to

help prevent any injury to the detainee during the FCE. Id. 2 Col. Bogdan’s declaration is included as Exhibit 1 to the Declaration of RDML Richard W. Butler, which

is attached to this filing. Col. Bogdan’s declaration was originally filed under seal as part of Respondents’ Opposition to Petitioner’s Application for a Preliminary Injunction. (ECF No. 214-5). Respondents filed a lightly redacted public version of Col. Bogdan’s declaration on May 23, 2014 (ECF No. 226-2); this opposition cites to that redacted version. Respondents do not rely on any of the redacted information for purposes of this opposition.


4

FCEs are used only as a last resort after the guard force has unsuccessfully tried to obtain

a detainee’s compliance through verbal persuasion. Col. Bogdan Decl. ¶ 7. This includes

advising the detainee of the ramifications of his continued refusal to comply and asking him if he

will comply without resistance. Id. FCEs may also be used in an emergency when time does not

permit efforts to verbally persuade the detainee to cooperate and follow orders. Id. If a detainee

approved for enteral feeding refuses to exit his cell for a scheduled enteral feeding, an FCE team

will be requested if that feeding is deemed medically necessary by medical staff. Id. ¶ 10. Once

requested and assembled, the FCE team will enter the cell, secure the detainee, and move him

directly to the enteral feeding restraint chair. Id.

Immediately following an FCE, the detainee will be evaluated by medical personnel and

checked for injury. Col. Bogdan Decl. ¶ 9. Detainees seldom sustain injuries that require

medical treatment. Id.

FCE Videos. JTF-GTMO makes video recordings (which include audio) of FCEs where

operationally feasible. Petitioner has filed 28 such videos with the Court as evidence in this case.

See Pet’r’s Notice of Filing, June Jun. 14, 2014, ECF No. 252 (informing Court of Petitioner’s

filing of three videos); Order, Jun. 20, 2014, ECF No. 262 (granting leave to file 13 videos);

Order, Jun. 25, 2014, ECF No. 267 (granting leave to file 12 videos). The declaration of the

Commander of JTF-GTMO during the period when many of these videos were made, Rear

Admiral Richard W. Butler (RDML Butler Decl.), describes the general contents of these videos

and explains that the FCE videos “could reasonably be expected to cause serious damage to

national security if disclosed,” id. ¶ 5, and, so, are properly classified SECRET, id. ¶ 7.3

3 Respondents have produced a total of 32 FCE videos to Petitioner’s counsel pursuant to Court orders; four

of these videos have not yet been filed with the Court. The declaration of RDML Butler is based on a review of the 28 videos entered in the record to date. Should the remaining four videos be entered into the record, the Court will be able to readily ascertain by viewing them that they are substantially the same as the 28 videos already in the record. Thus, the arguments presented in this opposition against public disclosure of FCE videos apply equally to the four videos that have not yet been filed with the Court.


5

Danger to Guantanamo Staff. FCEs are a military-detention-facility security procedure

used to maintain a safe and secure environment in the detention camps. RDML Butler Decl. ¶ 9.

Thus, video recordings of FCEs contain information concerning military operations and

vulnerabilities or capabilities of installations, infrastructures, or protection services relating to the

national security and are therefore classified pursuant to Sections l.4(a) and (g) of Executive

Order 13526.4 Id. ¶ 8.

FCE videos visually demonstrate FCE tactics, techniques, and procedures and how they

are adapted to different detainee threat scenarios, such as numbers of personnel involved for

particular response scenarios. Id. ¶ 10. They also reveal details of camp infrastructure and other

operational details. Id. This information has not previously been made available to the public

through descriptions or release of standard operating procedures. Id. In particular, the videos

reveal methods the FCE team use to enter a cell, restrain a detainee, conduct a search, remove a

detainee from a cell, move a detainee from location to location, secure a detainee at a location,

return a detainee to his cell, and release a detainee. Id. ¶ 11.

Release of these videos poses a risk to military personnel as detainees and other enemies

armed with such information can develop countermeasures to FCE tactics, techniques, and

procedures. RDML Butler Decl. ¶ 12. That detainees themselves experience FCEs does not

change the value videos of actual FCEs would have to permit detainees, alone or with the help of

others outside the camps, to more thoroughly assess FCE tactics, techniques, and procedures to

develop countermeasures. Id. Further, because aspects of an FCE take place outside the

detainee’s presence, the videos would disclose information that detainees cannot witness. Id.

Similarly, the videos would disclose safety and security procedures required for the process of

4 EO 13526 (“Classified National Security Information”) “prescribes a uniform system for classifying,

safeguarding, and declassifying national security information.” Sections 1.4(a) and (g) allow for the classification of information that “could reasonably be expected to cause identifiable or describable damage to the national security” and that pertains to “military plans, weapons systems, or operations” or “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security,” respectively.


6

enteral feeding, the manner in which a detainee is secured and unsecured in the restraint chair,

the layout of the enteral feeding space, location of equipment that could be used as a weapon,

and the number of personnel involved. Id. ¶ 13. Such disclosures provide the enemy with the

opportunity to search for weaknesses and vulnerabilities, exposing FCE and medical personnel to

possible attack by detainees, and could permit detainees to devise new ways to thwart the enteral

feeding process (or other processes where the restraint chair is used), thus placing the safety and

security of military personnel and the detainees at risk. Id. ¶¶ 13-14. This is not a hypothetical

scenario: detainees resisted enteral feeding through violent behavior that included assaults on

medical and guard force staff before use of the restraint chair began. Id. ¶ 13; see also Decl. of

MGen Jay W. Hood (March 10, 2006) ¶ 5, Resp’ts Opp. to Pet’rs App. For Prelim. Inj., Ex. 4,

(describing 189 detainee assaults against guard force and medical staff) (public version filed on

May 23, 2014, ECF No. 226-2).

In addition to demonstrating procedures and techniques, the videos Press Applicants seek

show different locations within the camp and, when taken together, would allow adversaries to

reconstruct considerable portions of the camp infrastructure, the location of the detainees within

the camp, and the physical layout. RDML Butler Decl. ¶ 15. This could threaten the security of

the camps, its guard force, and the detainee population and allow an adversary to discover how

detainees are housed in response to various acts of misconduct. Id. Once released to the public,

this information could then be provided to detainees through multiple avenues of

communication,5 allowing them to manipulate the system; disrupt good order and discipline

within the camps; and test, undermine, and threaten physical and personnel security. Id. ¶ 16-17.

5 These avenues of communication include communication from relatives or other persons who may obtain

the information and use various means of licit or illicit, direct or indirect communication or delivery to provide this information to detainees. Id. ¶ 17. Furthermore, if the videos were publicly released, then nothing would preclude counsel for the detainees showing the videos to the detainees as part of their case. Detainees could also watch the videos when they are shown by the media on the televisions at JTF-GTMO.


7

Some detainees resist as a means of confirming their continued resistance to the United

States in its ongoing overseas contingency operations. RDML Butler Decl. ¶ 18. If videos of

FCEs are released to the public, some detainees would likely respond by refusing to comply with

requests of the guard force in the hope that such resistance would result in forced cell extractions

that would be recorded by video and released to the public, thus providing terrorist elements with

propaganda to fuel their continued global hostilities against the U.S, resulting in more FCEs. Id.

Notwithstanding JTF-GTMO’s extraordinary efforts to ensure that forced cell extractions do not

result in injuries to the detainees or guards, risk of such injury is present during any forced cell

extraction, so more forced cell extractions would increase the risk of injury to both detainees and

military personnel, both of which would cause significant harm to U.S. national security. Id.

Use of Videos in Enemy Information Operations. Within each video, the detainee

subject to the FCE and other detainees can be heard talking. RDML Butler Decl. ¶ 19. Once

detainees know FCE videos can be released to the public, detainees could use future FCE videos

to communicate in disruptive ways using channels other than those provided for them by JTF-

GTMO and the International Committee of the Red Cross (“ICRC”). Id. Permitting

communications outside currently approved channels would further endanger national security

by allowing detainees to communicate with al-Qaeda and associated enemy forces not detained

at Guantanamo, either directly or via coded message. Id. Further, videos of detainees waiting to

be forcibly removed from a cell or being enterally fed would effectively communicate to the

outside world that the detainees are resisting the rules of the detention facility, thus providing

another useful propaganda tool for al-Qaeda and its affiliates. Id.

The enemy could use publicly released FCE videos in their information operations to

increase anti-American sentiment and inflame Muslim sensitivities overseas, thereby placing the

lives of U.S. service members at risk. RDML Butler Decl. ¶ 21-22. Moreover, enemy forces

could easily manipulate the videos to recruit new members. Id. ¶ 23. Manipulation could be


8

accomplished, for example, by editing audio or video portions of the videos to change the

chronology or combination of events, falsely indicate the mistreatment of the detainees when

none has occurred, falsely show physical signs of mistreatment, and combine portions of the

videos with other footage, such as anti-U.S. rallies or inflammatory speeches. Id. ¶.

Manipulation of visual imagery has already been used to increase recruitment, as a fund-raising

tool, and to encourage solidarity among extremist groups, as well as to encourage Western

converts into action in an attempt to show solidarity with extremists groups. Id. ¶ 24.

Exposure of Detainees to Public Curiosity. The Department of Defense has

incorporated the U.S. Government’s commitment to a firm policy of protecting detainees from

public curiosity, consistent with international law, as part of its policy on humane treatment. See

Department of Defense Directive 2310.01E, the Department of Defense Detainee Program;

RDML Butler Decl. ¶ 20. Public release of these videos could spur some to question the U.S.

commitment to upholding the principles of the Geneva Conventions and thus undermine our

military relationships with allies and partners abroad. Id. Moreover, public release of the videos

could lead other members of the international community to believe that the United States

regards the release of such images as appropriate, which could affect the practice of other states,

thereby diluting protections afforded U.S. service personnel in ongoing overseas contingency

operations and future conflicts and, thus, significantly damaging national security. Id.

DoD’s longstanding policy prohibits photographing or filming detainees unless

specifically authorized for legitimate purposes. RDML Butler Decl. ¶ 26. This policy reduces

the risk that detainees custody would, through the inappropriate release of their images, be

subjected to public insult, curiosity, embarrassment, unwanted exposure, harassment, or

exploitation. Id.. Circumvention of this policy by public release of portions of the FCE and

enteral-feeding videos would invade the personal privacy of the subject detainees and that of the

broader detainee population generally, because it would risk subjecting detainees to public


9

curiosity and humiliation and single out detainees who have violated camp rules as being

recalcitrant or, conversely, subject detainees who have not violated camp rules (and thus, are not

being subject to FCEs) to accusations of cooperating with the enemy. See Id. ¶ 27. Even videos

of detainees in which their faces are not visible are considered by some to be a serious breach of

detainees’ privacy. Id. ¶ 31 (describing outrage of one detainee’s military commission defense

counsel and reports of anger from those viewing such a video).

Videos of FCEs raise such concerns to an even greater degree, because when the videos

were taken, no efforts were made to conceal detainee faces, and because video of detainees being

subject to FCEs and being enterally fed show detainees in a potentially unfavorable light and are

thus inherently more sensitive, for example, than videos of unidentified detainees walking

around the detention facility grounds or portrait-type photos of detainees taken by the ICRC to

give to detainees’ family members. RDML Butler Decl. ¶¶ 20, 32. Even if the detainee who is

depicted in a video wants that video distributed publicly, disclosure of the videos would still

implicate privacy-type concerns, undermine DoD processes for protecting detainees from public

curiosity, potentially subject detainees not depicted in FCE videos to approbation for their

perceived lack of resistance, and set a precedent for public disclosure of videos that could

undermine objections of detainees who do not consent to public disclosure. Id. ¶ 32

Unclassified but Sensitive Information. The videos also contain personal identifying

information such as the image, name (actual or pseudonym), and voice of FCE team members

when they identify themselves at the beginning of the video. RDML Butler Decl. ¶ 38. During

this identification, they also describe their individual roles on the FCE team. Id. The videos also

capture the faces and other identifiable images of other personnel in the facility who are not

participating in the FCE or the enteral feeding. Id. ¶ 39. All of the non-detainee individuals who

are depicted in the videos are personnel below the level of General Officer or Senior Executive

Service assigned to JTF-GTMO at Naval Station, Guantanamo Bay, Cuba. Id. ¶ 40. In addition


10

to the information disclosed during the introduction, personal identifting information is

interspersed throughout the FCE recordings, which provides opportunities during every few

seconds of video for identifying multiple JTF-GTMO personnel.6 Id. ¶ 41. Such disclosure

places these service members and their families at considerable risk because, if the identities of

such personnel became publicly known, terrorist groups or their sympathizers, former detainees,

or members of detainees’ families could seek to retaliate by doing harm to the personnel or their

families. Id.

Additionally, in some of the videos, information can be seen posted or written on walls

and bulletin boards. RDML Butler Decl. ¶ 45. This information can be read to varying degrees

and likely contains force protection information such as rosters, schedules, and contact

information for JTF-GTMO personnel. It might be possible for a member of the public to

enhance these images to reveal what is posted. Id. Further, rosters, schedules, and contact

information contain personal identifying information as well as internal work contact

information for personnel assigned to the Joint Detention Group (JDG), JTF-GTMO, which

enforces the disciplinary policies and rules governing the detention of the enemy combatants. Id.

¶ 46. The disciplinary procedures are used to maintain good order and discipline across the

detainee population, a critical law enforcement function7 of the JDG personnel at Guantanamo.

Id. The release of the personal information as well as the contact information for the JDG

personnel could reasonably expect to constitute an unwarranted invasion of their personal

privacy and create risk of harassment and retaliation. Id. ¶ 47.

SECRET Classification of Videos. Release of the information contained in the videos

at issue would threaten military detention operations, including the secure and orderly operation

6 This means that this personally identifying information is intermingled with the classified information

present throughout the videos.

7 The detention of persons at Guantanamo pursuant to the AUMF as informed by the laws of war is not principally a law enforcement effort. However, there is a component to the detention operations—enforcing rules and maintaining order in the facility—that necessarily involves law enforcement functions.


11

of the camps, and would improperly reveal the identities of intelligence sources. RDML Butler

Decl. ¶34. For these reasons, RDML Butler, who is an Original Classification Authority

authorized to conduct classification reviews and to make classification and declassification

decisions regarding national security information at the SECRET level, has determined that the

information contained in the videos remains properly classified under EO 13526, Sections 1.4(a),

(c),8 and (g). Id. ¶ 1, 34. No portion of these videos has ever been publicly released, and there

are no meaningful portions of the videos that can be segregated from the classified information

contained therein. Id. ¶ 48. There is a significant risk that public release, in whole or in part, of

videos showing forced cell extractions or enteral feedings would cause serious damage to

national security. Id. ¶ 48.

II. RELEVANT COURT ORDERS

A. Guantanamo Habeas Proceedings

When the Supreme Court held in Boumediene v. Bush that this Court has jurisdiction to

hear habeas petitions brought by detainees at Guantanamo Bay, it recognized the legitimate

government interest in protecting classified information, such as “sources and methods of

intelligence gathering,” and noted its expectation “that the District Court will use its discretion to

accommodate this interest to the greatest extent possible.” 553 U.S. 723, 796 (2008). Numerous

rulings made by the judges of this Court reflect the seriousness with which it has strived to meet

that expectation. Indeed, no Court has ordered the Government to release classified information

to the public in any Guantanamo Bay habeas case.

8 Section 1.4(c) of EO 13526 allows for the classification of information that “could reasonably be expected

to cause identifiable or describable damage to the national security” and that pertains to “intelligence activities (including covert action), intelligence sources or methods, or cryptology.” As this Court knows, detainees have provided significant amounts of intelligence; those who have can be considered intelligence sources. RDML Butler explains in his declaration that, throughout each video, images of Petitioner, a potential intelligence source, can be seen and that imagery and video of detainees who are potential intelligence sources are properly classified SECRET in accordance with Section 1.4(c) of the Executive Order. Id. ¶ 25.


12

1. Protective Order

The Protective Order entered in this case (ECF No. 57) provides for extensive protection

of classified information, establishing who will have access to classified information, id. ¶ 16,

where classified information may be stored and used, id. ¶¶ 21-26, and to whom Petitioner’s

counsel may disclose classified information, id. ¶¶ 28-31. The Protective Order draws a sharp

distinction between classified information, the identification of which is the sole responsibility of

the executive branch, and protected information, concerning which the court retains ultimate

authority to protect or not. Compare id. ¶ 8 (defining “classified information” for purposes of

the Protective Order as “information that was classified by any Executive Branch agency in the

interests of national security or pursuant to Executive Order”); id. ¶ 29 (requiring the privilege

team to forward requests for release of classified information to the “appropriate government

agency authorized to declassify the classified information for a determination” and providing for

no court to review that determination) with id. ¶ 10 (defining protected information as

information that the Court deems “not suitable for public filing”); ¶ 34 (requiring Petitioners’

counsel to treat information designated by the Government “as protected unless and until the

Court rules that the information should not be designated as protected”); ¶ 39 (allowing

Petitioner’s counsel to disclose protected information to a detainee after obtaining express

permission of the Government or the Court). The Protective Order expressly requires that

documents containing classified information be filed through the Court Information Security

Officer and not publicly filed on ECF unless and until the appropriate government agencies have

determined that all classified information has been redacted. Id. ¶ 47.

2. Public Factual Returns

The sharp distinction between classified and protected information was reinforced when

Judge Hogan issued a consolidated ruling regarding the public filing of unclassified factual

returns in this and other Guantanamo cases. In re Guantanamo Bay Detainee Litig., 624 F.Supp.

2d 27 (D.D.C 2009) (Hogan, J.) (“In re Guantanamo Bay Detainee Litig. I”). As part of this


13

ruling, Judge Hogan considered a motion by several members of the press for public access to

unclassified factual returns. Id. at 34-35. The court outlined the applicable standard:

The First Amendment protects public access to court records and proceedings if the court determines that such access (i) has historically been available and (ii) “plays a significant positive role in the functioning of the particular process in question.”

Id. at 35 (quoting Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9, (1986) (“Press–

Enterprise II”)). The court noted that this is only a qualified right: “the government may

overcome that right by demonstrating ‘an overriding interest based on findings that closure is

essential to preserve higher values and is narrowly tailored to serve that interest.’ Id. (quoting

Press–Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press–Enterprise I”).

The court held that, though the issue was undecided in the D.C. Circuit, access to civil

proceedings, including those concerning habeas petitions, had historically been available. Id. at

35-36. The court also conditionally concluded that providing the unclassified returns to the

public would play a significant positive role in the proceedings, but noted that “any positive role

would be severely diminished if the public gains access to classified information” or if providing

unclassified information to the public interfered with adjudication of the habeas petitions. Id. at

36-37 (emphasis added).

The court then considered the Government’s argument that disclosure might lead to

disclosure of classified information inadvertently or erroneously left unredacted in the

unclassified returns. The court recognized that “protecting national security is a ‘higher value’”

than public access, but found that the government request to withhold even information already

in the public domain to mitigate this risk was not narrowly tailored. Id. at 38. Because the

Government’s request was “distinct from a government request to protect specific classified

information,” the court found “that under the First Amendment the public has a limited right to

access the unclassified factual returns in these habeas proceedings.” Id. (emphasis added).

Finally, abiding by the Supreme Court’s directive in Boumediene to protect classified


14

information from disclosure, the court granted the Government significant time to review the

unclassified returns to ensure that no classified information remained unredacted, and ordered

the Government to file a motion with the merits judge in each relevant case seeking permission

to treat as protected any unclassified information it wished to redact from the publicly filed

returns. Id. at 33-34, 38-39.

During its review, the Government identified six categories of unclassified but sensitive

information that warranted protection from public disclosure, and moved the court to deem those

categories of information as protected. In re Guantanamo Bay Detainee Litig., 787 F.Supp. 2d 5

(D.D.C. 2011) (Hogan, J.) (“In re Guantanamo Bay Detainee Litig. II”). Of particular relevance

here, the first of those categories was “names and other information that would tend to identify

certain U.S. Government employees or contractors—specifically, law enforcement officers,

agents, translators, intelligence analysts, or interrogators, all below the Senior Executive Service

or General Officer level—as well as members (state and local law enforcement personnel) of the

FBI’s Joint Terrorism Task Force (“JTTF”), and family members of detainees.” Id. at 15-16.

In analyzing the Government’s request to protect unclassified information from

disclosure, the court applied a two-step test taken from Parhat v. Gates, 532 F.3d 834 (D.C. Cir.

2008). First, the Government must proffer “a specific, tailored rationale for protecting a general

category of information.” In re Guantanamo Bay Detainee Litig. II, 787 F.Supp. 2d at 13. This

rationale does not have to “be tailored to a particular case.” Id. (citing Ameziane v. Obama, 620

F.3d 1, 6-7 (D.C. Cir. Oct. 6, 2010) (redacted)). And “the government’s rationale need not be so

specific that it precludes any generalized categorization,” though “the narrower the category for

which the government seeks protection, the more likely the government’s rationale will be

sufficiently tailored.” Id. (internal quotes omitted). Second, the specific information the

Government has designated for protection must fall within the category identified in the first


15

step. Id. Assessing this question “requires the Court to evaluate whether the rationale for the

category applies to the designated information.” Id. at 13-14.

The court further held that “if the government satisfies the two-step test outlined in the

Parhat decision, the district court is required to defer to the government’s assessment of the

harm to foreign relations and national security that would result from disclosure of the

[unclassified] information the government seeks to protect.” In re Guantanamo Bay Detainee

Litig. II, 787 F.Supp. 2d at 14 (citing Ameziane, 620 F.3d at 7). “[T]he failure to give deference

when it is due is error” because “Parhat did not free courts to substitute their own policy

judgments for those of the executive.” Ameziane, 620 F.3d at 7-8.

The court found that the Government’s request to protect certain names and other

identifying information satisfied the first Parhat step, citing in support of this conclusion, among

other things, the following factors: (1) personal identifying information of members of the

armed forces assigned to units that are “involved in collecting, handling, disposing or storing of

classified information and materials” are exempt from FOIA disclosure under 10 U.S.C § 130b;9

(2) public release of the personal identifying information would “compromise their safety by

making it possible for people or organizations sympathetic to the detainees to commit retaliatory

acts to harm them or their families,” and (3) “disclosing identifying information about covered

individuals also subjects them to unwanted public and media attention and scrutiny, which is an

intrusion of their privacy, risks their and their families’ safety, and could expose them to

embarrassment or harassment while conducting their official duties and private affairs.” In re

Guantanamo Bay Detainee Litig. II, 787 F.Supp. 2d at 15-17.10

9 The same statute also exempts from disclosure personal identifying information of service members

assigned to units “located outside the United States and its territories.” 10 U.S.C § 130b(c)(3); see RDML Butler Decl. ¶ 43.

10 The court did not address the second Parhat step, whether the specific information sought to be protected falls into the general category, reserving that question for the merits judges hearing each individual motion to protect information in a specific unclassified return. Id. at 26.


16

B. Judge Bates’ Upholding of Denial of FOIA Request for FCE Videos

Although the public availability of FCE videos has not been adjudicated within the

Guantanamo Bay habeas cases, it has been adjudicated in the context of a Freedom of

Information Act (FOIA) case. Int’l Counsel Bureau v. U.S. Dep’t of Def., 906 F. Supp. 2d 1

(D.D.C. 2012) (Bates, J.). The plaintiffs in that case requested several videos depicting FCEs

involving certain detainees. The Government asserted FOIA Exemption 1; to succeed with this

assertion, it was required to “show both that the information was classified pursuant to the proper

procedures, and that the withheld information meets the standard for classification.” Id. at 4. In

granting the exemption, the court relied on the Government’s declarations that listed many of the

same concerns described in RDML Butler’s declaration here: (1) that detainees could use the

videos to communicate; (2) that even short segments showing detainees waiting to be forcibly

removed from their cells could allow al-Qaeda to create propaganda; (3) that public disclosure

would encourage detainees to engage in disruptive behavior that would require more frequent

FCEs; (4) that public release of images of detainees without a legitimate purpose would damage

the relationship between the United States and the international community; and (5) that the

videos could be manipulated to be used as propaganda that could inflame anti-American

sentiment. Id. at 6.

The court also rejected plaintiff’s argument that the Government’s prior release of written

summaries and extensive documentation of FCEs undermined the Government’s national

security contentions because solo images from the FCE videos differed from the previous

information the Government had released. Id. at 7; see also Wolf v. CIA, 473 F.3d 370, 378

(D.C.Cir.2007) (to prevail on argument that information should be released because it has

already been previously disclosed, “the information requested must be as specific as the

information previously released . . . [and] must match the information previously disclosed”);

Judicial Watch, Inc. v. U.S. Dep’t of Def., 857 F.Supp.2d 44, 48 (D.D.C.2012) (“A picture may

be worth a thousand words. And perhaps moving pictures bear an even higher value. Yet, in


17

this case, verbal descriptions of the death and burial of Osama Bin Laden will have to suffice, for

this Court will not order the release of anything more.”).

ARGUMENT

I. THERE IS NO FIRST AMENDMENT OR COMMON- LAW RIGHT OF ACCESS TO CLASSIFIED INFORMATION

A. The First Amendment Right of Access to Court Proceedings Does not Extend to Classified Information

As Judge Hogan noted in his prior ruling in this and other Guantanamo cases, it is

unsettled in the D.C. Circuit whether there is a First Amendment public right of access to civil

proceedings at all. See In re Guantanamo Bay Detainee Litig. I, 624 F. Supp. 2d at 35. But the

law is clear that there is no First Amendment right of access to judicial records that have not

traditionally been available to the public. Before a First Amendment right of access will attach

to a particular proceeding, the entity seeking access must make two showings: first, that “the

place and process” to which access is sought “have historically been open to the press and

general public,” and, second, that “public access plays a significant positive role in the

functioning of the particular process in question.” Press-Enterprise Co. v. Super. Ct. of Cal., 478

U.S. 1, 8-9 (1986) (“Press-Enterprise II”) (criminal proceeding). A failure to make either

showing is fatal to a First Amendment access claim. United States v. El-Sayegh, 131 F.3d 158,

161 (D.C. Cir. 1997); In re Reporters Comm., 773 F.2d 1325, 1332 (D.C. Cir. 1985). In any

event, the Press Applicants cannot demonstrate a First Amendment right of access to the FCE

videos here under the Press-Enterprise II test.11

11 Even where a First Amendment right of access attaches to a particular proceeding, disclosure is not

appropriate where the Government demonstrates that protecting the information at issue is “‘essential to preserve higher values’” and is “‘narrowly tailored.’” In re Guantanamo Bay Detainee Litig. I, 624 F.Supp. 2d at 35 (quoting Press Enterprise Co. v. Super. Ct., 464 U.S. 501, 510 (1984) (“Press-Enterprise I”). Of course, should the Court find that there is no First Amendment right of access here, it would not need to reach this issue. Nonetheless, Respondents have demonstrated that protection of the FCE videos is essential, and narrowly tailored, to preserve higher values. See infra Argument § II.


18

1. There is no History of Public Access To Classified Information Entered in Habeas Proceedings

In determining whether a history of public access exists, a court must make a

determination not for an entire case, but rather about each specific proceeding within the case

and the type of information involved. See United States v. Poindexter, 732 F. Supp. 165, 167

(D.D.C. 1990) (holding that although there was a public right of access to criminal trials, there

was no historical access in such a case to pretrial depositions of a former president involving

classified information). Thus, although Judge Hogan did find that “under the First Amendment

the public has a limited right to access the unclassified factual returns in these habeas

proceedings,” he did not hold that there was a tradition of such access to every aspect of these

proceedings, and he expressly did not order access to any classified information. In re

Guantanamo Bay Detainee Litig. I, 624 F. Supp. 2d at 38 (emphasis added); cf. McGehee v.

Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“As a general rule, citizens have no first

amendment right of access to traditionally nonpublic government information.”)

This Court recognizes the appropriateness of non-public filing of classified information.

Indeed, the Protective Order in this case forbids the disclosure of classified information and

requires that all filings that contain classified information be made non-publicly through the

Court Information Security Officer. See supra Background § II.A.1. It also makes clear that the

determination of what information is classified is left to the Executive Branch. Protective Order

¶ 8 (committing designation of classified information to Executive Branch agencies); id. ¶ 29

(committing decision to declassify classified information to same); id. ¶ 47 (committing

determination of whether specific filings contain classified information to same). In other cases

involving classified information, this Court and the Court of Appeals have entered similar

protective orders. See, e.g., Bismullah v. Gates 501 F.3d 178, 194-204 (D.C. Cir. 2007)

(providing for non-public filing of classified information through the Court Security Officer and

prohibiting disclosure of classified information to unauthorized persons), cert. granted, judgment


19

vacated, 554 U.S. 913 (2008) and on reconsideration, 551 F.3d 1068 (D.C. Cir. 2009); United

States v. Lockheed Martin Corp., Case No. 98-CV-731, 1998 WL 306755 (D.D.C. May 29,

1998) (Sullivan, J.) (providing for closed pretrial proceedings and trial sessions involving

classified information; non-public, under-seal filing of classified information; and designation of

an Executive Security Committee comprised of representatives of agencies to make

determinations regarding designation of classified information); Northrop Corp. v. McDonnell

Douglas Corp., 751F.2d 395, 401 (D.C. Cir. 1984) (protective order sealing classified

information).

The Court of Appeals, likewise, has recognized the propriety of denying access to

classified material in litigation even when access is being sought by a party to the suit rather

than, as here, members of the public who are non-parties. See, e.g., Holy Land Found. v.

Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003); People’s Mojahedin v. Dep’t of State, 327 F.3d

1238, 1242 (D.C. Cir. 2003); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004); Bismullah, 501

F.3d at 198 (permitting the Government to withhold “highly sensitive [classified] information”

from opposing counsel and submit such information to the court ex parte and in camera). It has

declined to allow counsel for a former federal employee to access classified information from his

client. Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003). If it is permissible to limit the

access of private litigants and their counsel to classified information that bears on their claims, it

follows that withholding access does not violate a First Amendment right of members of the

public, such as the non-party news organizations here.12

The Classified Information Procedures Act, which requires that pre-trial hearings

involving classified evidence in criminal trials be held in camera, is further evidence that there is

no history of access to classified information entered in court proceedings. See Poindexter, 732

12 Press Applicants enjoy a right of access to court proceedings no greater than that available to the general

public. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (“[M]edia representatives enjoy the same right of access as the public. . . ”).


20

F. Supp. at 167 (citing congressional mandate expressed in CIPA that pretrial proceedings

involving classified information be held in camera in support of its order excluding the press

from a deposition likely to involve classified information).13

Accordingly, there is a long history and tradition of courts protecting classified

information from public disclosure; the Protective Order’s prohibition against public disclosure

of the classified videos is well within the bounds of that tradition. The Press Applicants,

therefore, cannot prevail on the first prong of the First Amendment analysis here.

2. Public Access to Classified Information Would not Play a “Significant Positive Role” in the Functioning of these Proceedings

With regard to the second required analytical prong, Judge Hogan found that public

access to unclassified factual returns in these cases would have a positive role in habeas

proceedings precisely because they were unclassified: “any positive role would be severely

diminished if the public gains access to classified information.” In re Guantanamo Bay Detainee

Litig. I, 624 F.Supp. 2d at 37. In making that finding, Judge Hogan expressly declined to

“question, generally, government determinations that providing classified information to the

public would cause serious damage to national security.” Id.

It is important to be clear that the effect-of-public-access prong is not a general public

interest standard; it speaks solely to the effect of public access on “‘the functioning’ of these

habeas proceedings.” Id. at 36 (quoting Press-Enterprise II, 478 U.S. at 8). To the extent Press

Applicants argue that their request serves the public interest in oversight of the Executive branch

in general and detention operations at Guantanamo in particular,14 such concerns do not

13 While Press Applicants cite Poindexter for the proposition “CIPA obviously cannot override a

constitutional right of access,” they take this quotation badly out of context. The complete footnote reads, “While CIPA obviously cannot override a constitutional right of access, it is indicative of a tradition and common usage in a situation involving sensitive information.” Poindexter, 732 F. Supp. at 167, n.9.

14 See, e.g., Mot. to Unseal at 24-25 (discussing public interest “in evidence documenting the Government’s response to the detainees’ hunger strike” and the “the relevance of the videotape evidence to the ongoing intense debate over the use of force-feedings”).


21

implicate the public’s evaluation of the “judicial function,” and are not properly considered in

determining the public’s right of access to judicial records. See El-Sayegh, 131 F.3d at 163

(when a party seeks information to “evaluat[e] the performance of” the Government “in [its]

dealings with” an individual, the party is not evaluating “the judicial function” and the

“appropriate device” for obtaining the information is not a request for “access to the records of

the judiciary” but “a [FOIA] request addressed to the relevant agency”); see also Int’l Counsel

Bureau, 906 F. Supp. 2d at 7 (finding FCE videos to be properly classified SECRET and

upholding agency’s denial of FOIA request).

Because the release of classified information would not serve a significant positive role in

the functioning of these habeas proceedings, Press Applicants do not satisfy the second prong of

the First Amendment analysis here.

B. The Common Law Provides no Public Right of Access to Classified Information

Neither this Court nor any other has ever extended a common-law right of access to

classified information. Press Applicants, therefore, seek the creation of a new common-law right

of access to classified documents in civil cases, not the application of an existing common-law

right. Although federal common law creates a qualified right of access to public records in

general, see Wash. Legal Found. v. US. Sentencing Comm’n, 89 F.3d 897, 906 (D.C. Cir. 1996),

the contours of the right are “largely controlled by the second of the First Amendment criteria—

the utility of access as a means of assuring public monitoring of judicial or prosecutorial

misconduct.” El-Sayegh, 131 F.3d at 161. Those criteria are not satisfied here because public

release of the videos is not essential to the functioning of the judicial process and the release of

classified information would impair these proceedings. See supra Argument § I.A.2; see also In

re Guantanamo Bay Detainee Litig. I, 624 F.Supp. 2d. at 39 (holding that a common-law right of

public access to unclassified returns exists “[a]s long as public access does not come at the

expense of the litigation interests of petitioners or national security”).


22

More fundamentally, the common law does not trump Congressional legislation signed

into law by the President. The common-law right of access to public records, like other federal

common law rights, “is subject to the paramount authority of Congress,” and “when Congress

addresses a question previously governed by . . . federal common law[,] the need for such an

unusual exercise of lawmaking by federal courts disappears.” City of Milwaukee v. Illinois, 451

U.S. 304, 314 (1981) (internal quotation marks omitted). Courts, therefore, should not create

new common-law rights in conflict with the policy goals underlying Congressional legislation.

Here, Congress has made the policy judgment that classified information should not be disclosed

to the public and has embodied that judgment in legislation. Thus, the Freedom of Information

Act exempts from disclosure those matters that are “specifically authorized under criteria

established by an Executive order to be kept secret in the interest of national defense or foreign

policy and . . . are in fact properly classified pursuant to such Executive order.” 5 U.S.C. 552 §

(b)(l)(A)-(B); see also 18 U.S.C. § 1924 (criminal penalties for unauthorized removal and

retention of classified documents); 50 U.S.C. §§ 421, 783 (criminal penalties for unauthorized

disclosure of classified information); 18 U.S.C. App. 3 § 6(e)(1) (Classified Information

Procedures Act).

Taken together, these provisions embody a broad Congressional policy against

unauthorized disclosure of classified information, including disclosure to the public. That policy

precludes the creation of a conflicting common law right of access, for the courts may not

“continue to rely on federal common law by judicial[ ] decree[ ] . . . when Congress has

addressed the problem.” City of Milwaukee, 451 U.S. at 315 (internal quotation marks and

citation omitted).

II. CONTINUED PROTECTION OF THE VIDEOS FROM DISCLOSURE IS NECESSARY TO PREVENT SERIOUS HARM TO NATIONAL SECURITY

Even were this Court to find that there is a public right of access to classified information

like that at issue here in the context of these proceedings in this case, disclosure would not be


23

appropriate if the Government demonstrates that sealing the videos is “‘essential to preserve

higher values’” and is “‘narrowly tailored.’” In re Guantanamo Bay Detainee Litig. I, 624

F.Supp. 2d at 38 (quoting Press-Enterprise I, 464 U.S. at 510). This test has also been phrased

as whether the Government has a “compelling interest in keeping the materials secret.” In re

Application of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83,

90 (D.D.C.2008) (Lamberth, J.). “It is obvious and unarguable that no governmental interest is

more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981)

(internal quotation marks omitted). Judge Hogan, in his opinion on public disclosure of factual

returns, noted that protection of national security is a “higher value,” and distinguished the

dispute about unclassified faction returns “from a government request to protect specific

classified information.” In re Guantanamo Bay Detainee Litigation I, 624 F.Supp. 2d at 38.

The Court of Appeals made this distinction clear in Bismullah v. Gates when it allowed

the Government to withhold classified “highly sensitive information” even from security-cleared

detainee counsel because “‘[i]t is within the role of the executive to acquire and exercise the

expertise of protecting national security. It is not within the role of the courts to second-guess

executive judgments made in furtherance of that branch's proper role.’”15 501 F.3d at 187-88

(quoting Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 932 (D.C.Cir.2003)).

The court drew a sharp distinction between the Government’s determination regarding classified

information, which it refused to “second-guess,” and the Government’s determination regarding

unclassified, but sensitive, information, the disposition of which the court reserved for itself. Id.

at 188.

Similarly, the Fourth Circuit, in United States v. Moussaoui, declined the implicit request

of press intervenors there that the court “review, and perhaps reject, classification decisions

15 The court in Bismullah was reviewing the final decision of a Combatant Status Review Tribunal pursuant

to the Detainee Treatment Act, Pub. L. No. 109-148, § 1005(e)(2), which pre-existed habeas review established in Boumediene. Bismullah, 501 F.3d at 182.


24

made by the executive branch.” 65 F. App’x 881, 887, n.5 (4th Cir. 2003) ( citing United States

v. Smith, 750 F.2d 1215, 1217 (4th Cir.1984) (“[T]he government . . . may determine what

information is classified. A defendant cannot challenge this classification. A court cannot

question it.”)). The Moussaoui court noted “that there can be no doubt that the Government's

interest in protecting the security of classified information is a compelling one” and concluded

“that all classified information filed with this court in relation to this appeal will remain under

seal.” Id. at 887 (citing Dep’t of Navy v. Egan, 484 U.S. 518, 527, (1988)).

Even where courts have looked past the Government’s decision to classify information,

they still show great deference to the Government’s determination. The Executive Branch is

responsible for the protection and control of national security information. See Dep’t of Navy v.

Egan, 484 U.S. at 527 (noting that the Executive’s authority to classify information arises from

the President’s role as Commander in Chief under Art. II, § 2 of the Constitution). Because the

Executive has the constitutional responsibility to protect classified information, authority to

determine who may have access to classified information is “committed by law to the

appropriate agency of the Executive branch.” Id. at 527, 529.

The deference that courts show to the Executive regarding access to classified

information is rooted not only in the constitutional role of the President, but also rests on

“practical” concerns: “the Executive and the intelligence agencies under his control occupy a

superior position to that of the courts in evaluating the consequences of a release of sensitive

information.” El-Masri v. United States, 479 F.3d 296, 305 (4th Cir. 2007). As Egan instructed,

“[f]or ‘reasons . . . too obvious to call for enlarged discussion,’ the protection of classified

information must be committed to the broad discretion of the agency responsible, and this must

include broad discretion to determine who may have access to it.” 484 U.S. at 529 (quoting CIA

v. Sims, 471 U.S. 159, 170 (1985)).


25

In FOIA cases, for example, where the Government seeks to withhold classified

information, “an agency must show both that the information was classified pursuant to the

proper procedures, and that the withheld information meets the standard for classification.”16

Int’l Counsel Bureau, 906 F. Supp. 2d at 4. But this is not a heavy burden. Morley v. CIA, 508

F.3d 1108, 1124 (D.C. Cir. 2007) (“[T]he text of Exemption 1 itself suggests that little proof or

explanation is required beyond a plausible assertion that information is properly classified.”).

Declarations submitted in support of withholding of classified information “merit ‘substantial

weight.’” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King v.

U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C.Cir.1987)). Thus, where the Government provides

declarations that provide “plausible explanations of the harm to national security from the release

of even solo images of a detainee, and explanations for why the [FCE] videos were appropriately

classified in their entirety,” the Court must accept those statements at face value and allow the

exemption. See Int’l Counsel Bureau, 906 F. Supp. 2d at 6 (relying on Government declaration

documenting many of the same harms documented in declaration of RDML Butler that would

arise from public disclosure of FCE videos).

Press Applicants cite no cases that directly support their remarkable assertion that proper

classification of national security information does not satisfy the “substantial probability of

harm” standard articulated in Press-Enterprise II. Rather, they simply parrot the words

“substantial probability” without providing any case comparing that standard to the requirements

for classifying national security information.17 See Mot. to Unseal at 19. Nor do Press

16 Although the right to obtain records under FOIA is a statutory right, courts often analogize to it when

deciding whether court records may be withheld from the public. See, e.g., In re Guantanamo Bay Detainee Litig. II, 787 F.Supp. 2d at 16, 19 (citing exemptions to disclosure under FOIA in support of allowing redaction of certain information); id. at 19-20 (noting that “statutorily-recognized privileges and exemptions from disclosure . . . illustrate the recognition that it is sometimes necessary to withhold from public disclosure information deemed sensitive . . . even though the information is not classified”). Of course, information that is properly classified is itself exempt from disclosure under FOIA. 5 U.S.C. § 552(b)(1).

17 In re Wash. Post Co., 807 F.2d 383 (4th Cir. 1986), is the only one of the cases that Press Applicants cite to assert that the standard for classifying information does not satisfy the standard for sealing judicial records that addresses classified information. In that case, though, the court of appeals found that the trial court had not


26

Applicants’ general assertions that some documents are classified that should not be, id. at 19-20,

or that classification is being used improperly to hide unlawful behavior or prevent

embarrassment, id. at 20, have any relevance here, where there is significant evidence of the

damage that would be caused by release of the information at issue and no evidence of improper

use of classification authority.

Deference is also shown even where courts address the sealing of unclassified but

sensitive national security information. For example, Judge Hogan held that where the

Government proffers “a specific, tailored rationale for protecting a general category of

information” and demonstrates that the information it seeks to seal properly falls within that

category, “the district court is required to defer to the government’s assessment of the harm to

foreign relations and national security that would result from disclosure of the information the

government seeks to protect.” In re Guantanamo Bay Detainee Litig. II, 787 F.Supp. 2d at 13-14

(citing Ameziane, 620 F.3d at 7). Parhat, the Court of Appeals case that set forth this two-step

test, “did not free courts to substitute their own policy judgments for those of the executive,”

and, therefore, “the failure to give deference when it is due is error.” Ameziane, 620 F.3d at 7-8.

A. There is a Substantial Probability that Disclosure of the FCE Videos Will Cause Serious Harm to a Compelling Interest

As discussed in more detail above, Background § I, RDML Butler has listed several

serious harms that are likely to occur if the videos are disclosed to the public and that justify

classifying the videos as SECRET. First, disclosing the videos poses a risk to military personnel

as detainees and other enemies armed with such information can develop countermeasures to

FCE tactics, techniques, and procedures. RDML Butler Decl. ¶ 12. Second, disclosure of the

physical layout of the camp infrastructure would allow an adversary to discover how detainees

complied with the applicable procedural requirements or applied the proper standard for closing a criminal trial in the Fourth Circuit and remanded to the trial court with instructions to apply the applicable standard. The court of appeals did not analyze whether proper classification suffices to seal a record.


27

are housed in response to various acts of misconduct, information that could be provided to

detainees to allow them to manipulate the system, disrupt good order and discipline within the

camps, and enable them to test, undermine, and threaten physical and personnel security. Id.

¶ 16-17. Third, some detainees would likely respond to public release of FCE videos by

behaving in such a way as to require more frequent FCEs that would be recorded and potentially

released to the public, increasing the risk of injury to both detainees and military personnel at

Guantanamo. Id. ¶ 18. Fourth, the videos could be altered and manipulated to increase anti-

American sentiment and inflame Muslim sensitivities overseas, thereby placing the lives of U.S.

service members at risk.18 Id. ¶ 21-22. Fifth, release of the videos would be contrary to the

Government’s commitment to a firm policy of protecting detainees from public curiosity and

could affect the practice of other states in this regard, which would in turn dilute protections

afforded U.S. service personnel in ongoing overseas contingency operations and future conflicts.

Id. ¶ 20. Dilution of these protections could significantly damage national security. Id. See Int’l

Counsel Bureau, 906 F. Supp. 2d at 6 (citing several of these harms in finding that videos of

FCEs—even still images from such videos—were properly classified at the SECRET level and

thus properly withheld under FOIA).

In addition to this information, which as RDML Butler explains is properly classified at

the SECRET level, there is information interspersed every few seconds throughout the videos

that, while not classified, is properly treated as protected under the protective order. As

explained above, the videos contain personally identifying information about members of the

FCE team and other service members. RDML Butler Decl. ¶ 38. Judge Hogan has already ruled

that the Government can redact similar personally identifying information from the public

unclassified returns, notwithstanding the public’s First Amendment right of access. See In re

18 In addition, once detainees know that FCE videos might be publicly released, they could use them to

communicate with the public in disruptive ways using channels other than those provided for them by JTF-GTMO and the ICRC. RDML Butler Decl. ¶ 19.


28

Guantanamo Bay Detainee Litig. II, 787 F.Supp. 2d at 15-16 (allowing redaction of “names and

other information that would tend to identify certain U.S. Government employees” because

release of that information would “compromise their safety by making it possible for people or

organizations sympathetic to the detainees to commit retaliatory acts to harm them or their

families” and expose them to embarrassment or harassment).

Press Applicants present no evidence that the videos are improperly classified, let alone

enough evidence to overcome RDML Butler’s specific, compelling explanation of the substantial

probability of significant harms should the videos be disclosed, an explanation that merits

substantial weight.

B. Because No Meaningful Portion of the Videos are Devoid of Classified or Sensitive Information, Sealing the Videos is Narrowly Tailored to Prevent Harm

While the Press Applicants suggest that some portions of the videos could be released,

Mot. to Unseal at 24, the nature of the harms described above make it clear that every

meaningful portion of the FCE videos contains information that must not be disclosed. First, any

portion of the video containing an image of the Petitioner could expose him to public curiosity,

which could lead to a perception in the international community that the United States believes

release of images of detainees is appropriate; this perception could dilute protections available to

military service members in overseas conflicts. RDML Butler Decl. ¶ 20. This is true whether

or not his face can be seen or he is visually identifiable.19 See id. ¶ 31 (describing outrage and

anger over release of “B-roll” videos which show a detainee, but not his face). Even if it were

appropriate to release images of the Petitioner, releasing video showing the actual FCE tactics,

techniques, and procedures could still cause harm by allowing adversaries to develop

countermeasures. Id. ¶ 12. And FCE team actions that take place out of view of the detainee

(the disclosure of which thus would provide detainees information on tactics, techniques, and

19 The fact that Petitioner is the detainee in the FCE videos has already been disclosed on the public record.


29

procedures that they now have no access to whatsoever) would also have to be cut. Id. ¶ 12.

Further, the beginning of each video shows the FCE team members identifying themselves. Id.

¶ 37. This portion would have to be excised to prevent “compromis[ing] their safety by making

it possible for people or organizations sympathetic to the detainees to commit retaliatory acts to

harm them or their families” and exposing them to harassment. In re Guantanamo Bay Detainee

Litig. II, 787 F.Supp. 2d at 15-16.

After cutting out any portion that shows the Petitioner, the actual FCE, and the FCE team

introducing itself, the remaining portions of the video would still contain one or more of the

following items that must be protected from disclosure for the reasons discussed above:

(1) personally identifying information of the FCE team or other Guantanamo staff who appear in

frame, which is interspersed throughout the FCE recordings in every few seconds of video,

RDML Butler Decl. ¶ 38-41; (2) rosters, schedules, and contact information for JTF-GTMO

personnel that is posted or written on walls and bulletin boards, id. ¶ 45-46; (3) audio of

detainees who do not appear in frame, release of which could permit detainees to communicate

with the public in disruptive ways, id. ¶ 19; and (4) the layout of the camp, id. ¶ 15. Should there

be a scant few seconds of video that do not include any of the above—showing a blank wall, or

the floor or ceiling, perhaps—they would show nothing that would provide any meaningful

information about the subject of these proceedings.

C. Previous Disclosures of Related Information Neither Lessen the National Security Harms Caused by Disclosure nor Render Sealing of the Videos Ineffective

No part of these FCE videos, or any FCE video, has ever been disclosed to the public.

RDML Butler Decl. ¶ 48. The fact that the Government has released some standard operating

procedures or general descriptions related to the FCEs and enteral feeding, that some detainees

have published their own accounts of FCEs and enteral feedings, and that an entertainer has

made a video purporting to demonstrate the enteral-feeding procedures used at Guantanamo Bay,


30

Mot. to Unseal at 21-23, does not mean that the classified information contained in the videos

has been disclosed. This public information about—or allegedly about—FCEs and enteral

feedings does not contain the names and other personal identifying information of military

service members, images of a detainee being restrained, video demonstrations of law

enforcement and military techniques and procedures, visual layout information of military

infrastructure, audio that could be used by detainees to communicate outside the established

channels, or video footage that could be altered and manipulated to inflame anti-American

sentiment. See Int’l Counsel Bureau, 906 F. Supp. 2d at 7 (upholding SECRET classification of

FCE videos because they “differ[ ] from the written descriptions of those videos [and] other

disciplinary records” and rejecting argument that previous release of such information

undermined national security contentions where there was “no indication in the record that any

portion of the FCE videos . . . were ever publicly released”); see also Edmonds v. FBI, 272 F.

Supp. 2d 35, 49 (D.D.C. 2003) (upholding Government’s classification designation where “the

information that is being withheld is not identical to the information in the public domain”);

Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C.Cir.1990) (“[W]e have unequivocally recognized that

the fact that information resides in the public domain does not eliminate the possibility that

further disclosures can cause harm. . . .”).

The determination of the effect of existing public domain information on the possible

damage caused by disclosure of classified information is committed to the Executive Branch.

See Wash. Post v. U.S. Dep’t of Def., 766 F. Supp. 1, 9 (D.D.C. 1991) (The D.C. Circuit “has

treated agency justifications for withholding information already in the public domain with the

same deference it accords to all agency justifications under Exemption 1” of the FOIA).

“[I]nformation in the public domain may be withheld if the agency asserts in its declarations that

the information being withheld is not exactly the same . . . and that release of the more detailed

information in the document poses a threat to the national security.” Id. at 9-10 (citing Salisbury


31

v. United States, 690 F.2d 966, 971-72 (D.C. Cir. 1982); cf. RDML Butler Decl. ¶¶ 10-12 (listing

information available in FCE videos that is not available from standard operating procedures and

descriptions released to public or to detainees who have experienced FCEs themselves, and

explaining the harm that public release could cause).

In contrast to the detailed declaration provided by RDML Butler, Press Applicants have

provided nothing more than inaccurate speculation that written descriptions and celebrity

reenactments reveal the classified information in the videos. Such speculation does not suffice to

overcome the showing the Government has made that release of the videos poses a significant

threat of serious harm to national security, and that this Court’s continuation of its longstanding

policy of refusing to order the disclosure of classified information would serve to prevent that

harm.

CONCLUSION

For the foregoing reasons, the Court should deny the Press Applicants’ motion to unseal

videotape evidence.


32

July 18, 2014 Respectfully submitted,

STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Branch Director TERRY M. HENRY Assistant Branch Director /s/ Robert J. Prince ANDREW I. WARDEN (IN Bar 23840-49) TIMOTHY B. WALTHALL ROBERT J. PRINCE (D.C. Bar 975545) PATRICK D. DAVIS United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: 202.305.3654 E-mail: [email protected]

Counsel for Respondents


DECLARATION OF REAR ADMIRAL RICHARD W. BUTLER

I, Rear Admiral Richard W. Butler, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

1. I am a Rear Admiral in the United States Navy with 31 years of service. I

currently serve as the Commander of Joint Task Force-Guantanamo (JTF-GTMO), at Naval

Station, Guantanamo Bay, Cuba. I have held this position since July 9, 2013. As such, I am

responsible for the successful execution of the JTF-GTMO mission. My responsibilities include

the review of JTF-GTMO information for classification purposes pursuant to Executive Order

(EO) 13526 ("Classified National Security Information"). As the Commander, JTF-GTMO, I

have been designated by the Under Secretary of Defense for Intelligence as a SECRET Original

Classification Authority pursuant to EO 13526, Sections 1.3 and 3.1. Section l.3(b) of the EO

provides that original SECRET classification authority includes the authority to classify

information originally as SECRET or CONFIDENTIAL. I am authorized, therefore, to conduct

classification reviews and to make classification and declassification decisions regarding national

security information.

2. I make the following statements based upon my personal knowledge and

information made available to me in my official capacity.

3. I am familiar with videos that show forced cell extractions (FCEs) and enteral

feedings or portions of enteral feedings, which are considered classified and should not be

released to the public due to the potential damage to national security. Additionally, a member

of my legal staff, who reviewed the 28 videos that were filed in the case of United States v.

Dhiab, and I discussed the details of the videos to ensure the classification and basis for

classification set forth in this declaration applied to those videos.

Case 1:05-cv-01457-UNA Document 288-1 Filed 07/18/14 Page 1 of 26

4. The current basis for classification of national security information is found in EO

13526. Part I ofEO 13526, authorizes an Original Classification Authority (OCA) to classify

information owned, produced, or controlled by the United States government if it pertains to

military plans, weapons systems, or operations; pertains to an intelligence activity (including

covert action), intelligence sources or methods, or cryptology, or vulnerabilities or capabilities of

systems; or installations, infrastructures, projects, plans, or protection services relating to the

national security pursuant to Sections 1.4( a), (c), and (g) ofEO 13526.

5. Section 1.2 ofEO 13526 provides that information covered by one or more of the

classification categories may be classified at one of three classification levels

(CONFIDENTIAL, SECRET, or TOP SECRET) depending on the degree of harm that would

result from the unauthorized disclosure of such information. Information classified

CONFIDENTIAL could reasonably be expected to cause damage to national security if

disclosed. Information classified SECRET level could reasonably be expected to cause serious

damage to national security if disclosed. Information classified TOP SECRET could reasonably

be expected to cause exceptionally grave damage to national security if disclosed.

6. Section 6.1 of EO 13526 defines "national security" as "the national defense or

foreign relations of the United States;" and defines "information" as "any knowledge that can be

communicated or documentary material, regardless of its physical form or characteristics, that is

owned by, is produced by or for, or is under the control of the United States Government."

7. Based on my knowledge of the videos depicting forced cell extractions and some

or all portions of enteral feeding, my understanding of the applicable Security Classification

Guide, and my discussions with the reviewer of the videos at issue, the videos are properly

classified as SECRET under Sections 1.2 and 1.4 (a), (c), and (g) ofEO 13526.

2


EO 13526, Section l.4(a) and (g)

8. The forced cell extraction video recordings are classified pursuant to Section

l.4(a) and (g) ofEO 13526 because they contain information concerning military operations and

vulnerabilities or capabilities of installations, infrastructures, or protection services relating to the

national security.

9. FCEs, more fully described in a declaration from Colonel John Bogdan dated

April 17, 2014 (attached as Exhibit 1 ), are used, and FCE teams are assembled and called upon,

only as a last resort when their use is determined to be necessary to secure, using the minimum

necessary force, an uncooperative detainee who poses a threat to himself or others or refuses to

follow the guard staffs instructions to undertake or cease an act, such as an instruction to come

to the cell door to be shackled prior to a mandatory cell search, to drop a weapon, or to remove

items such as blankets or sheets covering the cell window. As such, FCEs are a military

operation and a detention-facility security capability used to maintain a safe and secure

environment in the detention camps.

I 0. While some of the standard operating procedures have been described or released

to the public, FCE videos provide demonstrative details about how FCE tactics, techniques, and

procedures are applied to different detainee threat scenarios, the manner in which they are

executed, details of camp infrastructure, numbers of personnel involved for particular response

scenarios, and other operational details.

11. In particular, the videos show the implementation of FCE procedures - methods

the FCE team use to: enter the cell; restrain the detainee; conduct a search; remove the detainee

from the cell; move the detainee from location to location; secure the detainee at a location;

return the detainee to the cell; and release the detainee.

3


12. The very actions an FCE team employs against a detainee who takes an

aggressive or noncompliant stance against the FCE team require security procedures and reactive

measures that cannot be disclosed. The same exact security procedures are in play both when

approaching a detainee and when interaction with the detainee is complete. Release of such

information poses a risk to military personnel as detainees and other enemies armed with such

information can develop countermeasures to FCE tactics, techniques, and procedures. This

would be true even with respect to detainees who experience FCEs, as the availability of

demonstrative videographic information, for example, could permit detainees to undertake a

more thorough assessment of FCE tactics, techniques, and procedures to develop

countermeasures, or permit them to obtain assistance from outside parties in assessing practices

and developing countermeasures. Furthermore, while FCE videos capture tactics, techniques,

and procedures associated with the actual cell extraction, many aspects of an FCE also captured

on video take place outside the detainee's presence.

13. The same circumstances are true when an enteral feeding is videotaped incident to

the FCE procedure. During the enteral feeding, there is a continued demonstration of security

techniques, tactics, and procedures used by DoD personnel at JTF-GTMO. On display are JTF

GTMO operations in which certain safety and security procedures are required for the process of

enteral feeding, the manner in which the detainee is secured and unsecured, the layout of the

enteral feeding space, location of equipment that could be used as a weapon, and the number of

personnel involved. The release of any footage of this type provides the enemy with the

opportunity to search for weaknesses and vulnerabilities, exposing FCE and medical personnel to

possible attack. This concern is not merely hypothetical. Prior to implementation of the restraint

chair system for enteral feeding, detainees resisted enteral feeding through violent behavior that

4


included assaults on medical and guard force staff. Public release of FCE videos could also

provide detainees with the ability to devise new ways to thwart the enteral feeding process, thus

placing the safety and security of military personnel and the detainees at risk.

14. The restraint system and internal procedures for returning a detainee to his cell

depicted in the videos are used at JTF-GTMO for a number of operational purposes. Divulging

videos of these processes could reasonably be expected to result in the development of counter

tactics, not only to disrupt the FCE or enteral feeding process, but for any situation in which a

detainee is similarly restrained, controlled, or escorted by JTF-GTMO guards, jeopardizing the

safety and welfare of DoD personnel and detainees.

15. Each video shows the location of the detainee at the time of the FCE and different

portions of the camp infrastructure. The compilation of this information from all of the videos

would allow adversaries to reconstruct considerable portions of the camp infrastructure, as well

as the location of the detainees within the camp, including the physical layout of the different

areas therein, thereby threatening the security of the camps, its guard force, and detainee

population. This information would also allow an adversary to discover how detainees are

housed in response to various acts of misconduct.

16. Once released to the public, this information could then be provided to detainees,

allowing them to manipulate the system, disrupt good order and discipline within the camps, and

enable them to test, undermine, and threaten physical and personnel security.

17. Multiple avenues of information can be used to reach the detainees should the

information become public, including communication from relatives or other persons who may

obtain the information and use various means of licit or illicit, direct or indirect communication

5


or delivery to provide this information to detainees, jeopardizing the safety and security of DoD

personnel and the detention facility.

18. Some detainees choose to be forcibly extracted from their cells or enterally fed

rather than comply with the instructions of the guard force. In some instances detainees resist as

a means of confirming their continued resistance to the United States in its ongoing overseas

contingency operations. If video recordings of forced cell extractions, or portions thereof, must

be released to the public, detainees would surely become aware of this, and some likely would

respond by refusing to comply with requests of the guard force in the hope that such resistance

would result in forced cell extractions that would be recorded by video and released to the

public, thus providing terrorist elements with propaganda to fuel their continued global hostilities

against the United States. This would likely result in more forced cell extractions.

Notwithstanding JTF-GTMO's extraordinary efforts to ensure that forced cell extractions do not

result in injuries to the detainees or guards, risk of such injury is present any time a forced cell

extraction is conducted. More forced cell extractions would result in an increased risk of injury

to both detainees and military personnel, both of which would cause significant harm to United

States national security.

19. Within each video, the detainee subject to the FCE and other detainees can be

heard talking. The public release of the videos would permit detainees to communicate with the

public in disruptive ways using channels other than those provided for them by JTF-GTMO and

the International Committee of the Red Cross ("ICRC"). If the videos are released to the public,

detainees would quickly learn that these videos are a useful means for communicating with

others, potentially including al-Qaeda and associated enemy forces not detained at Guantanamo.

Detainees have attempted to communicate with al-Qaeda affiliates in the past, including through

6


covert or surreptitious means. Permitting communications outside currently approved channels

would further endanger national security. Apart from communicating directly or via coded

message, videos of detainees waiting to be forcibly removed from a cell or being enterally fed

would effectively communicate to the outside world that the detainee is resisting the rules of the

detention facility, thus providing another useful propaganda tool for al-Qaeda and its affiliates.

20. Release of videos or portions of videos, of detainees subject to forced cell

extraction or enteral feeding would raise serious questions by United States allies and partners

and others in the international community as to whether the United States is acting in accordance

with its longstanding policy to protect detainees from public curiosity, consistent with the

Geneva Conventions. That risk is much greater with respect to video-recordings of forced cell

extractions or enteral feeding than with photographs. In the FCE context, the detainee is being

shown in a non-compliant status, and consequently in a potentially unfavorable light. The

Department of Defense (DoD) has incorporated the United States Government's commitment to

a firm policy of protecting detainees from public curiosity, consistent with international law, as

part of its policy on humane treatment standards in DoD Directive 2310.01 E, the Department of

Defense Detainee Program. Release of these videos would damage national security by leading

some to call into question the United States commitment to upholding the principles of the

Geneva Conventions and thus undermine our diplomatic and military relationships with allies

and partners abroad. Moreover, a release of the videos in this case could lead other members of

the international community to believe that the United States regards the release of such imagery

as appropriate. This could affect the practice of other states in this regard, which could in turn

dilute protections afforded U.S. service personnel in ongoing overseas contingency operations

and future conflicts. Dilution of these protections could significantly damage national security.

7


21. The subject of U.S. detainee operations is extremely sensitive with the host

nations and governments whose nationals we detain. Enemy forces and extremist groups use

comprehensive information operations to effectively exploit this sensitive subject. Any release

of videos would facilitate the enemy's ability to conduct information operations and could be

used to increase anti-American sentiment, thereby placing the lives of U.S. service members at

risk.

22. The forced-cell extraction videos are particularly susceptible to use as propaganda

and to incite a public reaction because of their depiction of forcible, even though lawful, humane

and appropriate, guard interaction with detainees. The FCE videos that contain footage of

enteral feeding could also be used to foment anti-American sentiment and inflame Muslim

sensitivities as it depicts JTF-GTMO personnel providing medical care to a detainee while he is

restrained. Releasing a video showing a detainee receiving medical care while restrained would

exacerbate the world's perception of detainees in U.S. custody.

23. The videos could also be easily manipulated so to be used as recruiting material to

attract new members to join enemy forces. For example,

a. Extremist groups could splice released footage to change the chronology

or combination of events, splicing these videos or segments of them, with different

footage, apply soundtracks, morph videos, and falsify the released videos by other means

to develop completely new videos;

b. Extremist groups could use released portions of the video-recordings and

overlay staged audio that falsely indicates the mistreatment of the detainees when none

has occurred;

8


c. The released video-recordings could be pix elated to alter the images of the

detainees face or person to falsely show physical signs of mistreatment, such as bruising

or bleeding;

d. The released video recordings could be spliced with non-released footage,

such as anti-U.S. rallies or inflammatory speeches; and

e. Even short segments of released footage or still images created from them

would be subject to manipulation. In addition, knowing the still photograph was obtained

from the released video recordings in and of itself would be inflammatory given the

sensitivities surrounding the U.S. detention of foreign nationals.

24. Manipulation of visual imagery has already been used to increase recruitment, as

a fund-raising tool, and to encourage solidarity among extremist groups, as well as to encourage

Western converts into action in an attempt to show solidarity with extremists groups.

EO 13526, Section l.4(c)

25. Throughout each video, images of the detainee can be seen. Every detainee is a

potential intelligence source. Imagery of detained enemy combatants, to include video, is

properly classified SECRET in accordance with Section l.4(c) of the Executive Order. In some

circumstances, I do review and declassify certain detainee photographs taken for International

Committee of the Red Cross (ICRC) use, as discussed below. Nonetheless, the detainee images

in the forced cell extraction and enteral feeding videos were not obtained for the ICRC and

remain properly classified.

Other Damage to National Security

26. In addition to the potential adverse foreign policy consequences, there are other

significant policy interests implicated by the release of videos, or portions of videos, showing

9


detainees subject to forced cell extraction or similar procedures. DoD's longstanding policy is to

prohibit the photographing or filming of detainees in DoD custody unless specifically authorized

for legitimate purposes. This general prohibition is intended to reduce the risk that detainees in

DoD custody would, through the inappropriate release of detainee images, be subjected to public

insult, curiosity, embarrassment, unwanted exposure, harassment, or exploitation.

27. Release of portions of the forced cell extraction and enteral feeding videos to

members of the public would be an unwarranted invasion of the personal privacy of the detainee

who is subject to the forced cell extraction or enteral feeding and to the broader detainee

population generally. Release of these videos, or portions thereof, would invade the detainees'

privacy because release of such imagery would: (a) circumvent JTF-GTMO's processes for

release of detainee imagery, which are designed to protect detainee privacy and to mitigate

security concerns; (b) single out detainees who have violated camp rules as being recalcitrant or,

conversely, subject detainees who have not violated camp rules to accusations of cooperating

with the enemy; and ( c) risk subjecting detainees to public curiosity and humiliation.

28. As part of its effort to ensure humane treatment of detainees, DoD has

established, in conjunction with the ICRC, a process for releasing images consistent with

detainee privacy and the principles of the Geneva Conventions to protect detainees against public

curiosity. On a periodic basis, detainees may elect to allow the ICRC to take photographs and

provide them to appropriate family members of the detainee's choosing. Public release of these

videos would violate the detainees' privacy and personal autonomy and undermine the purpose of

the process, which permits detainees to exercise significant control over appropriate release and

distribution of their images.

10


29. Detainees are only subject to forced cell extraction as a last resort when failure to

follow the instructions of the guard force becomes a threat to security and the good order and

discipline of camp operations. Release of images of detainees in connection with forced cell

extraction would thus provide vivid imagery of detainees subject to procedures to restore good

order and discipline or vivid imagery of the procedures themselves. At least in some quarters,

this would result in condemnation of the detainee for obstreperous behavior. In others, it could

result in condemnation of other detainees for failure to engage in such behavior if it is seen as

appropriate resistance to the United States in this ongoing armed conflict. In either case, the

release could subject the U.S. Government to criticism that it is inappropriately focusing public

attention on one or more detainees.

30. Videos of forced cell extraction or a detainee being enterally fed are matters more

likely to incite public curiosity than portrait-type photographs of detainees taken by the ICRC for

delivery to family members, or images that do not reveal the identity of the individual detainee

released through official channels. But even these relatively benign types of images are deemed

by many to incite public curiosity.

31. Indeed, counsel for a detainee criticized "B-roll" videos released by DoD in which

they claimed that a certain Kuwaiti detainee could be identified, notwithstanding JTF-GTMO's

efforts not to show the face of the detainee in question. Counsel considered release of the video

- in which the detainee's face is not even visible - to be a serious breach of the detainee's privacy

and part of a supposed government attempt to sabotage the lawyer's work. See Jason Leopold,

"Outrage Over Pentagon's Guantanamo 'Propaganda' Video," attached as Attachment 2. That

detainee's military commission defense counsel reportedly told the press, "My first thought was

that there is no way the United States government sank so low as to show my client to the world,

11


caged like a circus animal." Another Kuwaiti lawyer purporting to represent that detainee

reportedly stated that the video "has angered every single person I've spoken with."

32. Public release of imagery from the forced cell extraction and enteral feeding

videos raises these concerns to a much greater degree than the "B-roll" videos that provoked the

ire of a detainee' s counsel. First, when the FCE videos were recorded, no measures were taken

to ensure that the detainee is not identifiable, unlike the safeguards taken with the filming/release

of "B-roll" videos and media videos. Second, for the reasons cited above, the FCE videos,

including those containing footage of enteral feeding, or portions thereof, implicate much greater

privacy concerns than footage of unidentifiable detainees walking on the grounds of the

detention facility. Even ifthe detainee who is depicted in the videos at issue wants the videos

distributed publicly, many of the just discussed privacy-related concerns would still apply,

including undermining DoD processes, subjecting detainees not depicted in FCE videos to

approbation, and setting precedent for public disclosure of videos that could undermine

objections of detainees who do not consent to public disclosure.

33. In light of my knowledge and experience, the additional information described

herein, the forced cell extraction and enteral feeding videos are appropriately classified as

SECRET to prevent serious damage to national security that would likely result from their

release.

34. I have determined that the information contained in the videos remains properly

classified under EO 13526, Section l .4(a), (c), and (g), because release of this information would

threaten detention operations, including the secure and orderly operation of the camps and

improperly reveal the identities of intelligence sources.

Information Deemed Protected or Exempt From Release Per the Protective Order or the Freedom of Information Act

12


35. I am also responsible for ensuring that information is properly handled pursuant to

DoD Directives and regulations and pertinent court orders, including the Protective Order

governing Habeas cases, concerning the classification and public release of information.

36. Section E of The "Protective Order and Procedures for Counsel Access to

Detainees at the United States Naval Base in Guantanamo Bay, Cuba" provides "Designation

Procedures for and Access to Protected Information and Documents". These procedures provide

that the government can designate sensitive but unclassified information for protection from

public release subject to the court's review and determination of the justification for the

protections sought.

3 7. All of the recordings begin with the FCE team lining up in front of the camera

operator and stating their names (actual or pseudonym) or guard force number, rank, position,

and responsibilities within the team.

38. The videos contain personally identifiable information (e.g. image, name, voice)

ofFCE team members not only when they identify themselves at the beginning ofthe video, but

also by stating their function and guard force number. This identifiable information remains

continuously visible throughout the intervention based on the positions they have explained in

the video introduction, which further emphasizes their identity since they each perform a

particular and identifiable task.

39. The videos also capture the faces and other identifiable images of other personnel

in the facility who are not participating in the FCE and enteral feeding.

13


40. All of the non-detainee individuals who are depicted in the videos are personnel

below the level of General Officer or Senior Executive Service assigned to JTF-GTMO at Naval

Station, Guantanamo Bay, Cuba.

41. Personally identifiable information is interspersed throughout the FCE recordings

as stated above, which provides multiple opportunities (every few seconds of video) for

identifying different members of the FCE team and/or other JTF-GTMO personnel and places

these service members and their family members at considerable risk due to their associations

with the JTF-GTMO detention operations. If the identities of such personnel involved in the

detention and/or interrogation of Guantanamo detainees became publicly known, terrorist groups

or their sympathizers, former detainees, or members of detainees' families, could seek to retaliate

against these individuals by doing harm to them or their families.

42. The government designated the names, images, and any other identifying

information related to these personnel as protected from release to the public under the Protective

Order.

43. Congress recognized the importance of protecting such information from

disclosure when it enacted the Freedom of Information Act ("FOIA"). FOIA Exemption 3 (5

U.S.C. § 552(b)(3)) exempts from release information specifically exempted from disclosure by

another federal statute. In this case, the controlling federal statute that requires information to be

withheld from these records is 10 U.S.C. § 130b. 10 U.S.C. § 130b authorizes "[withholding]

from disclosure to the public personally identifying information regarding ... any member of the

armed forces assigned to an overseas unit [or] a sensitive unit." Naval Station Guantanamo Bay,

Cuba, is an overseas station and JTF-GTMO is a sensitive unit within the meaning of this statute.

14


44. Thus, the personally identifiable information on these videos would be exempt

from release under FOIA Exemption 3 (5 U.S.C. § 552(b)(3)).

Other Information Revealed in Videos

45. In some of the videos information can be seen posted or written on walls and

bulletin boards. This information can be read to varying degrees and likely contains force

protection information such as rosters, schedules, and contact information for JTF-GTMO

personnel. It might be possible for a member of the public to enhance these images to reveal

what is posted. Rosters, schedules and contact information for JTF-GTMO personnel are also

exempt from release under and FOIA Exemption 7(C) (5 U.S.C. § 552(b)(7)(C)).

46. The rosters, schedules, and contact information contain personally identifiable

information as well as internal work contact information for personnel assigned to the Joint

Detention Group (JDG), JTF-GTMO. The JDG enforces the disciplinary policies and rules

governing the detention of the enemy combatants. The disciplinary procedures are the law

enforcement mechanism used for governing behavior of the detainees. Maintaining good order

and discipline across the detainee population is a critical law enforcement function of the JDG

personnel at Guantanamo.

4 7. The release of the personal information as well as the contact information for the

JDG personnel could reasonably expect to constitute an unwarranted invasion of their personal

privacy. The risk of harassment and retaliation as noted in paragraph 41 constitutes a legitimate

privacy interest.

Conclusion

48. The forced cell extraction videos are properly classified in their entirety for the

reasons stated above. No portion of these videos has ever been publicly released. There are no

15


meaningful portions of the videos that can be segregated from the classified information

contained therein. Finally, there is a significant risk that public release, in whole or in part, of

videos showing forced cell extractions and/or enteral feedings would cause serious damage to

national security.

16

R. W.BUTLER Rear Admiral, U.S. Navy Commander


Exhibit 1 to the Declaration of Rear Admiral Richard W. Butler


UNCLASSIFIED//FOR PUBLIC RELEASE

DECLARATION OF COLONEL JOHN V. BOGDAN

-fblt-1, Colonel John V. Bogdan, pursuant lo 28 U.S.C. § 1746, hereby declare as follows:

1. "tttt l am a Colonel in the United States Anny, with JO years of service. I currenlly serve as

the Joint Detention Group (JOG) Commander of Joint Task Force-Guantanamo (JTF-GTMO), nl

the Naval Station, Guantanamo Bay, Cuba. As such, I am responsible for all aspects of detention

operations at JTF-GTMO and am familiar with all areas of de1ention within JTF-GTM.O,

including the conditions and operational policies and procedures of the various detention areas.

have held this position since June 7, 2012.

2. ~This declaration is based on my own personal knowledge and information made available

to me in the course of my official duties.

Forced Cell Extraction Procedures

3. -tH?-When necessary, JTF-GTMO employs Forced Cell Extraction (FCE) procedures to bring

detainees to their enlera! feeding appointments. As !he JOG Commander, lam responsible for

these procedures.

4. ~The physical sccuri Ly of JTF-GTM 0 personnel and detainees is of paramount importance

to our operations. Use of the minimum force necessary for mission accomplishment and force

protection is required at all times. The FCE practices used at JTF-GTMO are modeled on the

rules of force in military con-ections facilities and the l'"ederal Oureau of Prisons (see federal

Bureau of Prisons Program Statement P5566.06, Subject: Use of Force and Application of

Restraints).

5. (UNFOUO) The FCE team is a small group of military members specializing in the extraction

of a detainee who is combative, resistive, or possibly possesses a weapon at the lime of

extraction. Guards are trained to use. the minimal force necessary for mission accomplishment

and force protection. The amount or f'orce nccc~sary depends on the allendanl circumstances.

1




including lhe amount of resistance by a detainee as well as his physical ability to resist. FCE

teams are briefed on the physical and medical condition of each detainee and would be aware

prior to an FCE i r a detainee has nn exceptionally low body weight or a medical condition that

might make him more prone to injury. With lh<1t information, the FCE team will use the minimal

force needed to ht::lp prevent any injury to the detainee during the FCE process.

6. (l.i/:'fOUO) In addition to the extensive training they receive in advance of being assigned to

an FCE team, the ream members receive regular training on the proper procedures to conduct

FCEs and how to handle aggressive or non-compliant detainees. This includes trnining during

each shift and often involves practice drills. There are specific procedures that must be followed

for each FCE. including warnings and instructions that must be issued to the detainee and

speci tic sleps that arc taken al each stage of the fCE. f ndividutlls assigned Lo an FCE ream train

on and rehearse these procedures extensively.

7. (U//FOUO) :Yhe FCE team is not used as punishment or intended tO be use<l on every detainee

who is Lo be moved, but only on those who indicate or demonstrate the intent to resist. refuse to

follo1..v guard st a.ff i nsi-ruct ions, cause a disturbance:. or endanger the lives oft hcmsel ves, other

detainees, or any JTf-GTMO member. For instance, a detainee who agrees to voluntarily

accompany guard staff Lo his entcral feeding appointment will not be forcibly extracted from his

cell. The FCE team is used only as a last resort after unsuccessful a1tcmpts have been made lo

obtuin a detainee 's compliance through verbal persuasion and without the u~e of phy~icril force.

This includes advising the detriinee of the ramilications or his continued refusal lo comply and

asking him jf he will comply withoul resistance. FCEs may also be used in the event of an

emergency, when time does not pem1iL efforts to verbally persuade the detainee to coopcrace and

follow orders. The use or the FCE ceam. when appropriate, is lhe necessary level of force to

respond to the level or rcsiscancc by a detainee or Lo respond to an emergency situation.

8. (U,~'rOUO) The use of an f.CE team to respond to a detainee's rcrusal to follow guard

instructions or in response ro a disorder or disturbance must be requested

-2




9. ft17-lmmedialely following an FCE_, the detainee will be evaluated by medic~I perso·nnel and

checked for injury. Detainees seldom susfain injuries that require medical treatment.

I 0. ~In lhe case of a delainee approved for enteral feeding, a guard wi IJ verify th al a detainee

is scheduled for an enTLTJl feeding thal is deemed medically necessary by JMG staff. The guard

will inform the detainee thal ii is time for his enteral feeding and will ask rhe detainee if he will

come out of his cell voluntarily. ff the detainee complies, he will walk with the guard to the

enteral feeding loca1iou in lhe resident camp. If he refuses lo exit his cell, an FCE team will be

requested. Once requested and assembled, the fCE team will enter the cell.

The FCE team then secures the

detainee and moves him directly lo I.be emernl feeding restraint chair in

!he resident camp. A bRckboard is almos1 never used for FCEs related to cnlcra\ teeding because

it is not needed lo fransµort the detainee

811ckhoards may be used in 01her situations. such as if a

delainee refuses 10 leave 1he recreation area or in order 10 be weighed.

I I . (UNfOl'O) forced cell exlractions are also sometimes necessary in order to obtain a

de1ainee's weight. When medical staff has r1.:qucsll.:J to obtain the weight of a dewinee who is

approved for el)lcral feeding, a guard will inform the detainee that he has to be weighed and ask

the detainee i(he will come out of his cell voluntarily. If the dcl~inec agrees, he is weighed, un<l

his weight is recorded. If he is combative or refuses to leave his cell voluntarily to be weighed.

lhe guard staff will conlact medical staff to dclennine if obtaining the dctninet!'s weight is

considered to be a medical necessity, If it if-, then the guard will request an fCE team who will

enter the detainee's cell, secure him to a backboard and move him to the designated location to

be weighed on an induslrial weight scale. The backboard ensures the detainee l'emains stationary

during the weighing process, providing an accurate reading of his weight. A fl.er his weight is

obhiined, he is reLumed to hi~ cell. A medical corpsman is present and observes the entire

process.

3




Rcstraiat Chairs

12. "fl:'tRestraint chairs are used to provide a sale and secure environment for medical personnel

to care for det.ainees . They can be used to control the movemen! of a d~tainee ancl to facil ita!e

his medical care during enleral feeding or for another purpose. The decision to use a restraint

chair for enteral feeding was made before I arrived at Guantanamo Bay. I unders1..and that this

subject has been raised in past litigation and is discussed in dcclara1ions hy former JTF-GTMO

Commander, Brigadier General Hood, and Dr. Scephen I looker thac were filed in March. 2006.

in Mohammed /\l-Adahi cl al v. George W. Bush (Civ. No . 05-280) and atLached here . The

rest.mint chair is still used today and continues to mitigate the potential security threat Lo JTF

GTMO personnel as well as ensure that the right amount of nutrition is received and retained by

the detainees.

13. ttf'tThe restraint chair used for enteral reeding

Guard staff secure i;tl I restraints and exercise care to ensure thnl a

detainee is not injured in 1he process. Guard sraff keep the detainee's head $tabilized throughout

the movement into the chair. Once the detainee is seated in the chair, a spit shield may be placed

on him if he begins spilling or indicates he will do so to keep hLm from spitting on the guards and

nurse during insertion and placement of the enleral feeding tube. Most often, there is no need for

rhe spir guard . /n addicion,~uard stands behind the decainec and will hold the derainec's head

with hjs hands irmedical staff need assislance to secure the derainee's head during placement of

!he cntcrnl leeding tube. No headgear is placed on a detuincc while he is s~uted in the restn1i111

chair. . Restraints arc applied for lhc minimwn possible time period and are used so that

medical staff cru1 provide acute medical c~re or lo protect a detainee from innic1ing Injury to

himself or others. Medical personnel do not participate in applying 1he custodial restraint

device::; at any time or for any reason. Rather, this is done only by the JOG guard staff

14 .~ There is a small group of detainees "vho have been enterally fed for a significant period

of time and who are ro111tuncly compliant with entcral feedrn.g. The Se.ni:orr Medical Officer and I

conferred and agreed that for those detainees, we would allow the use or a son chair

The chair reclines. and the detainees may watch television or play

video games while being enterally led. This chair is used as part of an




effort to help detainees improve lheir ea1ing habits and thus their overall health. We began

allowing tile use of the soft chair for this small group of long-tenn enteral feeders in October,

2013. All other derainecs are enleral!y fed !n thc-restrnint chair described above. The

res!rnint chair helps to control movement during entercil feeding to ensure ii is safely completed.

15. ffl Deiainees have regular access lo toilet focili1ies in their cells. They are always pennilled

to use the faci Ii ties prior to enteral feeding. Guard staff \Ni 11 honor a detainee' s request to use the

restroom prior to a feeding. I have not heard or detainees having bowel movements or urinating

during enteral feedings. If this happened, JTF~GTMO personnel would take immediate action to

assist the detainee, gel him fresh clothing, and sanitize the area. JTF-GTMO would not allow a

detainee ro remain in clothing soiled by feces or vomit. In nddition, i r a detainee vomited during

enLeral feeding, thar would be imrnediately addressed due to concerns about aspiration.

Detainees are aware of the risk that they could aspirate if they vomit during the feeding, and I am

unziware of any detainee vomiting du1ing enteral feeding. A quick response to address bowel

movemenrs or vomiting during enteral feeding in the event that they occurred is consistenl with

JTl--GTMO's requirement and commitment to provide humane treatment to the detainees.

I declare under penalty of perjury that the forgoing is trne and correct.

Executed on

JOH~ V BOGDAN COL. MP Commanding

5



Attachment 2 to the Declaration of Rear Admiral Richard W. Butler


Outrage Over Pentagon's Guantanamo "Propaganda" Video Saturday, 19 November 2011 03:41 By Jason Leopold, Truthout | Report

A video released by the Pentagon showing several Guantanamo detainees praying, exercising and playing soccer has angered Kuwaitis, who believe one of the prisoners is a citizen of the country and is being used by the US government as a "propaganda" tool in an attempt to demonstrate the humane conditions of nearly a decade of indefinite detention, according to attorneys representing the man.

The one-minute-and-19-second video, according to a Defense Department spokesman, is "B-roll footage" that was shot on November 4 by Joint Task Force-Guantanamo personnel and provided to the media covering the arraignment at the prison of high-value detainee Abd Al-Rahim Al-Nashiri, the alleged mastermind of the October 2000 bombing of the USS Cole.

The video, which does not show the detainees' faces, was shot in Camp 6, which houses "cooperative" detainees. The detainees, some of whom are wearing sneakers, shorts and beige and white prison garb, are also seen taking what appears to be a leisurly stroll on the prison grounds.

Air Force Lt. Col. Barry Wingard, a military lawyer who is defending Kuwaiti Fayiz al-Kandari against war crimes charges before the military commission at Guantanamo, told Truthout that it took "all but a couple of seconds to identify my client in the video" through other identifying features that the Pentagon did not obscure. Wingard said al-Kandari is the detainee kicking a soccer ball.

Wingard suggested the Pentagon released the video in an attempt to sabotage his work on al-Kandari's case. He said the video was posted on the Internet a few days before he arrived in Kuwait to meet with government officials to discuss ways to "facilitate [al-Kandari's] release back to Kuwait's state of the art rehabilitation center built at the request of the Bush administration, which is currently vacant." [A previously classified State Department cable, released in September by WikiLeaks, says planning for the rehabilitation center began in September 2008, following a discussion between Prime Minister Nasser Al-Sabah and former Secretary of State Condoleezza Rice in Washington "on the possible role of such a center with respect to Kuwait's four [at the time] remaining Guantanamo detainees."]

"I first saw the video of my client, Fayiz al-Kandari, when I touched down in Kuwait for a scheduled visit," Wingard said. "My first thought was that there is no way the United States government sank so low as to show my client to the world, caged like a circus animal. Still, there he was, standing in a chain link, kennel-like enclosure, where he has essentially spent the last ten years without every having been charged with a crime."

Wingard said word quickly spread in Kuwait that one of the detainees in the video was al-Kandari. He said the message that the US government was trying to disseminate - that al-Kandari and the other detainees featured in the video were in "good health" - has backfired.

"As I traveled around Kuwait, I discovered that people were not seeing the positive image the spin doctors had engineered," Wingard said. "Instead, they saw a man in a dog cage, cut off from his country, and subjected to injustice for a decade without trial. Thus truth has shone through - and it has had an amazing impact on the steadily declining support the United States had taken for granted here in Kuwait. I can tell you without a doubt, this video puts the inhumanity of Guantanamo into motion unlike any still picture I could have shown."

A State Department spokesperson did not return calls for comment.

The issue of al-Kandari's indefinite detention and the other Kuwaiti detainee imprisoned at Guantanamo, Fawzi Al-Ouda, was reportedly one of the talking points during a meeting that took place at the White House in September between Vice President Joe Biden and Prime Minister of Kuwait Sheikh Nasser Mohammad Al-Ahmad Al-Sabah.

Attorneys for Guantanamo detainee Fayiz al-Kandari say he is one of the detainees who appeared in 'B-roll' footage the Pentagon released to the media two weeks ago about conditions at the prison facility.

Page 1 of 7Outrage Over Pentagon's Guantanamo "Propaganda" Video

7/9/2012http://truth-out.org/news/item/5010-outrage-over-pentagons-guantanamo-propaganda-video...

Case 1:08-cv-01063-JDB Document 72-3 Filed 07/10/12 Page 1 of 3

Att.D to Lietzau Decl. Sep. 12, 2012

Case 1:08-cv-01063-JDB Document 77-1 Filed 09/12/12 Page 28 of 30Case 1:05-cv-01457-UNA Document 288-1 Filed 07/18/14 Page 24 of 26

A statement released to the media in September by Kuwaiti Ambassador to Washington Sheikh Salem Abdullah Al-Jaber said the prime minister called on Biden to take immediate steps to secure al-Kandari and Al-Ouda's release. The prime minister also discussed the case with Secretary of State Hillary Clinton and told her it is a priority issue for the Kuwaiti government, according to the ambassador's statement.

Adel Abdulhadi, al-Kandari's Kuwaiti-based attorney, told Truthout that the video "has angered every single person I've spoken with."

"Whoever thought it might be a good idea to show our son in a dog kennel should be fired," he said. "When I saw the video I thought, we must do something after ten years without a trial. As a result I'm organizing a protest outside the US Embassy" on Sunday.

Lt. Col. Todd Breasseale told Truthout the government's only agenda in releasing the video is to show the world that "Defense Department personnel working in detention facilities operate under a high level of scrutiny and consistently provide the most humane and safe care and custody of individuals under their control.

"It's important to us and to the global community that we continue to be as transparent as possible in all that we do - while still maintaining very necessary operational security - to show current conditions" at Guantanamo, Breasseale said.

But Daphne Eviatar, a senior associate at Human Rights First's Law and Security Program, also likened the video released by the Pentagon to propaganda and said it is not a realistic portrayal of the detainees' lives.

"For years, Human Rights First and other human rights observers have refused to take the [Department of Defense] prison press tours for exactly this reason - because it allows the US government to portray the prison as a great place to live where detainees get lots of exercise, take art classes and work on their resumes," Eviatar said. "Such tours, and the B-roll video, are designed to distract observers from the fact that these men are being imprisoned indefinitely, most without charge or trial, in a faraway prison where they're completely cut off from their homes, families and communities. Neither the video nor the prison tours reveal the suffering that they or their families endure."

Eviatar added that the Defense Department has refused to allow human rights observers and journalists to speak to detainees imprisoned at Guantanamo, many of whom have already been cleared for release or transfer, or Bagram, "the other official and much larger detention center" in Afghanistan and "ask them what their lives are really like there."

"That in itself negates the positive spin they're trying to put on an inherently deplorable situation," she added. "The military shouldn't be surprised to hear that its video is outraging people in other countries who have lost family, friends and community members due to the US indefinite detention scheme."

Breasseale said the last time B-roll footage was "updated" was more than one year ago, and he noted the Defense Department works closely with the International Committee of the Red Cross, "which has access to all detainees interned by the Department of Defense."

Wingard, however, does not believe al-Kandari's presence in the video is coincidental. He said al-Kandari was transferred to Camp 6 a week or so before the Pentagon said the video was shot. Al-Kandari had spent the past five months in solitary confinement for taking part in a hunger strike to protest the seizure of his "personal belongings," which included" his "attorney/client information folders," Wingard said.

"I believe he ended up in the video so the US government could show the Kuwaitis that he was in good health after spending months in isolation," Wingard said.

Al-Kandari, who speaks English, was previously housed in Camp 1 along with ten other detainees who speak English, are well-educated and whom the DoD had segregated because the agency believed they were "troublemakers" and an "influence" on other Guantanamo prisoners, according to several Guantanamo guards.

Guantanamo officials began the process of permanently shuttering camps 4 and 1 in January and moved all of the detainees interned there to camps 5 and 6 in preparation for an executive order signed by President Obama in March establishing a policy of indefinite detention for dozens of Guantanamo detainees.

Wingard, who holds a top-secret security clearance, said since al-Kandari was moved to Camp 6 he was told by Guantanamo officials that prison personnel "will now be doing a 'cursory' review of all written correspondence between [al-Kandari] and me, which even under the Bush administration was treated as off limits."

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who "printed it off and put it in sealed envelope which was then given to the government."

"The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,"






Wingard said. "Now, instead of opening the mail in front of him, they do a 'cursory' review before delivering the mail to him and decide what he should and shouldn't get. Additionally, they have taken all all our past correspondence to conduct a 'review' of each item. I have instructed Fayiz, and my other client, [Afghan] Abdul Ghani, to destroy all our legal correspondence going forward to prevent the government from taking it in the future."

Breasseale was unavailable to respond to follow-up questions about Wingard's claims.

In the lead up to al-Nashiri's military commission trial, the new commander of the Guantanamo, Navy Rear Adm. David B. Woods, authorized the seizure and review of high-value detainees' legal mail and other materials from the top-secret camp where they reside. The military judge presiding over Nashiri's tribunal has since ordered an end to the practice.

Al-Kandari, a humanitarian aid worker, who said he was in Afghanistan in 2001 to help repair a mosque and build two wells, was captured by the Northern Alliance in December 2001 and sold to US forces for a bounty. US government officials claimed in a November 2008 military commission charge sheet that al-Kandari was an adviser to Osama bin Laden, training al-Qaeda recruits and "produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad."

US District Court Judge Colleen Kollar-Kotelly denied al-Kandari's petition for habeas corpus last year, citing inconsistencies in his statements about his reasons for being in Afghainstan even though she said the reliability of the government's evidence against him was questionable.

The government's entire case against al-Kandari, who Wingard said was subjected to "hundreds of 'enhanced interrogation' sessions, which included "physical assaults," sleep deprivation, stress positions, loud music and temperature extremes, is based almost entirely on hearsay evidence obtained from other detainees.

Al-Kandari appealed Kollar-Kotelly's decision. Oral arguments in the case was scheduled to be heard Friday in the Court of Appeals for the District of Columbia Circuit, but was canceled by the court.

UPDATE: Wingard claims this is another video clip of al-Kandari, seen standing in a cage hanging laundry, that the Pentagon released within the past two weeks. The one-minute, thirty-one second video was posted on YouTube November 7, and has has been viewed more than 18,000 times. According to Wingard, this video has also caused an uproar among Kuwaitis who believe the detainee is al-Kandari. Neither Breasseale nor another Defense Department spokesperson was available Saturday to confirm whether the clip was produced by Joint Task Force-Guantanamo and if it was part of the same B-roll footage provided to the media during Nashiri's arraignment.

JASON LEOPOLD

Jason Leopold is lead investigative reporter of Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit jasonleopold.com for a preview. His most recent investigative report, "From Hopeful Immigrant to FBI Informant: The Inside Story of the Other Abu Zubaidah," is now available as an ebook. Follow Jason on Twitter: @JasonLeopold.

Related Stories

Guantanamo Detainees Stage Hunger Strike to Protest Confinement ConditionsBy Jason Leopold, Truthout | Investigative Report

Department of Justice Balks at Turning Over Guantanamo Detainee's "Power-of-Attorney" Document to His LawyersBy Jason Leopold, Truthout | Report






1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ABU WA’EL (JIHAD) DHIAB (ISN 722), Petitioner,

v.

BARACK H. OBAMA, et al., Respondents.

Civil Action No. 05-CV-1457 (GK)

[PROPOSED ORDER]

Upon consideration of Press Applicants’ Motion to Unseal (ECF No. 263), filed on June

20, 2014, it is hereby

ORDERED, that Press Applicant’s Motion to Unseal is DENIED.

SIGNED this _____ day of ________________, 2014.

GLADYS KESSLER United States District Judge


FOR THE DISTRICT OF COLUMBIA ABU WA’EL (JIHAD) DHIAB...

Documents

Transcript of FOR THE DISTRICT OF COLUMBIA ABU WA’EL (JIHAD) DHIAB...