By Del Quentin Wilber
Washington Post Staff Writer
Monday, March 16, 2009 9:03 AM
The Justice Department has filed "unclassified" records in federal court outlining the government's cases against more than 100 detainees at the U.S. military prison at Guantanamo Bay, but the records are not being made public.
This has triggered a legal skirmish with detainees' attorneys, who say the excessive secrecy greatly complicates their work, especially in light of looming hearings.
Three news organizations have also joined the fight, saying the government is keeping valuable information from the public. The government says it wants to keep the records from public view for now as a national security precaution after it discovered classified information in the documents.
U.S. District Judge Thomas F. Hogan has scheduled a March 26 hearing into the matter .
The documents in dispute, known as "returns," have been filed against more than 100 detainees in federal lawsuits challenging their confinement in the U.S. military prison in Cuba.
The returns are essentially charging documents that contain the government's allegations and evidence justifying the continued imprisonment of detainees.
The government has allowed detainees' attorneys to review classified versions of the documents at a secure facility. Under a judge's orders, the government has filed unclassified versions of those documents with the court. The unclassified versions make it easier for detainees' attorneys to attack government evidence and allow the public to monitor the legal process.
The government filed about a dozen of the returns on the public docket last year. But, a few months ago, the Justice Department began filing the unclassified records under seal, meaning that only the judge, the detainees' attorneys and government officials can review them.
Justice Department lawyers say they took that step after discovering that classified information had slipped into the unclassified documents.
They blamed the errors on "the speed of the redaction process," required to meet tight court-mandated deadlines. The government is particularly concerned that enemies could access all the documents and analyze them for insights into the country's intelligence operations.
The department lawyers said that they have sealed the documents temporarily and that they will eventually make them public. They said they simply need more time to "complete the declassification review."
In its court pleadings, the Justice Department said the government is permitting detainees' attorneys to share the documents with their clients. The detainees' attorneys are also allowed to show the returns to witnesses. But the witnesses must agree to court rules restricting the information's disclosure, the department said.
J. Wells Dixon, a staff lawyer with the Center for Constitutional Rights, which represents many detainees, said the decision to seal the records makes it harder to share their contents with clients, even if the documents are "unclassified." He also said that witnesses, some of whom are former detainees, may not agree to the court's security rules because they do not trust the government.