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2nd Cir Denies FOIA Request for Photos of Guantanamo Bay Detainee

By Mark Wilson, Esq. on September 03, 2014 | Last updated on March 21, 2019

Mohammed al-Qahtani was alleged to be the "20th hijacker" of the September 11, 2001 hijackings. He's been held at the U.S. facility in Guantanamo Bay, Cuba since 2002. The Center for Constitutional Rights (CCR) has attempted to use the Freedom of Information Act to get "certain videos and photographs" of al-Qahtani -- ostensibly images of him being tortured, which CCR claimed has been happening for the last 13 years.

Today, the Second Circuit affirmed a district court ruling denying CCR access to those documents on the ground that it could compromise national security.

A Heckler's Veto

The Second Circuit at least attempted to walk a fine line, here. Naturally, the government opposed releasing the documents, claiming that releasing photos and videos of al-Qahtani "could logically and plausibly serve as propaganda for extremists and incite anti-American violence, which, in turn, could reasonably be expected to result in damage to national security."

The government also went one step further: "Specifically, instead of explaining how the particular records at issue here would provoke the United States' enemies, General Horst suggests that release of any depiction of any detainee would endanger national security and, accordingly, should be exempt from disclosure under FOIA." The court declined to adopt such a reflexive standard but concluded that, in this case, anyway, it was satisfied by the government's proof that disclosure of the videos and photos could incite violence abroad.

If Not Torture ... Then What?

We're never apprised of what the photos and videos contain -- except that we know that it's not torture. And that's not a commentary on the malleable definition of torture: both the government and CCR agreed that the documents being sought don't depict al-Qahtani being tortured or mistreated. However, the court said that al-Qahtani's prominence meant that "even images that do not depict abuse or mistreatment ... could be exploited by extremist groups as tools to recruit or to incite violence."

We're also not apprised of what, specifically, the government claimed would happen, other than vague statements about incitement to violence and propaganda. All of this was undoubtedly disclosed in camera and ex parte. The government's case is helped along by a more lenient standard for summary judgment in FOIA request exemptions, specifically, which will be granted if they are "logical or plausible." Note that the government doesn't need to demonstrate that such a thing has occurred in the past or will reasonably occur. Their hypothetical situation just has to be plausible.

Fact-Specific Circumstances

The court carefully reiterated that its holding was limited only to this case and should not be read to restrict access to materials depicting detainees anytime the government makes a claim that disclosure could raise anti-American sentiment abroad. "Whether the government's justifications for withholding information in the name of national security go too far is a question that must be evaluated in the context of the particular circumstances presented by each case."

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