Monday, June 1, 2009
Judge Thomas Hogan (D.D.C.) today denied the government's motion for blanket protection of the factual returns in dozens of Guantanamo detainees' habeas cases.
The returns state the government's basis for detention. The court previously implemented a protective order governing unclassified information in the returns that nevertheless may post a threat to national security. Under the protective order, the government may seek to have the court designate information "protected," i.e., available only on a limited basis to detainees' attorneys and witnesses, but not to the general public.
The government moved for blanket protection of the returns in these cases after it discovered that it accidentally released classified information in unclassified returns.
Judge Hogan rejected the government's argument that the returns in their totality pose a threat to national security. Instead he ruled, consistent with the D.C. Circuit's rulings in Bismullah v. Gates, 551 F.3d 1068, 1070 (D.C. Cir. 2009) (dismissed for other reasons) and Parhat v. Gates, 532 F.3d 834, 851-52 (D.C. Cir. 2008), that the government must specifically identify the proposed protected information in the returns, highlighting that information with a "colored marker." Hogan ordered the government then to confer with counsel for the detainee to work it out, and then, if necessary, to file a motion to protect that specific information with the court.
Hogan also ruled that "under the First Amendment the public has a limited right to access the unclassified factual returns in these habeas proceedings." Slip Op. at 17. Hogan:
Public interest in Guantanamo Bay generally and these proceedings specifically has been unwavering. the public's understanding of the proceedings, however, is incomplete without the factual returns. Publicly disclosing the factual returns would enlighten the citizenry and improve perceptions of the proceedings' fairness.
Slip Op. at 15.
The ruling is a significant victory for detainees and for media intervenors who sought access to the returns. It means that the public will have access to at least some of the material--the unclassified, unprotected portions of the returns--that states the government's basis for detention.
It's not yet clear how much information the ruling will yield, however. If the Obama administration reclassifies these detainees--releasing them or moving them to the Article III courts for criminal trials, e.g.--this information supporting their detention at Guantanamo Bay will be moot (along with their currently pending habeas cases, including Hogan's order). Without an active case and court order, the government will not likely release this information, and anyone still interested in it may have to find another way to get it.