Opening the detainee files
on Jun 1, 2009 at 1:16 pm
Ruling against a government plea to keep under cover the reasons it has for continued captivity of scores of Guantanamo Bay detainees, a federal judge ruled Monday that the press and public have a constitutional right of access to many of those files — after some delay. Senior U.S. District Judge Thomas F. Hogan, in a 19-page ruling, found that the government’s sweeping demand to shield those documents from the public “attempts to usurp the Court’s discretion to seal judicial records.”
The ruling could amount to a significant victory, even if delayed, for press groups seeking access to the filings. It marked the first time that a federal judge has recognized a clear-cut constitutional right of public access to documents filed in federal habeas cases.
The decision shows that, nearly one full year after the Supreme Court’s ruling in Boumediene v. Bush that Guantanamo prisoners have a right to challenge their ongoing detention, federal judges are still trying to work out the legal basis for processing those habeas cases. Judge Hogan’s order applies potentially to 107 such cases, although he indicated that not all of them will be directly affected. (Judge Hogan ruled on the issue as part of his role to coordinate the processing of Guantanamo cases.)
His ruling involves access to court filings that are formally known as “factual returns.” These are the papers that government officials file in court as answers to a prisoner’s plea in a habeas case for release from confinement. They contain the facts and assertions that the government has about each detainee, explaining why that prisoner should not be released.
Detainees’ lawyers get to see them, but the government has been trying since late December to make sure that they do not emerge publicly until officials have a full opportunity to make sure they contain no secret or classified information — a process that could take weeks or even months.
The returns at issue in Judge Hogan’s order are not made up of government secrets. In fact, they were supposed to contain only unclassified material. But the government, fearing that some secrets may have made their way into the documents, asked Judge Hogan to treat every one of the “factual returns” as if it were under a “protected” seal, and thus not publicly available. The government sought to keep all of those files undisclosed until it could produce public versions, but made no commitment on when that would occur.
Judge Hogan denied that request, finding that Justice Department lawsyers have “failed to provide a court with a sufficient basis for withholding the unclassified information in these cases.” Instead, he gave the government an option: by July 29, it must produce for each habeas case either a public document with nothing in it that remains classified, or else file it with the District judge assigned each habeas case in a private filing using a colored marker to indicate the exact words or lines it wants to shield from public view, along with an explanation for each word or line. That judge will then decide whether to protect those words or lines from publice disclosure.e
If the government misses the July 29 deadline, Hogan decided, any return involved will be treated as open to public access, unless the judge with that case decides otherwise.
In ruling that the press and public have some constitutional right of access to the government “returns,” Hogan acknowledged that he was writing on a largely clean slate.
