Thursday, July 2, 2009
IT IS IMPOSSIBLE to perfectly balance the need to protect national security with the transparency required in a democracy.
But a D.C. federal judge has fashioned a wise compromise in the cases of detainees challenging their captivity at the U.S. Naval Base at Guantanamo Bay, Cuba, that respects both imperatives.
Last month, Senior Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia rebuffed an administration request to put under a protective order -- and keep from public view -- all evidence used to justify the government's detention of Guantanamo prisoners. Judge Hogan concluded that such an action was overly broad and unnecessary to protect against disclosure of sensitive national security information. He also concluded that the government's action "attempts to usurp the Court's discretion to seal judicial records" by eliminating the judge's ability to make a determination on individual cases. Lawyers for the detainees had opposed the government's move, as had USA Today, the New York Times and the Associated Press. Judge Hogan ordered the Justice Department to file unclassified or declassified versions of the evidence by July 29. (Detainee lawyers with proper security clearances already had the right to review the full record in private.)
In rejecting the Justice Department's overreaching, the judge did not order immediate or even full disclosure of the evidence -- known in habeas corpus proceedings as "returns." Instead, he called on the government to flag on a case-by-case basis information that it believed was too sensitive for public dissemination. After identifying specific passages or information, the government must submit its request to the presiding judge, who has to decide whether the material should be withheld.
At the same time, Judge Hogan ruled that media organizations may not request copies of the unclassified documents until late September; this lag time is meant to ensure that information legitimately deemed too dangerous for public disbursal isn't inadvertently included in the scrubbed documents. The government originally asked for the umbrella protective order after discovering that some classified information had been left in documents that were ultimately released.
"The issue of what to do with the detainees at Guantanamo Bay remains a source of great public interest and debate," Judge Hogan wrote. "Providing the public with access to the charges levied against these detainees . . . ensures greater oversight of the detentions and these proceedings. As long as public access does not come at the expense of the litigation interest of [the detainees] or national security, the Court believes the public has a . . . right to access the returns." Perfectly put.