The 2nd U.S. Circuit Court of Appeals in Manhattan agreed with the government that images of Mohammed al-Qahtani, if made public, “could logically and plausibly be used by anti-American extremists as propaganda to recruit members and incite violence against American interests at home and abroad.”
Authorities have said al-Qahtani narrowly missed being one of the hijackers when he was denied entry into the U.S. at an Orlando, Florida, airport a month before the attacks. He was captured by Pakistani forces in December 2001 and taken to Guantanamo, where he remains.
The Center for Constitutional Rights sued the departments of Defense and Justice and the CIA in 2012, saying the release of videotapes and photographs of his interrogation and confinement would serve the public interest. The group has accused FBI and military personnel of subjecting al-Qahtani to isolation and aggressive interrogation techniques in 2002, including the use of a snarling dog, stripping him naked in the presence of a woman and repeatedly pouring water on his head.
The U.S. government acknowledged possessing 53 videotapes depicting al-Qahtani in his cell, two videotapes showing intelligence briefings, another videotape showing him being extracted from his cell and six photos of him.
Last year, a federal judge who reviewed the material ruled that it could be kept secret because of national security.
The three-judge appeals panel agreed, but it stressed that its decision did not exempt the government from disclosing images of detainees. It said al-Qahtani’s case was an exception because of his standing as a high-profile al-Qaida operative and by an admission from U.S. officials that his treatment fit the legal definition of torture — factors that could be exploited for propaganda purposes.
Larry Lustberg, an attorney who argued the case for the Center for Constitutional Rights, said it was considering further legal options.
“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,” he said in a statement.
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