The lawyers representing a detainee at Guantánamo Bay are not allowed to review the highest-level secret information in the government's hands, even if the material could be relevant to the prisoner's fight for freedom, a judge in Washington said today. The government, the judge said, can rely on that very same information.
U.S. District Judge Rosemary Collyer said she reviewed the "Top Secret" source-related information in chambers to ensure that, where possible, documents classified at a lower level were provided to the lawyers for the detainee, an Afghan man named Wali Mohammed Morafa. The detainee's attorneys first filed a petition challenging his detention in 2005 in Washington's federal trial court.
"Some source information contained in Top Secret documents reviewed in camera and ex parte could be relevant and material to Mr. Morafa’s case," Collyer wrote. The U.S. Justice Department, however, "argued persuasively that source and method information are particularly critical within the intelligence community and the nation's security and, thus, cannot be revealed to Mr. Morafa's counsel."
Collyer said the "ultimate question" is whether the prisoner's ability to see the top secret information is necessary for the judge's "own meaningful review of the evidence." The court, Collyer said, "concludes that it is not."
Morafa's attorneys have been cleared to review information at the "secret" level, one step above classified but not as sensitive as "top secret." A lawyer for Morafa, Alexander Breckinridge, a Dechert litigation associate in Washington, declined to comment on Collyer's ruling.
The lawyers for Morafa said in court papers that they "must know the material source-identifying information at issue to be able to use it to demonstrate error and to rebut the government's case." Breckinridge, in the papers, criticized the "government's broader suggestion that its reliance on secret evidence to justify lifelong imprisonment is permissible so long as an impartial judge" presides over the case.
Morafa's attorneys, Collyers said, presented a choice to the government: "either disclose the relevant and material source information to them or refrain from reliance on any document that stems from such a source."
Collyer said "the value of this specific evidence is, at best, marginal." The judge said the underlying information a source has provided "has been revealed to Mr. Morafa's counsel, by way of a properly redacted document or a proper adequate substitute."
Collyer said her ruling "will have a minor detrimental impact on Mr. Morafa's ability to contest the basis for his detention." The judge concluded that Morafa's attorneys can adequately present his side.
"Disclosure of source-identifying information might allow Mr. Morafa’s counsel to sharpen any attack on a source’s credibility but, to be frank, the nature of the classified information already revealed immediately lends itself to such an attack," Collyer said.