Mohammed al-Qahtani, in a photo released by the Department of Defense in 2008. (Department of Defense/MCT)
Certain images of Mohammed al-Qahtani, the reputed 20th hijacker on Sept. 11, 2001, during his confinement at Guantanamo Bay, could have a damaging effect on American interests and are not subject to release under the Freedom of Information Act, a federal appeals panel decided Tuesday.
The unanimous panel for the U.S. Court of Appeals for the Second Circuit ruled that the federal government sufficiently made its case that the videos and photographs of al-Qahtani should be kept secret under Exemption 1 to FOIA, which provides for the withholding of materials in the interest of “national defense or foreign policy.”
The panel rejected the argument by the Center for Constitutional Rights (CCR), which is seeking access to the materials, that the mere possibility that images of al-Qahtani could be used for propaganda purposes by anti-American interests is not a basis for denying access.
Al-Qahtani’s status as one of the highest-profile U.S. detainees at Guantanamo Bay in Cuba undermines the CCR’s justification for gaining access to the pictures and videos, Judge Jose Cabranes (See Profile) wrote in Center for Constitutional Rights v. Central Intelligence Agency, 13-3684-cv. Cabranes noted that al-Qahtani has been identified by one top government official as having undergone treatment that would qualify as torture, and also as having provided useful information about how Osama bin Laden planned the Sept. 11 attacks and then evaded capture by U.S. forces.
“The record makes clear that al-Qahtani is not just any detainee: The government has publicly stated that al-Qahtani is ‘the intended 20th Hijacker in the 9/11 attack that killed more than 3,000 innocent people,’ and ‘an al Qa[e]da operative with strong ties to senior al Qa[e]da leadership, including Osama Bin Laden,” the court said.
Such disclosures about his background “increase the likelihood that official release of images of al-Qahtani—even images that do not depict abuse or mistreatment-—could be exploited by extremist groups as tools to recruit or incite violence,” Cabranes wrote.
At a minimum, the judge said the government has demonstrated that the images of al-Qahtani would be “singularly susceptible” to incite anti-American hostility and “damage the national security of the United States.”
The panel affirmed Southern District Judge Naomi Reice Buchwald, who also denied release of the images based on the national security exception to FOIA (NYLJ, Sept. 16, 2013).
Among the materials the CCR requested were FBI videotapes showing al-Qahtani in his cell as well as a video showing “forced cell extractions,” “debriefing” videos and six “mug shots,” according to the ruling.
When asked by Droney during oral arguments in June how government transparency would be served by release of the images, CCR’s attorney Lawrence Lustberg said the group does not “have to show this would change the course of the world,” adding, “FOIA allows us to get those things we are allowed to get” (NYLJ, June 26, 2014).
Al-Qahtrani was denied entry into the United States in August 2001 by a U.S. immigration official at the Orlando International Airport. The Saudi native has been imprisoned at Guantanamo Bay since his arrest in Afghanistan in 2002.
In a 2009 interview in the Washington Post, the U.S. Department of Defense’s convening authority for military commissions, Susan Crawford, said that al-Qahtani’s treatment at Guantanamo “met the legal definition of torture.”
Seeking to prevent disclosure under FOIA of the al-Qahtani images, the government filed declarations by Maj. Gen. Karl Horst, Rear Admiral David Woods and Deputy Assistant Secretary of Defense William Lietzau, all attesting to the negative effect on national security and intelligence of disclosures.
Horst, for instance, said that anti-American forces in Afghanistan and elsewhere had previously used videos and photographs of American forces interacting with detainees “out of context to incite the civilian population and influence government officials.” Those images included abuse of Iraqi detainees in Iraq and of alleged incidents of the Koran being mishandled at Guantanamo Bay.
Lustberg, chairman of the criminal defense department at Gibbons in Newark, N.J., said Tuesday he and the CCR were considering their legal options.
He noted that the court did say that it was limiting its ruling to al-Qahtani and that it did not apply to the disclosure of the images of other detainees under FOIA. But Lustberg said the decision is contrary to FOIA’s prohibition against the use of illegality or embarrassment on the government’s part as justification for withholding information.
“This decision represents a sad illustration of the judicial abandonment of its obligations to secure the people’s rights under the Freedom of Information Act,” Lustberg said.
Assistant U.S. Attorney Tara La Morte argued for the government. A spokeswoman for Preet Bharara, U.S. attorney for the Southern District of New York, said Tuesday her office would have no comment.