US Justice Department Finally Allows Attorneys to See Leaked Guantánamo Files, But Not To Download, Save Or Print Them – OpEd

In the US government’s farcical world of overclassification, four reporters were banned from Guantánamo last year for reporting the name of a witness in the trial by Military Commission of the Canadian citizen and former child prisoner Omar Khadr, even though his name had been widely reported in the media, and was available online.

That was the Defense Department’s doing, but the whole story of WikiLeaks and its exposure of classified US documents — whether it is the Collateral Murder video, the Afghan and Iraqi war logs, the diplomatic cables, or the Detainee Assessment Briefs from Guantánamo — is one of overclassification across every government department, in which material that should not necessarily be secret was, until it was leaked, jealously guarded by a government that behaves as though it was not elected by the people, and is not answerable to them.

The treasure trove of documents released to WikiLeaks also came about because, after the pre–9/11 failures of the intelligence agencies to communicate with one another, the creation of a vast database accessible by, literally, millions of government employees, was designed to facilitate the sharing of useful information. This was in spite of the fact that it should also have been obvious that, with so many people having access to it, it was only a matter of time before someone concerned with transparency and justice — allegedly Pfc. Bradley Manning, imprisoned for leaking the documents since last May — would take advantage of the 21st century whistleblowing opportunities made available by WikiLeaks to let the world know what it was missing.

WikiLeaks is at the heart of the latest classification contest, following the release, in the last week of April, of classified military documents (known as Detainee Assessment Briefs) for 765 of the 779 prisoners held at Guantánamo throughout its long history. Specifically, attorneys representing the 171 remaining prisoners wanted to be able to use the information in the documents — more often than not a collection of allegations derived from extremely dubious witnesses, both in Guantánamo and in the secret torture prisons run by the CIA — to defend their clients in their ongoing habeas corpus petitions.

These have been underway since June 2008, when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights, and although the prisoners met with initial success, securing 38 victories out of 52 cases between October 2008 and July 2010, the Supreme Court’s vital lifeline for the prisoners has been gutted of all meaning in the last year, as Conservative judges in the D.C. Circuit Court have successfully rewritten the rules governing detention.

As a result, the District Court judges’ skepticism regarding the quality of the government’s witnesses (as reflected in the documents released by WikiLeaks) has been rendered largely irrelevant. The appeal court judges have decided that the government doesn’t even need to present credible allegations in order to continue detaining prisoners, very possibly for the rest of their lives, even though most of them were nothing more than foot soldiers for the Taliban, rather than anyone connected with international terrorism.

Under these circumstances, the usefulness of WikiLeaks’ documents is in doubt, but that is a reflection on the failures of the executive branch, the Justice Department and the Supreme Court to stem the draconian paranoia of the Circuit Court, rather than a reflection on the objective usefulness of the WikiLeaks documents when it comes to establishing the truth about the prisoners held at Guantánamo.

With this in mind, it was depressing that, when the WikiLeaks documents were released, the Justice Department immediately prohibited attorneys for the Guantánamo prisoners from using the information, a ban that stood until last Friday (June 10), when the Justice Department relented.

As Charlie Savage reported for the New York Times, the prisoners’ lawyers “have security clearances, and so are required to follow government rules for the handling of classified information.” They were therefore unable to use any information in the files — even though everyone else in the world had access to it — until last Friday.

As the Times explained, “In guidance to the lawyers … the department’s court security officer said Friday that they were now permitted to view the leaked documents on the Internet.” However, the Justice Department directive added, “While you may access such material from your non-US-government-issued personal and work computers, you are not permitted to download, save, print, disseminate, or otherwise reproduce, maintain, or transport potentially classified information.”

In a further restriction, it was also announced that the attorneys would have access to the files, to use in connection with court filings, in the secure facility near Washington D.C., where they have to travel to view any of the classified information in their clients’ cases. This includes some, or all, of their own transcripts of their discussions with their clients in Guantánamo, which is presumptively classified, and is only available to them outside of the secure facility if a Pentagon censorship team declares that it has been unclassified.

David Remes, a lawyer for several Yemeni prisoners, who, as the Times put it, “pressed the government to lift the restrictions on the files,” responded to the news by stating that the limitations were “still surreal.”

The Times captured the surreal nature of the arrangement by noting, “People with security clearances are not usually allowed to access or store classified information on nonsecured computers, and the information technically remains restricted until it is formally declassified — even if it has been leaked to the public.”

This breakthrough is certainly a minor triumph for the Guantánamo prisoners and their lawyers, although a hidden subtext remains unexplained, and is likely to remain so given the many restrictions on lawyers speaking freely about their clients.

That hidden subtext relates to the government’s honesty in releasing information to the prisoners’ attorneys, and the question of whether or not they have been entirely honest occurred to me because 59 cases have been decided in the courts, and progress has been made on numerous other pending cases, but I have no idea whether, in those cases, the government has provided attorneys with all the information they need to defend their clients, such as potentially exculpatory material in its possession.

My suspicion is that the Detainee Assessment Briefs reveal that the government has kept information hidden, but as mentioned above, I also doubt that any lawyer will be at liberty to tell me whether or not that is true.

Note: David Remes’ initial complaint is here, and the government’s response is here.