The full U.S. Court of Appeals for the D.C. Circuit this week declined to adopt a court-wide policy that would give the U.S. Justice Department greater flexibility in incorporating classified opinions in other pending Guantánamo Bay detainee cases.
The nine active judges of the appeals court, voting en banc, unanimously rejected the U.S. Justice Department’s call in June for a general practice that would lessen restrictions on the government’s ability to reference classified appellate opinions and judgments. The appeals court generally produces a redacted, public version of classified opinions.
The full court Wednesday said in a one-page administrative order [.pdf] that three-judge panels have discretion over whether to allow attorneys in a detainee case to reference a classified opinion in another case. The court also refused to adopt a policy regarding classification review and preparation of redacted opinions.
The D.C. Circuit’s order came in a dispute over the summer in a detainee case in which a three-judge panel ruled for the government. Judges Douglas Ginsburg, David Tatel and Brett Kavanaugh upheld a trial judge’s ruling denying a prisoner’s detention challenge. The appeals court panel found the detainee, Sufyian Barhoumi, was a “part of” a force associated with al-Qaeda.
The appeals court published a redacted opinion in late June. But before the publication of the ruling, Justice Department lawyers wanted the court to allow the government to cite the opinion in preparation of writing and circulating a brief in another pending case in the D.C. Circuit.
In court papers filed in June, DOJ lawyers, including the Civil Division’s Robert Loeb, said the government is prohibited from referencing the court’s classified decision in Barhoumi. Justice attorneys said an order in the appellate court file blocked the government from disclosing the opinion in any way.
"This order is far more restrictive than the district court protective order that applies to this and the other Guantanamo habeas cases," the DOJ court papers [.pdf] said.
Loeb said there is no ban on circulating classified opinions in the district court. DOJ lawyers point to a protective order issued in September 2008 that “specifies the parties” obligations and restrictions in handling and storing classified material.”
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