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DC Circuit Denies Appeal of Order to Release Force-Feeding Videos

DC Circuit Denies Appeal of Order to Release Force-Feeding Videos

by Derek Gilna

Abu Wa’el (Jihad) Dhiab was imprisoned at the U.S. military prison in Guantanamo Bay, Cuba when he went on a hunger strike. Authorities then repeatedly extracted him from his cell and force-fed him. Thirty-five videos of that procedure convinced a District of Columbia federal district court to stop the force-feeding, and the court ordered the partial redaction, release and publication of the videos after various media outlets intervened in Dhiab’s pending habeas corpus petition. Unsurprisingly, the federal government was uncooperative in releasing the embarrassing videotapes.

The government appealed to the D.C. Court of Appeals, seeking an interlocutory order barring release of the videos or in the alternative a writ of mandamus prohibiting their publication. In a unanimous May 29, 2015 decision, the Court denied both requests. The appellate court observed that it has “jurisdiction from all final decisions of the district courts,” provided they are “final decision[s] ... by which a district court disassociates itself from a case.”

As the D.C. Circuit noted, “The district court’s ... orders in this case plainly do not match that description ... [since it ordered] that ‘counsel shall work cooperatively ... to ensure that all necessary redactions of the videotapes shall be made so that they may then be entered on the public docket.... [And] shall remain sealed until all such redactions are made.... [The parties shall] then submit a Joint Proposal regarding how the videotapes can be made available to the public most efficiently.’”

The Court of Appeals rejected the government’s arguments that the district court’s order qualified as a collateral matter that was an exception to the “finality” requirement, and that the videotapes would be released before the appeal was completed. The Court found the district court had directed that no video tapes be released until the redaction process was complete and a joint release order prepared.

The D.C. Circuit also rejected the government’s final argument that “In the absence of an appeal, it will have to devote hundreds of hours of its employees’ labor to making the required redactions.” Given the scope of government resources and the seriousness of the subject matter of the videotapes, the appellate court was less than sympathetic, noting that “the Supreme Court has consistently declined to find litigation burdens sufficient to bring a case within the narrow scope of the collateral order doctrine.”

Accordingly, the appeal was dismissed for lack of jurisdiction and the Court of Appeals denied the defendants’ request for a writ of mandamus. See: Dhiab v. Obama, 787 F.3d 563 (D.C. Cir. 2015).

Following remand, the government filed a notice with the district court on August 31, 2015, stating it had disclosed redacted versions of “eight forced cell extraction videos” to Dhiab’s counsel. The videos have not yet been made public.


Related legal case

Dhiab v. Obama