The government can withhold photographs and videotapes—some of which may contain footage of torture and mistreatment—of Guantanamo Bay detainee Mohammed al-Qahtani, a federal appeals court ruled Tuesday.
Though never tried nor convicted of any specific crime, the government has accused al-Qahtani of being the “20th 9/11 hijacker” after he was refused entry to the country just weeks prior to the attack. He was later apprehended in Pakistan and taken to the American offshore prison where he has remained ever since.
The Center for Constitutional Rights (CCR) in 2012 filed a FOIA lawsuit (PDF) against the Department of Defense, the Department of Justice, and the CIA, arguing that the release of photographs and video footage of al-Qahtani’s interrogation and imprisonment would serve the public interest. The government previously admitted to possessing six mugshots of al-Qahtani, 53 videotapes of him in his cell, two videotapes showing intelligence briefings, and one video showing two “forced cell extractions.”
But the Second Circuit Court of Appeals in New York ruled that publishing images of al-Qahtani “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.” The decision upheld a previous ruling by the District Court, which said that the government had “met its burden” of proving that photos and video footage of al-Qahtani could be kept secret “in the interest of ‘national defense or foreign policy.'”
Al-Qahtani has been held at Guantanamo since 2001. Authorities claimed that al-Qahtani narrowly missed being one of the hijackers on September 11 when he was denied entry into the U.S. at an Orlando, Florida, airport a month earlier, an accusation that led to his infamous moniker. In 2008, seven years after his imprisonment began, the Defense Department accused him of terrorism and war crimes, among other charges, but dropped its case against him a few months later with no explanation. Al-Qahtani later repudiated all of his statements and testified — corroborated by records published by CCR — that he had falsely confessed to the crimes under torture.
CCR said FBI and military personnel subjected al-Qahtani to isolation, sleep deprivation, physical and sexual pain and humiliation, forced hydration, and other so-called “interrogation methods” that a top military official later said threatened his life and amounted to torture, resulting in her decision to drop the case.
“This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health,” Susan J. Crawford, who took Defense Secretary Robert Gates’ position as Convening Authority of the military commissions, toldthe Washington Post in 2009. “It was abusive and uncalled for. And coercive. Clearly coercive.”
“We tortured [Mohammed al-]Qahtani,” Crawford said. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.
Al-Qathani’s lawyer and CCR staff attorney Gitanjali S. Gutierrez told TIME in in 2006 that her client “painfully described how he could not endure the months of isolation, torture and abuse, during which he was nearly killed, before making false statements to please his interrogators.”
In its lawsuit, CCR stated that accepting the District Court’s original “propaganda” justification for withholding the photos would allow the government to “disregard the people’s right to a transparent government whenever there is a distant risk that someone, somewhere could respond with violence.”
“To this day, Mr. al Qahtani has not received any therapeutic medical evaluation of or treatment for the physical or psychological injuries from his abuse,” CCR said in a statement when it released the records. “He continues to suffer from ongoing psychological pain and suffering arising from his torture and cruel, inhuman and degrading treatment. Despite evidence of U.S. officials’ responsibility for and complicity in his torture and cruel, inhuman and degrading treatment, no U.S. official has ever been held accountable.”