Hard National Security Choices
By Steve Vladeck
Monday, March 25, 2013 at 9:24 AM
Even for those keeping up with the Guantánamo litigation, this decision by Chief Judge Lamberth, a declassified version of which was released on Friday, may have slipped under the radar. The specific issue in Barre v. Obama is yet another fight between detainee counsel and the government over classified information in filings by the detainees in their habeas cases. The government sought to deem as protected certain information that was in the detainee’s public factual return (apparently because the government dropped the ball when the public factual return was initially filed several years ago), and Chief Judge Lamberth said no–that the factual return was “officially acknowledged,” and so the information was necessarily in the public record once the return was made publicly available.
But the larger and more important piece of Chief Judge Lamberth’s opinion has to do with Barre’s cross-motion to compel the government to produce public versions of various of his filings. Chief Judge Lamberth summarized the government’s position in response as reducing to ”Declassification is complicated and time consuming and we already have a lot of work–please don’t pile on.” Not surprisingly, he rejected that argument:
While the Court is sympathetic to the government’s position, the Protective Order mandates that classified filings should be made available to the public, with appropriate redactions. Indeed, allowing the Government to indefinitely withhold documents would not only violate the Protective Order, it would provide a backdoor for the Government to effectively “seal a judicial record that the public has the right to inspect and copy,” which is exclusively the prerogative of the Court.
Going further still, Chief Judge Lamberth concluded his opinion with a sharply worded critique of the government’s lethargic pace in general with regard to issuing public versions of Guantánamo-related pleadings:
The Court is troubled by the government’s apparent lack of urgency in issuing public
versions of classified materials filed in Guantanamo proceedings. In this case in particular, the government has failed to produce public versions of the petitioner’s traverse and hearsay briefs, which were filed on July 31, 2009. The government argues that because petitioner’s habeas petition was dismissed and he has been released from the Guantanamo Bay Detention Facility, there is no urgent need to produce these documents. However, this ignores the inherent public interest in Guantanamo litigation generally, and in the facts related to the release of this detainee in particular. . . . More importantly, it is the judiciary and not the executive that determines whether the public can access and inspect court records. Here, petitioner’s documents have remained essentially under seal for approximately 42 months, and the Court sees no reason to write the government a blank check and allow them to produce the documents at some unknown point in the future.