Judge rejects White House plea to keep Guantánamo force-feeding hearings secret
Judge Gladys Kessler dismissed the government’s argument that an open hearing would jeopardize national security
Author: Spencer Ackerman.
A federal judge has rejected the US government’s plea to prevent the public from attending the first legal challenge to its practice of forcibly feeding detainees on hunger strike at Guantánamo Bay, describing it as “extraordinary” and “deeply troubling”.
Judge Gladys Kessler, of the Washington DC district court, noted that the Justice Department’s request came late – just days before opening statements are to be delivered in the case of Abu Wa’el Dhiab.
“With such a long-standing and ongoing public interest at stake, it would be particularly egregious to bar the public from observing the credibility of live witnesses, the substance of their testimony, whether proper procedures are being followed, and whether the Court is treating all participants fairly,” Kessler wrote in a Thursday ruling.
In an occasionally mocking tone, Kessler dismissed the government’s argument that an open hearing would jeopardize national security by risking the disclosure of classified information. Any witnesses or written testimony could be crafted to reserve any such discussion for a closed session, she found, and much of the evidence to be submitted is already public.
Dhiab, a Syrian who has been cleared for release from Guantánamo since 2009, is challenging the US military’s practice of feeding detainees on hunger strike through tubes inserted into the stomach through the nose. He and other detainees consider the feeding to be torture, and request an end both to it and to Guantánamo guards forcibly removing them from their cells for the treatment. Dhiab and an undisclosed cohort of detainees are on hunger strike to protest their incarceration without charge.
When the government requested last week that the public be shut out of the trial beyond the opening statements scheduled for Monday, lawyers for Dhiab warned of a coverup. The public has had minimal independently confirmed glimpses inside a force-feeding practice that Kessler, last year, called “painful, humiliating and degrading.”
Among the key pieces of evidence in the trial are videotapes of the feedings and the extractions that Kessler has ordered the government to produce. But those videotapes, Kessler has agreed, are not to be shown to the public – meaning that the most graphic depictions of the force-feedings will remain hidden from view.
The Guardian is among several media organizations that filed suit for the disclosure of the videotapes and that also submitted a brief to Kessler arguing for an open hearing. Kessler referred to the “good deal of publicity in the press” that Dhiab’s challenge has garnered.
With the international controversy generated by the force-feeding ever-present in Dhiab’s case – joined by broader critiques of justice at Guantánamo Bay after 12 years – Kessler quoted a supreme court ruling archly noting that trials were contests of credibility.
“The value of openness lies in the fact that people not actually attending trials [and other proceedings] can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the … trial and the appearance of fairness so essential to public confidence in the system,” the supreme court found in 1984.
Kessler said she found the court’s words enduringly “wise and relevant.” The government, she wrote, “seems to have forgotten” that wisdom.
An undisclosed number of detainees remain hunger striking at Guantánamo. In 2013, after nearly the entire detainee population joined the hunger strikes, the military quelled the ensuing international outrage by refusing to disclose basic information about the persistence of the strikes. It has struck the phrase “hunger strike” from its lexicon, preferring “long term non-religious fasting,”