The Justice Department said this week a federal judge in Washington should prohibit a lawyer in a Guantanamo Bay detainee case from downloading and copying WikiLeaks documents to minimize the risk of compromising national security interests.
DOJ lawyers late Wednesday said in court papers in Washington federal district court that the lawyer, David Remes, is allowed to view WikiLeaks document on a personal, non-government computer. No saving. No copying. No dissemination.
Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.
In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.
“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.
The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.
“Thus the government must refrain from confirming whether any particular reports disseminated by WikiLeaks are genuine detainee assessments or not, to avoid the risk of even greater harm to national security than may have already been caused by WikiLeaks’ disclosures,” according to DOJ.
Remes today said the government’s response to his demand to view, save and print WikiLeaks documents does not explain how any of the alleged harms might follow from the prohibited activities but not the activity that is allowed. The government’s concern, he said, is speculative.
“The government tries to distinguish between what is allowed and what is prohibited, but its distinctions are strained and unconvincing because the various activities all involve exactly the same information,” Remes said. “What's more, the government's warnings of harm are entirely speculative, full of ‘coulds’ and ‘mights.’”
Remes, legal director for Appeal for Justice, a human rights and civil liberties litigation firm, will have an opportunity to respond in court to the government's motion.