Originally published by Reuters by Jonathan Stempel on 9/2/14
(Reuters) – A federal appeals court on Tuesday said photos of a Saudi national imprisoned at Guantanamo Bay who U.S. officials have said intended to be the “20th hijacker” in the Sept. 11, 2001 attacks should stay classified, in the interest of protecting national security.
The 2nd U.S. Circuit Court of Appeals in New York said the government plausibly showed that releasing images of Mohammed al-Qahtani, who was subject to interrogation techniques that a government official likened to torture, could endanger military personnel, diplomats and workers in Afghanistan and elsewhere.
The Center for Constitutional Rights, which represents al-Qahtani in a federal lawsuit in Washington, D.C. over his treatment, had sought the disclosure of photographs, videos and other audiovisual evidence of his confinement conditions under the federal Freedom of Information Act.
Writing for a three-judge panel, however, Circuit Judge José Cabranes said the release “could logically and plausibly harm national security because these images are uniquely susceptible to use by anti-American extremists as propaganda to incite violence against United States interests domestically and abroad.”
Al-Qahtani has been held since February 2002 at the U.S. prison camp in Guantanamo Bay, Cuba.
He had been the target of a “special interrogation plan” that included 20-hour interrogations, sleep deprivation, prolonged exposure to cold temperatures, forced nudity, performance of dog tricks while wearing a dog collar, and sexual humiliation, according to publicly leaked interrogation logs.
Lawrence Lustberg, a lawyer for CCR, in a statement objected to what he called the “perverse” nature of the 2nd Circuit decision.
“In effect, the court has embraced a rule that allows the government to use its own human rights abuses as a justification for concealing evidence of that misconduct from the public,” Lustberg said. “We are actively considering our next steps.”
A spokeswoman for U.S. Attorney Preet Bharara in Manhattan declined to comment.
A top Bush administration official overseeing practices at Guantanamo declined to recommend that al-Qahtani be prosecuted, telling the Washington Post in 2009 that his treatment “met the legal definition of torture.” The case was dismissed without prejudice, meaning charges could be brought again.
Nearly 3,000 people died in the Sept. 11 attacks.
Four planes were hijacked, with two crashing into the World Trade Center in New York, a third into the Pentagon near Washington, and a fourth in a western Pennsylvania field.
In 2005, the government said al-Qahtani intended to help hijack the fourth plane, United Airlines Flight 93, but that immigration officials denied him entry to the United States. Flight 93 was the only plane with four hijackers, not five.
Tuesday’s decision upheld a Sept. 2013 ruling by U.S. District Judge Naomi Reice Buchwald in Manhattan.
The case is Center for Constitutional Rights v. Central Intelligence Agency et al, 2nd U.S. Circuit Court of Appeals, No. 13-3684.
(Reporting by Jonathan Stempel in New York; Editing by Cynthia Osterman)