Records Pertaining to High Profile Terrorist Exempt Under Federal Freedom of Information Act

The U.S. Court of Appeals for the Second Circuit has held that videos and other recordings of a detained high profile terrorist were exempt from public disclosure as release of the records could incite harm against the United States.

The Center for Constitutional Rights (CCR) requested these records after news of the detainee’s treatment by the Department of Defense (DOD) and the FBI (together, the government) became public. The government ignored these requests and CCR filed suit in a trial court to order the disclosure of these records pursuant to the Freedom of Information Act (FOIA). Seeking summary judgment, the government argued that the records were exempt due to an executive order and that because the records depicted a well-known captive terrorist, the disclosure of them could be used by America’s enemies to bring harm to the United States. Agreeing, the trial court granted summary judgment in the government’s favor. CCR appealed and on September 2, 2014, the appellate court affirmed the judgment.

Mohammed al-Qahtani, known as the “20^th Hijacker,” has been detained at Guantanamo bay since February 13, 2002, for his alleged failed attempt to enter the United States as a hijacker of the planes in the September 11 terrorist attack. Leaked information of al-Qahtani’s interrogations was published in Time Magazine in 2005. The government made certain written disclosures of these events afterwards, including conditions of al-Qahtani’s confinement and his responses to interrogation. A DOD official, Susan Crawford, called al-Qahtani’s treatment “the legal definition of torture.”

On March 4, 2010, CCR sought video, audio, and pictures of al-Qahtani between 2002 and 2005 from the government pursuant to FOIA. Receiving no response, CCR filed suit in the U.S. District Court for the Southern District of New York on January 9, 2012, seeking these records. The government declared the records – allegedly none of them involving torture – to be classified under an executive order as a matter of foreign policy or domestic defense and therefore exempt from disclosure. The government also maintained that disclosure could “endanger [] the lives and physical safety” of Americans in countries such as Afghanistan, and using past examples, it described how the images “would facilitate the enemy’s ability to conduct information operations and could be used to increase anti-American sentiment.”

In reviewing FBI documents explaining the videos’ content, the district court granted summary judgment for the government. The court held that it was “both logical and plausible that [(1)] the disclosure . . . could reasonably be expected to harm national security” and that (2) the “extremists would utilize images of al-Qahtani…to incite anti-American sentiment; to raise funds, and/or to recruit other loyalists, as has occurred in the past.” Additionally, according to the district court, the latter misuse was “particularly plausible in this case, which involves a high-profile detainee, the treatment of whom…‘met the legal definition of torture.’”

Finding no conflict of law on appeal, the appellate court affirmed the judgment with similar reasoning. It rejected CCR’s two arguments that the government’s position voided FOIA’s purpose of informing the public, especially “where the information was most controversial and, accordingly, of greatest interest to the public” and that the government’s prior disclosures concerning al-Qahtani did not justify withholding the requested images – a claim rejected in the district court.” [I]mages of al-Qahtani…“the appellate court said, “may prove more effective as propaganda than previously released written records that disclose the same.”

However, as al-Qahtani was a unique case, the appellate court warned that its holding did not authorize “that every image of a specifically identifiable detainee is exempt from disclosure pursuant to FOIA, nor . . . that the government is entitled to withhold any documents that may reasonably incite anti-American sentiment.” See: Ctr. for Constitutional Rights v. CIA, 765 F.3d 161 (2d Cir. N.Y. 2014).

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