By Carol Rosenberg
The Miami Herald
GUANTANAMO BAY — The Justice Department late Wednesday asked a federal judge to delay the release of dozens of videos of a Guantánamo captive being tackled, shackled and forced-fed at the prison camps in Cuba, saying the government is still deciding whether to block the judge’s order to let the public see the material.
“Enforcement of the order before any appeal is heard and resolved will undoubtedly cause respondents irreparable injury, forcing the disclosure of classified information with no remedy and wasting significant time and resources should respondents prevail on appeal,” the Justice Department wrote in a 17-page filing.
U.S. District Judge Gladys Kessler had ordered the government to prepare for release by blurring prison staff faces in more than 11 hours of footage of Guantánamo Army guards forcing Syrian captive Abu Wa’el Dhiab from his cell to his tube feedings. She set a redaction deadline of Friday.
But the government filing late Wednesday included a partially redacted declaration from an unnamed Navy commander responsible for the redaction of sensitive legal material from or about Guantánamo that cast Kessler’s deadline as impossible to meet.
The officer estimated a team could perhaps get the recordings ready for release in 25 work days but then added a hitch: Even if editors who could do the work at the Defense Intelligence Agency are taken away from other duties to work on this full time, they were unavailable Nov. 1-16 “due to a previously scheduled [Department of Defense] exercise.”
In addition, the officer said equipment malfunctions or “competing work requirements” could slow the process even more. The document made clear that the work had not yet begun, meaning in the best-case scenario the videos wouldn’t be redacted for release before mid December.
Dhiab, 43, is an on-again, off-again hunger striker. His lawyers say he doesn’t want to die but is refusing to cooperate with his captors to protest both his brutal treatment and his indefinite detention in southeast Cuba years after he was approved for release. The footage is evidence in Dhiab’s lawyers bid to get Kessler to intervene in his conditions of confinement.
The Obama administration has opposed release, arguing the disclosure could expose prison camp secrets and put troops portrayed in them at risk. Media organizations petitioned for their releae arguing that the potential for embarrassment was not a legitimate excuse for withholding them.
In a filing Thursday the news organizations asked the judge to set firm deadlines and issue an order for an expedited appeal. They argued there was a “significant, on-going harm to the public’s constitutional right of access.”
Wednesday’s government request for delay also included a declaration from the prison’s overall commander since July 10, Navy Rear Adm. Kyle Cozad, reiterating his predecessor’s assessment that the videos are properly classified as “secret,” and shouldn’t be released.
Releasing them, the admiral said, could “cause serious harm to national security,” especially in light of renewed military activity in the Middle East -- an apparent reference to the U.S.-led air campaign against the Islamic State.
The Justice Department filing said it was still weighing whether to appeal the overall release order, which is cast as the court substituting its judgment on matters of secrecy for that of executive branch officials, contrary to established precedent.
Dhiab has been held at the Pentagon prison in Cuba since 2002, and was cleared for transfer by 2010. He is on a short-list for transfer to Uruguay under a deal that was struck earlier this year and now awaits the results of Uruguay’s presidential elections.
The news organizations that petitioned Kessler for release of the videos are: McClatchy newspapers, which owns the Miami Herald; ABC; the Associated Press; Bloomberg news service; CBS; the Contently Foundation; Dow Jones; First Look Media; the Guardian; Hearst Corp.; National Public Radio; The New York Times; Reuters; the Tribune Publiishing Co.; USA Today and the Washington Post.
“The First Amendment conveys a right to inspect and copy the evidence in this closely-followed proceeding while the evidence is of greatest interest to the public--specifically, during the hearing and while the Court is deciding Mr. Dhiab’s motion for a preliminary injunction,” First Amendment attorney David Schulz wrote in their nine-page opposition.
“Months from now, the evidence will still be of historic interest, but during the pendency of this proceeding, it is news.”