Judge limits secrecy in detainee proceedings

The public has a right to know the details of pending charges and the government’s evidence against Guantanamo Bay detainees who are challenging their detention, a federal judge ruled on Monday.

The government had asked the court to keep unclassified documents sealed in more than 100 cases, saying some classified information had accidentally been included in those files. U.S. District Judge Thomas Hogan refused to allow such sweeping secrecy, saying the government could only ask to seal specific words or passages.

The government’s proposal to seal the documents, known as factual returns, was originally opposed by the detainees. The Associated Press, The New York Times and USA Today joined in the legal action.

Hogan ruled that the public has a First Amendment right to see documents in habeas corpus proceedings, finding that journalists have historically had access to such records in civil cases and that access is important in "enlightening the citizenry."

Hogan also ruled that the government had not established a compelling interest to justify sealing all of the facts about its charges against the detainees. Even if a national security justification might allow the government to get some records sealed, Hogan said, it is not necessary to hold all of the documents in secret.

The ruling stopped short of requiring the immediate release of all factual returns. Hogan gave the government until Sept. 29 to highlight specific words it wants sealed and to explain to the court why each passage should be protected. Then, it will be up to the court to decide what is sealed.

Attorney David Schultz, who represented the news organizations, said the ruling was significant because it "squarely rejected an argument that the government had been advancing, that the constitutional access right does not extend to civil proceedings."

Schultz said that while Hogan seemed to be moving "slowly and cautiously" by giving the government four months to comply, he hoped that the government would take to heart the central meaning of the decision and become more open with information in the proceedings.