Earlier today, Judge Rosemary Collyer rejected an attempt by attorneys for detainee Mohammed al Qahtani to modify two protective orders entered in al Qahtani’s habeas case.
The proposed modification concerned court-imposed rules for handling sensitive material. In particular, the lawyers sought to use classified information that they had learned during the habeas case, but in entirely separate matter—that is, al Qahtani’s lawsuit under the Freedom of Information Act (“FOIA”), which is now pending before the Southern District of New York. The plan was to use the classified material in an also-classified declaration, that attorneys desired to file in the FOIA action.
But that isn’t going fly, according to Judge Collyer’s order. It begins as follows:
Petitioner Mohammed Al Qahtani moves for limited modification of the protective orders in this case to enable his counsel to submit a classified declaration in a Freedom of Information Act (FOIA) case filed in New York. See 5 U.S.C. § 552. The protective orders in this case are (1) Judge Hogan’s September 11, 2008 protective order [Dkt. 62] and (2) this Court’s September 18, 2009, protective order [Dkt. 192] restricting the viewing of certain classified discovery materials to certain counsels’ eyes only in recognition of the sensitive nature of the material and the limited number of individuals who have a “need to know.” Now, Petitioner’s counsel, the Center for Constitutional Rights, desires to file a sealed classified declaration in Center for Constitutional Rights v. Dep’t of Justice, No. 12-CV-135-NRB (S.D.N.Y.).
Petitioner has made no showing that the New York district judge has a “need to know” the classified information. Further, it is clear that the sealed classified declaration thatPetitioner’s counsel proposes to file is not relevant or necessary to the resolution of the FOIA case. Because the Government bears the burden of proof in a FOIA case and can meet that burden based on a sufficiently detailed agency affidavit, the only question that a FOIA court addresses is whether the affidavit adequately demonstrates the adequacy of the search and the propriety of the FOIA exemptions claimed. In other words, a court may award summary judgment in a FOIA case solely on the basis of information provided by agency declarations describing the documents and the justifications for nondisclosure with reasonably specific detail and demonstrating that the information withheld logically falls within the claimed exemption isnot controverted by either contrary evidence nor by evidence of agency bad faith. Military Audit Project v. Casey, 656 F2d 724, 738 (D.C. Cir. 1981).
Something interesting about al Qahtani’s unsuccessful motion to modify: it implied at least some dissatisfaction, on counsel’s part, with the information access and use restrictions imposed by current protective orders. We saw the opposite a few weeks back, during oral argument over the rules that would govern attorney-client access, after habeas cases have been voluntarily dismissed or fully adjudicated. During those proceedings before Judge Royce Lamberth, habeas counsel repeatedly depicted the protective order regime has acceptable for the petitioners, the courts, and the government.
UPDATE: a reader points out language from Judge Collyer’s order of September 18, 2009. That order strictly limited the dissemination of certain discovery material, including video and audio recordings of al Qahtani:
FURTHER ORDERED that all material, including without limitation written records and audio/video recordings, that is produced pursuant to this Order shall be for the Court, Respondent’s counsel, and the eyes ofGitanjali Gutierrez, Sandra Babcock, and Dr. Xavier Amador only and shall not be discussed with or released to any others, including Mr. al Qahtani and his other counsel, without further order of the Court.
The above helps clarify the need for al Qahtani’s lawyers to seek a modification of the protective orders from Judge Collyer, and appears to distinguish the situation from that confronting counsel for petitioners in the access cases (though, to be sure, the latter also are subject to restrictions regarding the use of classified and other protected information).