Lawyers involved in Guantánamo Bay detainee litigation are permitted to use their own computers to view WikiLeaks documents but cannot save, print and share the information, the Justice Department said in guidance to the attorneys.
The guidance DOJ issued late Friday said the government will not confirm or deny that any individual document about a detainee is an "official government report." The memo to lawyers said they cannot use any government computer to view the WikiLeaks documents.
Stephen Elliot of the Civil Division’s federal programs branch said in the guidance, provided Friday to lawyers in pending detainee cases in Washington federal district court, that attorneys for detainees are allowed to cite to WikiLeaks documents.
“[Y]ou must identify the source of the information as potentially classified information found on WikiLeaks or another website, to make clear that you are citing to such material and not an official government report,” the DOJ guidance (PDF) said.
The department gave specific instructions to attorneys who want to file discovery requests based on WikiLeaks documents. A lawyer for a detainee, for instance, must send an unclassified letter or e-mail with the subject line “Request for Discovery of Documents Referenced in WikiLeaks Information.” The request cannot discuss the contents of the requested documents.
Detainee lawyers can pursue a more detailed discovery request—for instance, one that discusses the contents of documents—using a different security procedure, according to the guidance memo.
The Justice Department said its restrictions “apply to potentially classified information on WikiLeaks or other websites” and not to “secondary reporting” such as news articles, blogs and broadcast transcripts.
DOJ said Guantánamo lawyers are allowed to make public statements on classified information that has entered the public domain.
Later this week, the Justice Department is expected to file a formal response to one lawyers' effort to access and use WikiLeaks documents in a pending habeas case in U.S. District Court for the District of Columbia.
The lawyer, David Remes, who heads the human rights law firm Appeal for Justice, questioned today why it has taken the government this long to provide guidance to lawyers in detainee cases over access and use to WikiLeaks documents. Remes recently demanded access to publicly available WikiLeaks documents.
“The government's policies collided with common sense,” Remes said. “From the beginning, the government has used its classification power to prevent us from answering its charges. This is just an extreme example. None of this information should have been classified in the first place.”
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