A federal appellate court has upheld the convictions and sentence of a Navy lawyer who, in January 2005, mailed the names of Guantanamo Bay detainees to a lawyer at the Center for Constitution Rights in a Valentine’s Day card.
In U.S. v. Diaz, the U.S. Court of Appeals for the Armed Forces on Thursday unanimously affirmed Lt. Commander Matthew Diaz’s convictions for conduct unbecoming an officer and for removing and communicating classified information. Diaz was sentenced to six months’ confinement and dismissal from the Navy.
From July 6, 2004, to January 15, 2005, Diaz was assigned to Joint Task Force Guantanamo Bay as a deputy staff judge advocate. At that point, most of the Guantanamo detainees had been held there for two years or more.
Following the Supreme Court’s decision in Rasul v. Bush in 2004, holding that federal courts had habeas jurisdiction over the detainees, the district court in Washington, D.C., held that detainee habeas petitioners had a right to legal counsel.
In December 2004, Barbara Olshansky, an attorney at the Center for Constitutional Rights in New York City, wrote letters to the secretaries of Defense and the Navy, and senior Department of Justice attorneys, seeking names and information about detainees held at Guantanamo. Diaz was the point of contact for that correspondence. In January 2005, the judge advocates at Guantanamo, after consulting with leadership in the Department of Defense and Southern Command, decided to reject Olshansky’s request, according to the court.
Diaz, in a 2007 New York Times article, said he grew frustrated with the Bush administration’s refusal to comply with the Rasul ruling. Names of the detainees were not being given out and neither was any information about their condition.
One night in January 2005, he logged onto a secure internal database, bringing up detainees’ names a hundred at a time. He kept the 551 names locked in his office safe for two weeks, and then on Jan. 14, he cut them into more than 20 pieces of paper and mailed them to Olshansky.
Olshansky and her colleagues at CCR discussed the card and its contents, holding them for approximately two weeks, during which time the card and its contents were kept locked in a file cabinet drawer, said the court. Recognizing that the document probably should not have been sent to her, she also consulted an attorney. She then contacted the judge handling the detainee habeas case which she had recently filed on behalf of her organization. A court security officer retrieved the documents and accompanying Valentine’s Day card.
In the opinion, first reported by CAAFlog, a military law blog, Judge James Baker, writing for the court, found harmless error in the military judge’s decision to exclude evidence of Diaz’s motives to counter the charge of conduct unbecoming an officer.
“Appellant’s state of mind was relevant to the circumstances under which he acted,” wrote Baker. “At trial, Appellant was barred from showing that he acted in a manner he believed was compelled by the Supreme Court’s decision in Rasul, and thus, in his view, was honorable. On the other hand, the better argument is that the military judge’s error did not have a substantial influence on the trial, and that Appellant could not have avoided a conviction under Article 133, UCMJ, even if some or all of Appellant’s proffered evidence had been admitted.
“Appellant copied classified material and sent it to a person not authorized to receive it. The clandestine method of disclosure –- by sending it through the postal system cut up in a Valentine’s Day card –- suggests that Appellant knew at the time his actions warranted concealment.”
The court also rejected Diaz’s arguments that the lower courts misread the intent and national security elements of the Espionage Act.
Kathleen Purcell of Remcho, Johansen & Purcell of San Leandro, Calif., argued on behalf of Diaz. Navy Lt. Brian Burgtorf Jr. represented the government.