Intelligence Chiefs Back A Guantanamo Reversal

By Carol D. Leonnig
Washington Post Staff Writer
Wednesday, September 12, 2007

The Bush administration's top intelligence officials have all filed declarations to a federal appeals court -- including two classified top-secret -- warning that its recent ruling ordering the release of information about detainees at Guantanamo Bay, Cuba, will cause grave harm to national security.

The warnings of five officials, including the directors of the National Security Agency, the FBI and the CIA, were filed Friday by the Justice Department as it seeks a reversal of the court's July ruling. That decision allowed detainees' lawyers to have access to information about their clients as they challenge the detainees' imprisonment.

"The breadth of discovery apparently required by the Court's decision will include information about virtually every weapon in the CIA's arsenal to combat the terrorist threat to the United States," CIA Director Michael V. Hayden said in a public version of his statement asking the court to reconsider. He said "exceptionally grave damage can be expected to result" if the ruling stands.

NSA Director Keith B. Alexander, Deputy Defense Secretary Gordon England, Director of National Intelligence Mike McConnell and FBI Director Robert S. Mueller III also submitted declarations to persuade the court. Hayden's and Alexander's declarations were classified as top-secret, while Mueller's was classified as secret.

Justice Department attorneys made the highly unusual request that Hayden's and Alexander's full arguments be stored in courthouse safes, be viewed only by judges of the U.S. Court of Appeals for the District of Columbia Circuit and be kept out of sight of any other court personnel, including the judges' law clerks, because of the highly classified information the documents contain. Versions that do not convey classified information were also provided to the court.

"These declarations generally explain . . . the risks to national security imposed by the panel's decision," the Justice Department attorneys wrote.

The July 20 ruling centered on how much information detainees should be able to see about the Defense Department's decision to imprison them indefinitely as "enemy combatants." The appeals court ruled that the government must provide to judges and opposing counsel all information, including classified information, used by Combatant Status Review Tribunals in making such determinations. Courts need that information, the judges wrote, to properly determine whether the tribunals were fair to the detainees and whether the individuals should in fact be considered enemy combatants.

Government lawyers argued unsuccessfully that the court should review only what was in the official records of the tribunals, not all the evidence they had gathered to support the hearings.

The ruling was rendered by a three-judge panel of the appeals court, and the government is asking the full 10-member court to reconsider that decision. To do otherwise, Justice Department attorneys wrote, would "severely restrict" the government's ability to collect intelligence and detect plots.

Each of the officials' declarations alleges that providing such classified information to detainees' lawyers is likely to lead to inadvertent disclosure of secrets, and harm the country's ability to gather intelligence.

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