Updated 4:04 p.m.
The Justice Department was unable Friday to meet a court-imposed deadline to provide guidance to lawyers involved in Guantánamo Bay detainee litigation over how the attorneys can access and use publicly available WikiLeaks documents.
DOJ lawyers asked Judge Paul Friedman of Washington federal district court to grant the department a one-week extension, until June 10, to finalize guidance for lawyers handling Guantánamo habeas cases.
Friedman this afternoon granted the department’s request (PDF) for more time, the third such motion filed in recent weeks.
David Remes, who leads the human rights law firm Appeal for Justice, is demanding access to and use of WikiLeaks documents. He said in court papers (PDF) filed today that Friedman should reject the government’s request. The department, Remes said, has no incentive to finalize its guidance if DOJ continues to receive extensions.
“The government’s rationale for its extension request has no logical limit,” Remes said. “Each time the government has requested an extension, it has offered the same rationale: that it is still working on its guidance for counsel’s handling of documents that every member of the public except counsel can examine and discuss publicly.”
Remes said WikiLeaks documents depict his client, Saifullah Paracha, “in the most sinister light.” Fairness, Remes said, “mandates that Mr. Paracha be allowed to respond in public to the government’s accusations in the publicly known documents.”
In April, Remes asked Friedman to issue an order giving him access to WikiLeaks documents, which include hundreds of pages of classified government files on current and former Guantánamo Bay prisoners. Remes filed the request (PDF) on an emergency basis.
“Any member of the general public can view these files, download them, print them, circulate them, and comment on them,” Remes said. Remes said he “fears that he will face potential sanctions, legal or otherwise, if he does exactly the same things without express government permission.”
Remes holds a “secret” security clearance. He said he is concerned the government will revoke his clearance—and possibly prosecute him—if he views the Wikileaks documents. Losing that clearance, Remes said, would render him unable to represent current or future detainee clients.
The guidance, DOJ lawyers said, will address how habeas counsel may access WikiLeaks material, how lawyers can use the information in the Guantánamo habeas litigation and the extent to which counsel may publicly discuss the documents.
“Because the guidance must strike a delicate balance between the interests of all petitioners’ counsel in securing access to the WikiLeaks materials and the United States Government’s interest in the protection and proper handling of classified information, it remains under consideration at senior levels of the United States Government and could not be finalized by today’s deadline,” Justice lawyer Stephen Elliott of the Civil Division’s federal programs branch said in a court document.