Updated 5:20 p.m. At 5:10 p.m., the D.C. Circuit announced, on its own motion, that the court is removing the case from its May 13 argument calendar. The court did not indicate whether it would hear argument on another date.
A federal appeals court in Washington tomorrow will hold a closed-door hearing to consider blacking out material from a court transcript of an oral argument that took place in open session. The Justice Department made the request.
Last month, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard oral argument in the underlying case, Kiyemba v. Obama, which had been sent back by the U.S. Supreme Court. The high court in March vacated the appellate court’s ruling last year that found federal district judges cannot order the release of a Guantanamo Bay detainee into the United States.
With the case back in the D.C. Circuit, Judges Karen LeCraft Henderson and Judith Rogers, sitting with Senior Judge A. Raymond Randolph, heard oral argument April 22. The court allowed the public to attend the first portion of the argument, but the judges closed the courtroom for a second portion, a move that generally means the court wants to explore classified information in the record.
P. Sabin Willett, a partner in Bingham McCutchen’s Boston office, argued for the detainees. Sharon Swingle of the Justice Department’s Civil Division appellate staff represented the government. Willett and Swingle were not immediately reached for comment today.
Five days after the case was argued, the Justice Department filed under seal a motion asking the court to seal the transcript of oral argument. The appeals court granted the request, but did not publicly file an explanation for its decision.
Then, on May 6, the Justice Department filed under seal a more limited motion to seal only portions of the transcript from the public portion of the April 22 argument. The panel judges set oral argument on that request for May 13.
There is nothing in the public record that explains why the Justice Department wants to seal information that was talked about in open court or that identifies, even generally, what information the department wants sealed. One highly sensitive issue in the case has been the identity of countries willing to accept the relocation of the detainees.
The appeals court this afternoon granted a request to allow Sidley Austin partner Carter Phillips to attend oral argument Thursday. Bingham McCutchen partner Susan Baker Manning, who is expected to argue tomorrow on behalf of the detainees, said in court papers this week that the firm had retained Phillips “in connection with this matter.”
Manning’s court filing also said the Justice Department’s request to seal portions of the public argument transcript is unopposed. Manning was not immediately reached for comment about that request.
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