Mohammed al-Qahtani
Mohammed al-Qahtani (Department of Defense)

An attorney seeking the release of records on the alleged 20th Sept. 11 hijacker, who is being held in Guantanamo Bay, told a federal appellate panel Wednesday that the government’s justification for withholding images of Mohammed al-Qahtani is so broad as to be meaningless under the Freedom of Information Act.

Lawrence Lustberg argued before the U.S. Court of Appeals for the Second Circuit that generalized fears by the Department of Defense and other agencies that releasing images of al-Qahtani could incite anti-American violence and inhibit cooperation in terrorism investigations were too vague.

“Why do you want these records? To satisfy yourself about the need for transparency in government?” Judge Jose Cabranes (See Profile) asked Lustberg, a partner at Gibbons who was appearing for the plaintiff in Center for Constitutional Rights v. Central Intelligence Agency, 13-3684-cv.

“Yes, absolutely,” Lustberg answered, adding that this was “one of the only cases where the government has admitted to torturing a detainee,” and that releasing the images was “critical for the historical record” and “for the sake of an informed electorate.”

But Assistant U.S. Attorney Tara La Morte urged Judges Cabranes, Susan Carney (See Profile) and Christopher Droney (See Profile) to uphold Southern District Judge Naomi Reice Buchwald’s (See Profile) ruling barring release of the records. La Morte said the panel should find that government officials provided ample support for an exemption under the Freedom of Information Act on national security grounds.

Al-Qahtani has been held at Guantanamo Bay since 2002, and according to the center’s brief, has been subject to sustained abuse, including being held in stress positions, undergoing 20-hour interrogations, being tied to a dog leash and led through a series of dog tricks, being stripped naked in the presence of a female, having water poured over his head, and being told to pray to an idol shrine.

Lustberg said in his brief that a Department of Defense official overseeing the military commissions prosecutions in 2009 “admitted that the government had tortured al-Qahtani and that, as a result, he could not be prosecuted before a military commission.”

The images the Center for Constitutional Rights are seeking, including videotapes, photos and mugshots, do not depict torture—instead they show him performing daily activities at Guantanamo and interacting with military personnel.

Lustberg claims that Buchwald, in ruling for the government in 2012, showed excessive deference to the Department of Defense’s claim that releasing images of any detainees could inflame anti-American sentiment and releasing these records in particular would reveal al-Qahtani to be a cooperator.

Buchwald had held in barring the release of video and photographic images of al-Qahtani that the government had met the standard for a “logical and plausible” claim of future harm under Exemption 1 of the act.

“What this case is fundamentally about is deference,” Lustberg said. He asked the panel to issue a decision making it clear that the government must offer more than conclusory or general reasons why withholding images is necessary for national security.

Lustberg said the government was basing its argument on the fact that there was “all of this other stuff out there” —reports of mistreatment of the Koran, photos of Marines urinating on the bodies of killed combatants and other reports—true or false—that have incited anti-American violence.

“You don’t dispute that those effects exist?” Cabranes asked.

“We do not your honor,” Lustberg answered, but said citing those effects didn’t justify a blanket withholding of records.

La Morte made the point that al-Qahtani’s status as a high-profile terrorist made any publicized images of him more dangerous. And she noted that images were capable of being manipulated and used for propaganda purposes.

On the sufficiency of the government declarations, Carney was concerned about the “limitlessness” of La Morte’s argument. “If the declarations are not focused specifically on Mr. al-Qahtani,” why couldn’t they apply to “anyone, anywhere?” Carney said.

La Morte answered that the declarations did not have to be “detainee specific.” When Cabranes asked what authority she had for that contention, La Morte answered there was nothing in the law or legislative history requiring the government to do more than present the case, under Exemption 1, that the release of the records could be “reasonably likely” to harm national security.

On the issue of protecting the identity of cooperators, La Morte said even the release of the mugshots “exacerbates detainees fear of reprisal.”

“An image allows a detainee to be connected to their family,” she said, adding later, “The United States needs to be able to assure its sources” that it will protect their confidentiality.

Earlier, Carney asked Lustberg whether, given al-Qahtani was “reputed to be the last hijacker, doesn’t that make it more potent?”

“But that’s not an argument that appears in any of the declarations,” Lustberg said. “This court and the court below are entitled to specificity.”

“If the declarations were more specific, the government would have a stronger case?” Carney asked Lustberg, who agreed that it would.

Droney asked Lustberg how transparency would be served by the ordered release of records that confirm what people already know, including a photo of al-Qahtani that had already been released.

“We don’t have to show this would change the course of the world,” Lustberg said. “FOIA allows us to get those things we are allowed to get.”