Djamel Ameziane v. Barack Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2009 Decided January 8, 2010
Reissued October 6, 2010
Reissued October 5, 2012
No. 09-5236
DJAMEL AMEZIANE, DETAINEE, GUANTANAMO BAY NAVAL
STATION, GUANTANAMO BAY CUBA,
APPELLEE
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00392-UNA)
August E. Flentje, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Douglas N. Letter and Robert M. Loeb, Attorneys.
J. Wells Dixon argued the cause for appellee. With him
on the brief were Shayana D. Kadidal and Pardiss Kebriaei.
Before: GINSBURG, BROWN and GRIFFITH, Circuit
Judges.
2
Opinion for the court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: This case presents another
variation on the detainee theme, raising questions about what
information concerning a detainee’s status can be protected
from public disclosure when the detainee is anxious to reveal
it. These questions arise because the government, having
decided that Djamel Ameziane may be released from
detention at Guantanamo Bay, has sought to designate the
decision of the Guantanamo Review Task Force as
“protected” information under the governing protective order.
The government wants to send Ameziane back to his native
country, Algeria. Ameziane does not want to go. He wants
to use his Task Force transfer decision to aid him in
petitioning venues he deems more attractive, like Canada or
France, for resettlement. The government—fearing that
dozens of detainees going into business for themselves,
utilizing Task Force transfer decisions to make their own best
deals, would interfere with sensitive diplomatic efforts to
relocate large numbers of detainees—moved to protect all
Task Force transfer decisions from premature public
disclosure. The district court sided with Ameziane and the
government appealed. We reverse.
I
Ameziane, an Algerian citizen, has been held at the U.S.
Naval Base at Guantanamo Bay, Cuba since 2002. In 2005,
he filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. This action was subject to a protective order
governing common procedural issues in all Guantanamo
habeas cases. See In re Guantanamo Bay Detainee Litig., 577
F. Supp. 2d 143 (D.D.C. 2008) (Protective Order). Under the
Protective Order, “protected” information may not be
disclosed to anyone other than the petitioner’s counsel and the
3
court, unless the government authorizes wider disclosure. Id.
at 151 (¶ 35). To designate information as protected, the
government must attempt to reach an agreement with the
petitioner’s counsel, and if that fails, file a motion with the
court. Id. (¶ 34).
On January 22, 2009, the President issued an Executive
Order directing the closure of the Guantanamo detention
facility “as soon as practicable, and no later than 1 year from
the date of this order,” and requiring “[t]he Secretary of State
[to] expeditiously pursue and direct such negotiations and
diplomatic efforts with foreign governments as are necessary
and appropriate to implement this order.” Exec. Order No.
13,492, 74 Fed. Reg. 4897, 4898–99 (Jan. 22, 2009). The
Executive Order also established the Guantanamo Review
Task Force (Task Force) and mandated immediate review of
all detainees to “determine, on a rolling basis and as promptly
as possible . . . whether it is possible to transfer or release the
individuals consistent with the national security and foreign
policy interests of the United States.” Id. at 4899.
Although Ameziane had twice been deemed ineligible for
release, on May 8, 2009, the Task Force issued a decision
approving him for transfer. On June 15, the government filed
a coordinated motion in the subset of Guantanamo habeas
cases involving petitioners who had been issued transfer
decisions, seeking to designate those decisions as “protected”
information. In support of the motion, the government
submitted a declaration by Ambassador Daniel Fried, the
Special Envoy for the Closure of the Guantanamo Bay
Detention Facility. Ambassador Fried explained that if these
petitioners, in an effort to be resettled in European countries
of their choice, all “approach the same small group of
governments at the same time, particularly if they relay
information about formal U.S. government decisions resulting
4
from review by the . . . Task Force, it could confuse,
undermine, or jeopardize our diplomatic efforts with those
countries and could put at risk our ability to move as many
[detainees] to safe and responsible locations as might
otherwise be the case.” Fried Decl. ¶ 5.
At a hearing on June 30, the district court denied the
government’s motion to protect Ameziane’s Task Force
transfer decision. The court concluded the government had
failed to make a “particularized showing” because the Fried
Declaration had “nothing . . . to do with this case in
particular,” and protested that allowing Ameziane to disclose
“this one piece of information” to foreign governments would
not “interfere in anything.” Transcript of Motion Hearing at
29, Ameziane v. Obama, No. 05-cv-392 (D.D.C. June 30,
2009) (June 30 Tr.). The court accused the government of
“stand[ing] in the way of any possible, possible hope of
something better for [Ameziane]” by seeking to repatriate him
to Algeria rather than allowing him to use his Task Force
transfer decision to advocate for resettlement in Canada or
France. Id. at 30. The court issued a written order including
a one-week stay. Order, Ameziane v. Obama, No. 05-cv-392
(D.D.C. June 30, 2009) (June 30 Order).
On July 7, the government sought to extend the stay for
an additional week; the district court rejected the request, see
Transcript of Motion Hearing at 28–29, Ameziane v. Obama,
No. 05-cv-392 (D.D.C. July 7, 2009); and the government
filed an interlocutory appeal and moved this court for an
emergency stay of the district court’s order.
The district court issued a written opinion explaining the
refusal to extend its stay. Mem. Op. & Order, Ameziane v.
Obama, No. 05-cv-392 (D.D.C July 8, 2009) (July 8 Op.).
The court stated “[t]he government’s rationale for protecting
5
[Ameziane’s] clearance status [was] riddled with
contradictions.” Id. at 5. It disregarded the Fried Declaration
because it “provide[d] no specificity as to why Ameziane’s
cleared status must be protected or why his counsel should be
prohibited from using the information to advocate for his
resettlement to other countries.” Id. at 6. The court was not
“convinced” by the government’s “speculative and
conclusory” national security concerns. Id. at 7. “Most
importantly,” the court determined, “the record demonstrates
that protecting [Ameziane’s] clearance status would serve
little purpose” because “both the Red Cross and [his] brother
in Canada are already aware that [he] has been cleared for
transfer.” Id.On July 16, we granted a stay pending appeal.
II
We first consider whether we lack subject-matter
jurisdiction because the dispute is moot or, alternatively,
because the district court’s order was not a final decision from
which the government could immediately appeal.
A
Ameziane argues this appeal is moot because the Red
Cross and his brother in Canada already know he has been
cleared for transfer. “‘Federal courts lack jurisdiction to
decide moot cases because their constitutional authority
extends only to actual cases or controversies.’” Larsen v.
U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quoting Iron
Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)). “[A]
case is moot when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969). However,
6
a case is not moot unless it is “‘impossible for the court to
grant any effectual relief whatever.’” Cody v. Cox, 509 F.3d
606, 608 (D.C. Cir. 2007) (quoting Church of Scientology of
Cal. v. United States, 506 U.S. 9, 12 (1992) (internal
quotation marks omitted)).
Although the Red Cross and Ameziane’s brother may
claim to know that Ameziane has been cleared for transfer,
the government has not officially acknowledged his cleared
status. “[I]n the arena of . . . foreign relations there can be a
critical difference between official and unofficial
disclosures.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.
1990); see also Afshar v. Dep’t of State, 702 F.2d 1125, 1130
(D.C. Cir. 1983) (“[E]ven if a fact . . . is the subject of
widespread media and public speculation, its official
acknowledgment by an authoritative source might well be
new information that could cause damage to the national
security.”). Presumably, nothing prevents the Red Cross or
Ameziane’s brother—or any other third party not bound by
the Protective Order—from telling foreign governments that
Ameziane has been cleared for transfer by the U.S.
government. However, in the absence of any official
acknowledgement, these foreign governments would be left
guessing as to whether such information is true. See Military
Audit Project v. Casey, 656 F.2d 724, 743–45 (D.C. Cir.
1981). Whereas third-party hearsay is likely to be dismissed
as mere rumor or self-serving speculation, foreign
governments are substantially more likely to rely on an
official statement by the U.S. government.
Thus, this appeal is not moot if the district court’s order
would result in an official acknowledgement of Ameziane’s
cleared status. It would. The district court ordered, first,
“that petitioner’s motion to unseal” the “government’s
approval of petitioner[] for transfer and all related or
7
derivative documents” would be granted; second, “that the
government’s motion to designate petitioner’s clearance for
transfer . . . as ‘protected’ information” would be denied; and
third, that “petitioner and his counsel may publicly disclose
that he has been approved for transfer from Guantanamo by
the . . . Task Force.” June 30 Order at 1–2.
As an initial matter, in this court, Ameziane has decided
not to defend much of the district court’s order: “[Ameziane]
does not seek to disclose the District Court pleadings or
transcripts regarding this issue, or the parties’ appellate briefs,
or any information regarding the government’s attempts to
repatriate him to Algeria. . . . [A]ll that is at issue in this
appeal, is whether Ameziane ‘may publicly disclose that he
has been approved for transfer from Guantanamo by the . . .
Task Force.’” Appellee’s Br. 17 (quoting June 30 Order at 2).
Accordingly, since both parties agree “the District Court
pleadings [and] transcripts regarding this issue,” “the parties’
appellate briefs,” and “any information regarding the
government’s attempts to repatriate him to Algeria” should be
protected, id., the district court’s order is reversed to the
extent it unsealed and declined to protect such material.
There remains one key document that, if unsealed, would
clearly constitute an official acknowledgement of Ameziane’s
cleared status: the district court order itself. However, there is
some ambiguity whether Ameziane seeks to unseal this order.
He quotes from the order in arguing his entitlement to
“‘publicly disclose that he has been approved for transfer,’”
Appellee’s Br. 17 (quoting June 30 Order at 2), thus
suggesting Ameziane’s counsel intends to point to the order
itself in negotiations with foreign governments, perhaps to
corroborate his claim that Ameziane has been cleared for
transfer.
8
Yet, at oral argument, Ameziane’s counsel stated he was
“not seeking the unsealing of records.” Transcript of Oral
Argument at 15:13–16. It is not clear whether this reference
to “records” included the district court order, or whether it
referred only to the documents listed in Ameziane’s brief and
discussed above. But even assuming the district court order
will remain sealed, this appeal is not moot. Counsel stated
unambiguously that he sought “to be able to say that Mr.
Ameziane has been approved for transfer by the Task Force.”
Id. at 15:22–25, 16:1–3. Ameziane’s counsel is an officer of
the court, subject to the serious ethical obligations inherent in
that position. Although foreign governments would be
unlikely to rely on a claim by a third party—or even by
Ameziane himself—that Ameziane has been cleared for
transfer, the same is not true with respect to a similar
representation made by counsel. As an officer of the court,
any statement by counsel that the Task Force has cleared
Ameziane for transfer would be tantamount to, and a
sufficient substitute for, official acknowledgement by the U.S.
government. Accordingly, this appeal is not moot because we
can grant “effectual relief” by reversing the district court and
thereby preventing official acknowledgement of Ameziane’s
cleared status—either from the order itself, or from
disclosures by counsel that the order permits him to make.
B
Nor do we lack jurisdiction because the district court’s
order was not “final.” Courts of appeals have jurisdiction of
appeals from “all final decisions” of district courts. 28 U.S.C.
§ 1291. Pursuant to the collateral order doctrine, an
interlocutory order qualifies as “final” under § 1291 if it (1)
conclusively determines the disputed question, (2) resolves an
important issue completely separate from the merits of the
action, and (3) is effectively unreviewable on appeal from a
9
final judgment. See Will v. Hallock, 546 U.S. 345, 349
(2006).
These conditions, though “stringent,” see id., are satisfied
in this case. As Ameziane concedes, the first requirement is
satisfied because the district court’s order conclusively
determined that his Task Force transfer decision would not be
protected under the Protective Order. Second, this issue is
entirely separate from the merits of Ameziane’s habeas
action. The public disclosure of Ameziane’s Task Force
transfer decision has no relevance to the underlying question
on the merits, i.e., whether he has been lawfully detained.
And given the foreign relations and national security concerns
raised in the Fried Declaration, we have no difficulty finding
this issue sufficiently “important” to warrant immediate
appellate review. See Al Odah v. United States, 559 F.3d 539,
543–44 (D.C. Cir. 2009) (holding that order mandating
disclosure of classified information to habeas petitioners’
counsel was “an important issue entirely separate from the
merits of this case”). Finally, the district court’s order would
be effectively unreviewable on appeal from a final judgment
because once the government’s official acknowledgement of
Ameziane’s cleared status is revealed publicly, the disclosure
cannot be undone. See id. at 544. Thus, we have subject-
matter jurisdiction.
III
While we review a district court’s decision to seal or
unseal documents, or to issue or refuse to issue a protective
order, for abuse of discretion, we review de novo any errors
of law upon which the court relied in exercising its discretion.
See, e.g., United States v. Mejia, 448 F.3d 436, 456–57 (D.C.
Cir. 2006) (reviewing issuance of protective order de novo
rather than for abuse of discretion because court applied
10
incorrect legal standard); United States v. El-Sayegh, 131
F.3d 158, 160 (D.C. Cir. 1997) (reviewing decision to unseal
guilty plea de novo rather than for abuse of discretion because
court’s decision was premised on legal error); see also Koon
v. United States, 518 U.S. 81, 100 (1996) (“A district court by
definition abuses its discretion when it makes an error of
law.”). Here, the district court’s explanations indicate de
novo review is appropriate.
A
It is “our customary policy” to accord “deference to the
President in matters of foreign affairs.” Jama v. Immigration
and Customs Enforcement, 543 U.S. 335, 348 (2005). And
“consistent with our rule of deference, it is within the role of
the executive to acquire and exercise the expertise of
protecting national security. It is not within the role of the
courts to second-guess executive judgments made in
furtherance of that branch’s proper role.” Bismullah v. Gates,
501 F.3d 178, 187–88 (D.C. Cir. 2007) (internal quotation
marks omitted), vacated on other grounds, Gates v.
Bismullah, 128 S. Ct. 2960 (2008).
But detainee cases are unique. Because of the
independent role carved out for the judiciary, and our
concomitant obligation to balance the needs of the
government against the rights of the detainee, and also to
preserve to the extent feasible the traditional right of public
access to judicial records grounded in the First Amendment,
we exercise greater caution in deciding to defer. See, e.g.,
Boumediene v. Bush, 128 S. Ct. 2229, 2276–77 (2008). In the
context of requests by the government to protect sensitive
information, we have explained the showing the government
must make to trigger judicial deference.
11
In Bismullah v. Gates, we rejected the government’s
assertion of unilateral authority to designate information as
“protected” and held “the Government must give the court a
basis for withholding . . . from public view” nonclassified
information it seeks to protect. 501 F.3d at 188. In Parhat v.
Gates, we explained that a valid “basis for withholding”
would include, at a minimum, a “specific,” “tailored”
rationale for protecting a general category of information, and
a precise designation of each particular item of information
that purportedly “falls within the categor[y] . . . described.”
532 F.3d 834, 853 (D.C. Cir. 2008). In other words, the
government first must demonstrate what kind of information
requires protection and why, and then must show exactly what
information in the case at hand it seeks to protect.
In Parhat, the government failed to satisfy this twofold
showing. The government began by describing two broad
categories—“(1) any names and/or identifying information of
United States Government personnel, and (2) any sensitive
law enforcement information”—and provided a “rationale for
protection [that was] brief” and “relie[d] solely on spare,
generic assertions of the need to protect information in the
two categories.” Id. at 852–53 (internal quotation marks
omitted). For instance, the government merely asserted in
conclusory fashion that disclosing information in the first
category would “heighten[]” the risks to the safety of U.S.
government personnel, and that disclosing information in the
second category would “harm the Government’s ongoing law
enforcement activities related to the global war against al
Qaeda and its supporters.” Id. at 852. These “generic claims”
failed to satisfy the government’s burden of providing “an
explanation tailored to the specific information at issue.” Id.
at 853.
12
Second, the government consigned all government
personnel mentioned in the record to the first category, and
simply marked documents “Law Enforcement Sensitive” or
“LES” to designate the second category. Id. at 852–53. We
found both sets of designations imprecise and overinclusive.
For instance, “some ‘U.S. Government personnel’ . . . [were]
so publicly associated with Guantanamo that protected status
would plainly be unwarranted.” Id. at 853. And we noted
that the term “Law Enforcement Sensitive” was so vague that
“at least seven different federal agencies define[d] it
differently.” Id. Thus, even if the government had provided
sufficient rationales for protecting information in the two
categories, it nonetheless failed to make its designations with
sufficient precision to allow the court to “determine whether
the information it ha[d] designated properly f[ell] within the
categories it ha[d] described.” Id.Here, the district court failed properly to apply Parhat’s
two-part standard. Rather than evaluating the government’s
proposed category and proffered rationale, and then
determining whether Ameziane’s Task Force transfer decision
fell into that category, the court faulted Ambassador Fried for
“provid[ing] no specificity as to why Ameziane’s cleared
status must be protected or why his counsel should be
prohibited from using the information to advocate for his
resettlement in other countries.” July 8 Op. at 6 (emphasis
added). Similarly, in its oral ruling, the court found the
government had failed to make a “particularized showing”
because the Fried Declaration had “nothing . . . to do with this
case in particular.” June 30 Tr. at 29. However, Parhat did
not require the government to provide a rationale for
protection that was so specific as to preclude any generalized
categorization. Rather, Parhat left room for categorized
requests in appropriate circumstances. Of course, the
narrower the category for which the government seeks
13
protection, the more likely the government’s rationale will be
sufficiently tailored. But the district court erred by construing
Parhat to require a specific and distinct rationale addressed to
each detainee’s situation.
There is a sharp contrast between the government’s
showing in this case and its showing in Parhat. Unlike the
two broad categories outlined in Parhat, here the government
requested protection for a single, limited category: Task Force
transfer decisions and all related or derivative documents.
See July 8 Op. at 2. And unlike the “spare, generic
assertions” with which the government justified its request in
Parhat, 532 F.3d at 853, here the government provided a
detailed rationale tailored specifically to the information in
the narrow category.
The Fried Declaration logically explained why failing to
protect Task Force transfer decisions was likely to harm the
government’s foreign relations and national security interests.
To close down Guantanamo, as Executive Order 13,492
commands, the government faces not just the task of deciding
which detainees may be released, but also the formidable
hurdle of determining where to send those who are cleared for
transfer. Fried Decl. ¶¶ 1–4. Because of U.S. policies barring
the transfer of detainees to countries where they face torture,
“there are certain individuals who have been (or will be)
approved for transfer out of U.S. custody but who . . . cannot
be safely and/or responsibly returned to their home
countries.” Id. ¶ 3. At the same time, since our foreign
allies—particularly in Europe, where many detainees wish to
be sent—have limited “capacity to absorb detainees . . ., it is
important to the U.S. goal of closing Guantanamo to be able
to focus diplomatic discussions with those countries on
detainees for whom there is a compelling reason not to return
them to their home countries.” Id. ¶ 5. This goal would be
14
frustrated if “dozens of detainees approach the same small
group of governments at the same time, . . . relay[ing]
information about formal U.S. government decisions resulting
from review by the . . . Task Force.” Id. A “coherent
diplomatic strategy”—a necessity if the government is going
to “move as many [detainees] to safe and responsible
locations” as possible—requires that the government “retain
the prerogative to ‘speak with one voice.’” Id. ¶¶ 4–6. But
permitting persons not authorized to speak on behalf of the
government to “convey[] official U.S. Government
information to a foreign country regarding the transfer status
of a particular petitioner . . . has the potential to create
confusion and mixed messages.” Id. ¶ 6. Because this
detailed rationale was tailored specifically to the narrow
category of information for which the government requested
protection, the government satisfied the first showing required
by Parhat.
The government also satisfied the second part of the
Parhat standard because we face no difficulty “determin[ing]
whether the information [the government] has designated
properly falls within the categor[y] it has described.” Parhat,
532 F.3d at 853. The government designated for protection a
precise item of information—Ameziane’s transfer decision—
that indisputably falls into the narrow category of Task Force
transfer decisions. Indeed, this case fits squarely within the
government’s rationale for protection. Although the
government has determined Ameziane can safely be
repatriated to Algeria, he is seeking to obtain resettlement in
Canada or France, and wishes to utilize his Task Force
transfer decision to aid him in petitioning these foreign
governments. As the Fried Declaration explains, permitting
Ameziane to make such use of the government’s official
information would interfere with the Secretary of State’s
efforts to focus the Canadian and French governments on
15
accepting detainees who, unlike Ameziane, cannot safely be
repatriated to their home countries. Thus, the government
met its burden for protection under Parhat.
B
Because the government satisfied Parhat, the district
court was required to defer to the government’s assessment of
the harm to foreign relations and national security that would
result from officially disclosing Ameziane’s Task Force
transfer decision. As we explained in Fitzgibbon, the failure
to give deference when it is due is error. 911 F.2d at 755.
There, pursuant to a Freedom of Information Act request, the
district court ordered the CIA to disclose information about a
former CIA station location, over the CIA’s objection that
such disclosure would cause harm to national security. Id. at
758–59. We faulted the district court for “essentially
perform[ing] its own calculus as to whether or not harm to the
national security . . . would result from disclosure” of the
information, and held it should have “accord[ed] substantial
weight and deference” to the Executive Branch’s
“determination of possible harm.” Id. at 766. Thus,
“declin[ing] to adopt the abuse-of-discretion review that [the
plaintiff] urge[d] upon us,” we reversed. Id.Here, the district court simply declared:
I don’t understand how [declining to protect
Ameziane’s Task Force transfer decision] will
interfere in anything. . . . I don’t know why in the
world the only thing that the government can see is
Algeria here. . . . But if [Ameziane] is able to do
better than what the government is doing, I say fine.
He has now been there seven years thanks to the
United States government. Why they want to stand
16
in the way of any possible, possible hope of
something better for him baffles me. . . . This
gentleman has the perhaps glimmer of hope that
something could get slightly better and he won’t be
prosecuted again in Canada. Why should we stand in
the way after the way we’ve treated him for these
seven years?
June 30 Tr. at 29–30; see also July 8 Op. at 7 (rejecting as
“speculative and conclusory” government’s “arguments that
the release of [Ameziane’s] clearance status would cause
significant harm to the interests of the government”). It is not
entirely clear why the district court found the Fried
Declaration so baffling. As discussed above, it provided a
detailed and logical explanation of the impact of premature
disclosure on the government’s foreign relations and national
security interests. Parhat did not free courts to substitute
their own policy judgments for those of the executive. The
district court was not entitled to toss the Fried Declaration
aside merely because it disagreed with its premise. Deference
required acknowledging that the State Department, not the
judiciary, is tasked with undertaking the diplomatic
negotiations necessary to close down Guantanamo, and that
the Executive Branch officials bearing this responsibility
possess far greater resources and aptitude than the judiciary
for determining what will aid, and what will undermine, their
mission. The district court’s inability to “understand” how
permitting Ameziane to disclose his Task Force transfer
decision to foreign governments “will interfere in anything,”
June 30 Tr. at 29, did not license the court to “perform[] its
own calculus as to whether or not harm to the national
security . . . would result from [the] disclosure,” Fitzgibbon,
911 F.2d at 766.
17
In particular, the district court erred by elevating
Ameziane’s interest in being resettled in a country of his
choice over the government’s interest in repatriating or
resettling as many detainees as possible as quickly as
practicable in order to close Guantanamo as the President
directed. Such prioritizing was an executive prerogative, and
it was “not within the role of the [district] court[] to second-
guess executive judgments made in furtherance of that
branch’s proper role.” Bismullah, 501 F.3d at 187–88
(internal quotation marks omitted). Crucially, this does not
mean Ameziane never will have the opportunity to share his
Task Force transfer decision with Canada, France, or other
countries he wishes to petition for resettlement. Rather, it
means only that those foreign governments must contact the
U.S. government and obtain the information through official
channels. In this way, Ameziane’s eagerness to be sent to a
country of his choice will not undermine the Executive
Branch’s prerogative to “speak with one voice” in diplomatic
affairs. See Fried Decl. ¶ 6. The failure to accord
“substantial weight and deference,” Fitzgibbon, 911 F.2d at
766, to the government’s assessment of its foreign relations
and national security interests was error.
C
Finally, the district court erred by basing its ruling on an
inappropriate factor. The court held that the “[m]ost
important[]” factor weighing against the government’s
request for protection was that “protecting [Ameziane’s]
clearance status would serve little purpose” because “both the
Red Cross and [his] brother in Canada are already aware that
[he] has been cleared for transfer.” July 8 Op. at 7. The first
problem with the district court’s approach is the incentive it
gives detainees to violate the Protective Order. Why honor
confidentiality restrictions imposed by the court if ignoring
18
them will be rewarded? Moreover, as discussed above, there
is a distinction between third parties claiming to have
knowledge of certain information, and an official
acknowledgement of the truth of that information by the U.S.
government. See Fitzgibbon, 911 F.2d at 765 (observing the
“critical difference between official and unofficial
disclosures” in the “arena of . . . foreign relations”); Afshar,
702 F.2d at 1130 (noting that “official acknowledgment by an
authoritative source” of a fact that “is the subject of
widespread media and public speculation” may “be new
information that could cause damage to the national
security”). For the same reason that a “public record” is
generally admissible as evidence, see FED. R. EVID. 803(8),
while other hearsay is not, see FED. R. EVID. 802, an official
acknowledgment of a fact is far more reliable than a third
party’s statement of the same fact. This is doubly true in the
world of diplomatic relations.
Indeed, any suggestion the government’s official
acknowledgment—either from the district court’s order itself
or from Ameziane’s counsel in his capacity as an officer of
the court—would not produce a material change in
circumstances is belied by Ameziane’s vigorous defense of
the district court’s ruling. It is evident that while the
Canadian and French governments would pay scant attention
to Ameziane’s brother’s claim that Ameziane has been
cleared for transfer, they would be substantially more
interested in hearing this same news from a person or entity
speaking on behalf of the U.S. government. Thus, while it
would have been proper to consider whether the government
already had publicly acknowledged Ameziane’s clearance for
transfer, it was error to rely on third parties’ purported
knowledge of his cleared status.
19
IV
For the foregoing reasons, the government’s motion to
designate Ameziane’s Task Force transfer decision as
“protected” information under the Protective Order should
have been granted. Thus, the order of the district court is
Reversed.