Fight Over Detainee Footage Hits 2nd Circuit

MANHATTAN (CN) - Government transparency supports releasing interrogation footage of the only Guantanamo detainee whom the government admits was tortured, a lawyer told the 2nd Circuit on Wednesday.

"The court's decision in this case is not about a specific detainee about whom we know a great deal," attorney Lawrence Lustberg of the New Jersey-based firm Gibbons PC said at the start of his arguments before a three-judge appellate panel.

Lustberg's client, Mohammad al-Qahtani, allegedly planned to become the "20th hijacker" when he landed in an Orlando, Fla., airport roughly one month before the Sept. 11, 2001, attacks. He was sent back to Saudi Arabia, however, after an immigration agent found him with "no return ticket, no credit cards, and less than $3,000 cash."

Pakistan forces soon captured al-Qahtani at the Afghanistan border on Dec. 15, 2001, and the Saudi citizen arrived at Guantanamo Bay two months later.

Al-Qahtani remains the only Guantanamo detainee whom officials admit was tortured.

Lawyers for the detainee contend that 20-hour questioning, stress positions, forced nudity, waterboarding, religious and sexual humiliation, and threats with a snarling dog left him a "broken man."

Al-Qahtani, who turns 35 in November, was found "talking to nonexistent people" and "crouching in a corner of his cell covered in a sheet for hours on end," they said.

Finding that his treatment "met the legal definition of torture," then-Convening Authority for Military Commissions Susan Crawford dismissed all charges against al-Qahtani without prejudice in 2008.

The Center for Constitutional Rights, a nonprofit that represents al-Qahtani and other Guantanamo detainees, filed a Freedom of Information Act request more than four years ago for footage and photographs of his interrogations.

While the CIA refused to confirm or deny the existence of the images, the FBI and Department of Defense identified six photographs and 53 videotapes of al-Qahtani inside his cell, but refused to release them under the classification exception.

One video captured a forced cell extraction and two depict intelligence debriefings.

Though the government has argued that the tapes do not depict torture, it said they still should not be released because propagandists could manipulate the footage to provoke violence against U.S. troops around the world.

U.S. District Judge Naomi Buchwald never viewed the footage before deciding that they could not be released for reasons of national security.

After privately reviewing the "FBI's individualized descriptions" of the videos and the government briefings, Buchwald deemed the tapes innocuous.

She did not allow defense attorneys to submit their competing summaries of what is depicted.

Lustberg told the appeals court Wednesday that accepting this position could have broad ramifications for seekers of government records.

"If that were true, then literally anything in the government's possession could be subject to manipulation," he said.

Although al-Qahtani's lawyers have long disputed the official characterization of the tapes, only certain members of the legal team have viewed them in classified facilities, and they have been barred from describing them to the court or the public.

At today's hearing, Judge Jose Cabranes asked, "Do the images show torture?"

Lustberg replied that he had not personally viewed the tapes, but the government's take on them is helpful to his case.

Judge Christopher Droney remarked that, if the footage did not show abuse, it would have less social value.

"Then, why do you need them for transparency?" Droney asked. "What's the value to society?"

"Most respectfully, it doesn't matter," Lustberg countered. "We don't need to show that the images are important. ... The Freedom of Information Act allows us to get those things that we are allowed to get."

Any footage would be a "matter of public interest" because al-Qahtani is "the only detainee where the 'torture' word has been used," the lawyer added.

In court declarations, three classification officials - Maj. Gen. Karl Horst, Navy Rear Adm. David Woods and Deputy Secretary of Defense William Lietzau - argued broadly against releasing detainee images, but did not make arguments specifically about al-Qahtani.

In one declaration, Woods testified that footage showing the "appearance of cooperation with the United States" could chill intelligence collection by making "it substantially less likely that the detainee will cooperate and provide information in the future."

In another, Lietzau wrote: "If images of detainees were to be released to any member of the public who requests them, detainees would quickly learn that these videos and photographs are a useful means for communicating with others, potentially including al-Qaida and associated enemy forces."

Lustberg called such statements are "as general as can be," and said they can be used to defeat any kind of information request.

"I would recommend the court to look carefully on the declarations upon which the government relies," he added. "There are no limiting principles in the government's arguments."

Droney pressed government lawyer Tara La Morte on this point.

Al-Qahtani is "alleged to be the 20th hijacker," Droney said. "That's a big deal for the court. Is there anything in those declarations that says that?"

La Morte acknowledged that the point is "not in the declarations, but it's undisputed in the record."

Judge Susan Carney, the third member of the appellate panel, chimed in: "Why then don't we have a problem with the limitlessness of your argument?"

La Morte insisted that the arguments were specific to a "broad class of records," referring here to the Guantanamo detainees.

Lietzau, she noted, cited a prohibition in the Geneva Conventions against releasing images of captives. The exception to this rule involves allowing the International Committee of the Red Cross to get a detainee's permission to send a detainee's photograph for release to his family, La Morte said.

"Despite numerous opportunities, Mohammad al-Qahtani has never consented to that process," she said.

Al-Qahtani's attorneys maintain that their client consented to the release of the footage and images through the lawsuit.

The government disputes that al-Qahtani was mentally competent to make that decision, but denies that he has the ability to seek the release of images outside the Red Cross process.

In a one-minute rebuttal, Lustberg asserted that al-Qahtani had only been declared incompetent a year after he agreed to the lawsuit.

"Images are released by the government all the time," he said. "They're released because the detainee consents to them."

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