Last Monday, I flagged Chief Judge Lamberth’s important new decision in a Guantánamo habeas case–Barre v. Obama–in which, among other things, he excoriated the government for how long it has taken them to release declassified (and therefore public) versions of filings by the detainees in their habeas cases.
Over the weekend, I received the following reply from my friend Prof. Ramzi Kassem at CUNY, which I’m posting in its entirety:
In his post on the recent opinion in Barre v. Obama, Professor Steve Vladeck rightly draws attention to Chief Judge Royce Lamberth’s order that the U.S. government complete by date certain the declassification review of pleadings that were filed over three years ago under classified seal by the Guantánamo petitioner in that case.
While that aspect of the Barre ruling will doubtless strengthen the hand of any habeas lawyers who wish to opt out of the government’s voluntary declassification queue in order to press for speedier production of unclassified versions of their filings, it is neither unprecedented nor completely unexpected. The Court of Appeals has routinely set declassification deadlines for briefs and appendices in these extraterritorial military detention cases. And the protective order governing Guantánamo habeas cases itself mandates declassification of all filings—a provision the chief judge is merely enforcing through his ruling.
What scholars and practitioners alike should not overlook—and this may well prove to be the opinion’s lasting contribution—lies in Chief Judge Lamberth’s analysis of what constitutes official U.S. government acknowledgement or disclosure of sensitive or classified information.
Indeed, in Barre as in many other cases these last few years, the government has relied on Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007), to argue broadly that even disclosure by the government does not amount to official disclosure if it is inadvertent. Barre takes a salutary step towards cabining the scope of that holding to the unique facts of al-Haramain. Chief Judge Lamberth aptly reminds the government that where its own interagency process releases records that then remain for years accessible on the public docket, the government cannot argue that disclosure did not occur.
It will be interesting to see if the government will be so brazen as to now attempt to claw back those records from the public docket. In the meantime, a tip of the hat to Wells Dixon and the Center for Constitutional Rights is in order, for some very sharp lawyering in Barre!