In Re: Guantanamo Bay Detainee Continued Access to Counsel

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
IN RE GUANTANAMO BAY DETAINEE ) Misc. No. 12-mc-398 (RCL)
CONTINUED ACCESS TO COUNSEL )
__________________________________________)
)
SAEED MOHAMMED SALEH HATIM, )
et al., )
Petitioners )
v. ) Civil No. 05-cv-1429 (RCL)
)
BARACK H. OBAMA, et al., )
)
Respondents )
__________________________________________)
)
FADHEL HUSSEIN SALEH HENTIF, )
et al., )
Petitioners )
v. ) Civil No. 06-cv-1766 (RCL)
)
BARACK H. OBAMA, et al., )
)
Respondents )
__________________________________________)
)
ABDURRAHMAN ABDALLAH ALI )
MAHMOUD AL SHUBATI, et al., )
Petitioners )
v. ) Civil No. 07-cv-2338 (RCL)
)
BARACK H. OBAMA, et al., )
)
Respondents )
__________________________________________)
MEMORANDUM OPINION
Before the Court is Jason Leopold’s Motion [48] to Intervene. Mr. Leopold, a reporter,
seeks an order from this Court unsealing the Declaration of Col. John V. Bogdan, June 3, 2013,
ECF No. 42-1 (“Bogdan Declaration” or “Bogdan Decl.”), or in the alternative, an order
1
directing the government to file a redacted version of Col. Bogdan’s declaration. Upon
consideration of Mr. Leopold’s Motion, the government’s opposition and errata [59, 60, 62, and
63], the petitioners’ reply [67], Mr. Leopold’s reply [68], the entire record herein, and the
applicable law, the Court will GRANT Mr. Leopold’s Motion to Intervene and GRANT his
request to unseal the Bogdan declaration.
I. BACKGROUND
The pending motion is a result of an ongoing dispute over counsel access for detainees at
the naval detention facility at Guantanamo Bay. The petitioners, detainees at Guantanamo
detention facility, filed emergency motions to enforce their right of access to legal counsel on
May 22, 2013, alleging that new search and meeting procedures at the facility interfered with
their access to counsel. As part of its opposition to petitioners’ motions, the government filed
under seal a declaration by Col. John V. Bogdan, the commander of the Joint Detention Group
(“JDG”), the group responsible for detention operations within Joint Task Force Guantanamo
(“JTF-GTMO”). This declaration described in detail the new search procedures used by the
JDG. Bogdan Decl. ¶¶ 19–22. The government filed the Bogdan Declaration under seal
pursuant to the protective order issued by Judge Hogan in pending Guantanamo habeas cases.
See In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143 (D.D.C. 2008) (“Protective
Order” or “P.O.”). This Court issued an order and accompanying memorandum opinion granting
in part and denying in part petitioners’ motions for counsel access. In re Guantanamo Bay
Detainee Litig., No. 12-mc-398 (RCL), 2013 WL 3467134 (D.D.C. July 11, 2013). Though the
Court’s opinion quoted Col. Bogdan’s declaration substantially, the Court ruled pursuant to ¶ 34
of the Protective Order that the opinion should not be sealed and would instead be available on
the public record. Id. at *2–4, *20.
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After this Court issued its opinion, Mr. Leopold, a reporter, filed the present motions to
intervene and to unseal the Bogdan declaration. On August 2, 2013, the government filed its
opposition to Mr. Leopold’s motion along with a redacted version of Col. Bogdan’s declaration
available for public release. Resp’ts’ Opp’n to the Mot. of Jason Leopold to Intervene and to
Unseal Certain Evidence, ECF No. 59. Initially, the government opposed unsealing all or parts
of paragraphs 5, 6, 14, 16, and 19–22 of the Bogdan Declaration. Ex. 1, August 2, 2013, ECF
No. 59-1. Subsequently, the government discovered it had publically filed a version of the
Bogdan’s Declaration with the Court of Appeals for the District of Columbia Circuit that failed
to redact paragraphs 5, 6, 14, or 16. Errata 1, August 9, 2013, ECF No. 62. Consequently, the
government revised its arguments and now only opposes unsealing the few redactions that
remain in paragraphs 19–22 of the Bogdan Declaration. Ex. A-1, August 9, 2013, ECF No. 62-1.
“On timely motion, the court may permit anyone to intervene who . . . has a claim or
defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P.
24(b)(1)(B). In this Circuit, third parties may “intervene under Rule 24(b) for the limited
purpose of seeking access to materials that have been shielded from public view either by seal or
by a protective order.” E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir.
1998). Thus, the Court will GRANT Mr. Leopold’s motion to intervene and will consider his
motion to unseal Col. Bogdan’s declaration.
II. LEGAL STANDARD
Under the Protective Order, the government may ask the Court to deem protected any
unclassified information by sharing that information with counsel for the petitioners, attempting
to reach agreement with the petitioners as to whether the information should be protected, and
making the appropriate motion to the Court. P.O. ¶ 34. Petitioners must treat any information
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the government shares with them in this manner “as protected unless and until the Court rules
that the information should not be designated as protected.” Id. The ultimate authority to
determine whether information should be protected, however, rests with the Court: “It is the
court, not the government, that has discretion to seal a judicial record . . . which the public
ordinarily has the right to inspect and copy.” Bismullah v. Gates, 501 F.3d 178, 188 (D.C. Cir.
2007) (citations omitted), vacated on other grounds, 554 U.S. 913 (2008). Accordingly, the
District of Columbia Circuit in Bismullah rejected the government’s “propos[al] unilaterally to
determine whether information is ‘protected’” and held that, “insofar as a party seeks to file with
the court nonclassified information the Government believes should be ‘protected,’ the
Government must give the court a basis for withholding it from public view.” Id.In Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), the government sought to deem
protected two broad categories of information: “(1) ‘any names and/or identifying information
of United States Government personnel,’ and (2) ‘any sensitive law enforcement information.’”
Id. at 852. To justify protecting the identifying information of government personnel, the
government stated that “‘[t]he risks to the safety of those personnel[, particularly those who often
deploy to locations abroad,] would be heightened if their involvement in the detention of enemy
combatants at Guantanamo were made public.’” Id. (alterations in original). With respect to
sensitive law enforcement information, the government argued that “public disclosure ‘could
harm the Government’s ongoing law enforcement activities related to the global war against al
Qaeda and its supporters.’” Id. The court rejected the government’s motion to deem the two
categories of information protected because the government “relie[d] solely on spare, generic
assertions of the need to protect information in the two categories it identifie[d].” Id. at 852–53.
The court further noted that granting protection on the basis of such a thin justification would
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enable the government to deem information protected unilaterally in the manner prohibited by
Bismullah: “Without an explanation tailored to the specific information at issue, we are left with
no way to determine whether it warrants protection—other than to accept the government’s own
designation.” Id. at 853. Moreover, the Court of Appeals faulted the government for requesting
protection for imprecisely defined categories of information, like “Law Enforcement Sensitive”
information, that leave the court unable to “determine whether the information [the government]
has designated [for protection] properly falls within the categories it has described.” Id.
In Ameziane v. Obama, 699 F.3d 488 (D.C. Cir. 2012)1, the Court of Appeals addressed
the standard for the protection of information by the government when a detainee wanted to
reveal the information. Ameziane, an Algerian citizen, had been cleared for release from
Guantanamo and transfer to Algeria by the Guantanamo Review Task Force. Id. at 490–91.
Since Ameziane did not wish to return to Algeria, however, he sought to use Task Force’s
transfer decision to petition Canada and France to accept him for resettlement. Id. The
government moved to designate the transfer decisions made by the Task Force as protected
information. Id. at 491. To support its motion, the government offered a declaration by
Ambassador Daniel Fried,2 the Special Envoy for the Closure of the Guantanamo Bay Detention
Facility. In support of the government’s motion, Ambassador Fried
1
Because the government wished to protect the underlying information at issue in Ameziane, the D.C. Circuit
originally issued its opinion in Ameziane in redacted form in 2010. 620 F.3d 1 (D.C. Cir. 2010). In 2012, the
government lifted the protected status on the information. Resp’ts’ Notice Lifting Protected Information, In re
Guantanamo Bay Detainee Litig., No. 08-mc-442 (TFH) (D.D.C. Sept. 21, 2012), ECF No. 1991. Subsequently, the
D.C. Circuit reissued its opinion in Ameziane in unredacted form. 699 F.3d at 488. For purposes of clarity, this
Court cites the unredacted version of the D.C. Circuit’s opinion in Ameziane.
2
The government subsequently lifted the protected status on transfer decisions of the Guantanamo Review Task
Force and filed an unredacted copy of Ambassador Fried’s declaration. See Resp’ts’ Notice Lifting Protected
Information, In re Guantanamo Bay Detainee Litig., No. 08-mc-442 (TFH) (D.D.C. Sept. 21, 2012), ECF No. 1991.
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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 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.”
Id. (alteration in original).
The district court denied the government’s motion. Id. The district court complained that
the government’s argument was not particularized to Ameziane and that Ambassador Fried’s
declaration “‘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. The district court also noted that it found the government’s national
security concerns “speculative” and thought protecting Ameziane’s cleared status was
unnecessary as the Red Cross and Ameziane’s brother both already knew about his cleared
status. Id. at 491–92. On appeal, however, the District of Columbia Circuit reversed and
allowed the government to designate the Task Force transfer decisions as protected information.
The Court of Appeals held that “a valid ‘basis for withholding’ [information as protected]
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.’” Id. at 494–95 (second alteration in original) (quoting
Parhat, 532 F.3d at 853). “In other words, the government must first 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.” Id. at 495 (emphasis in original). Moreover, the Court of
Appeals clarified that
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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 protection, the more likely
the government’s rationale will be sufficiently tailored.
Id.
Applying the standard from Parhat, which the Court of Appeals interpreted as a two-step
test, the Court of Appeals found that the government had met its burden to protect the Task Force
transfer decisions. Under the first step of the Parhat test, the Court found (1) that the
government had designated a narrow category of information requiring protection—the transfer
decisions and any related documents; (2) that the government had provided a “detailed rationale
tailored specifically to the information in the narrow category”; and (3) that the government had
“logically explained why failing to protect Task Force transfer decisions was likely to harm the
government’s foreign relations and national security interests.” Id. at 496. With respect to the
second step under the Parhat test, the Court of Appeals concluded that
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 accepting detainees who, unlike Ameziane, cannot safely
be repatriated to their home countries. Thus, the government met its burden for
protection under Parhat.
Id. at 496–97.
The Court of Appeals also admonished the district court for failing to defer to the
government’s assessment of the harm that would result from disclosure of the Task Force
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transfer decisions. The Court of Appeals noted that, “[b]ecause 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” the protected
information. Id. at 497. Thus, the district court could not “perform[] its own calculus” to
conclude that Ameziane’s interest in using the information outweighed the government’s interest
in protection. See id. (quoting Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990)).
Most recently, this Court addressed the government’s request to protect certain
information in In re Guantanamo Bay Detainee Litigation, 787 F. Supp. 2d 5 (2011) (Hogan, J.)
(redacted). There, the government asked the Court to rule that six categories of information be
designated as protected information under the Protective Order: (1) names of certain government
employees or family members of detainees; (2) information revealing the “existence, focus, or
scope of law enforcement or intelligence operations”; (3) information regarding locations
relevant to counter-terrorism, intelligence gathering, military, or law enforcement operations not
previously acknowledged by the government; (4) information showing or related to knowledge
of communications by known or suspected terrorists, including phone numbers, e-mail addresses,
and websites; (5) “[i]nformation regarding the use, effectiveness, or . . . implementation of
certain [approved] interrogation approaches or techniques”; and (6) certain administrative data
included in the factual returns filed in pending cases, including “operational ‘nicknames,’ code
words, dates of acquisition, including dates of interrogations, and FBI case names and file
numbers.” Id. at 8. For each of these six categories, Judge Hogan found that the categories
were narrowly tailored and that the government offered detailed and logical explanations as
rationales for why the category should be protected. See id. at 15–25 (analyzing the
government’s six proposed categories of information under the first step of the Parhat test).
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Thus, Judge Hogan concluded that each of the proposed categories passed the first step under the
Parhat analysis.
While Judge Hogan approved the six proposed categories for protection under Parhat’s
first step, he found that Parhat’s second step required a case-by-case approach. In analyzing
Parhat’s second step, Judge Hogan noted that “[t]he D.C. Circuit’s analysis in Ameziane
suggests that determining whether the information [the government seeks to protect] falls within
the protected category requires evaluating whether the rationale for protection asserted [under
Parhat’s] first step is implicated by the specific information the government has designated for
protection in the second step.” Id. at 13 (citing Ameziane, 620 F.3d at 7). In other words, the
district court must determine, as the Court of Appeals did in Ameziane, whether the information
the government seeks to protect “fits squarely within the government’s rationale for protection.”
Ameziane, 699 F.3d at 496. Thus, Judge Hogan concluded that the application of Parhat’s
second step “require[d] a case-specific or document-specific determination about whether
information designated for protection properly falls in one of the six categories.” In re
Guantanamo Bay Detainee Litig., 787 F. Supp. 2d at 26. Accordingly, Judge Hogan only
approved the government’s proposed categories under Parhat’s first step and left the ultimate
determination as to whether any specific information should be protected to the merits judges in
individual habeas cases. Id.In summary, Bismullah, Parhat, and Ameziane control when the government may
designate nonclassified but sensitive information as protected. The government may not
unilaterally decide what information will be protected. Instead, under Parhat’s first step, the
government must justify protecting information by (1) designating a category of information for
protection and (2) explaining in a tailored, detailed, and logical fashion why that category
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requires protection. The government may not justify protection on the basis of “spare” or
“generic” rationales, though the rationale need not be “so specific that it precludes any
generalized categorization.” Id. at 13. As a general matter, narrowly designated categories are
more likely to have sufficiently tailored rationales. Id. Under Parhat’s second step, the
government must show that the specific information to be protected “fits squarely” within the
designated category. Finally, if the government establishes that information is subject to
protection under Parhat, the Court must defer to the government’s assessment of the harm to
national security from disclosure of the information.
III. ANALYSIS
A. The Government Only Receives Deference After It Satisfies the Parhat Test
The government argues that, in applying the Parhat test, “a reviewing court must account
for any deference owed by the judiciary to the underlying government interest.” Resp’ts’ Errata
Ex. A at 5, Aug. 9, 2013, ECF No. 63 (“Errata Opp’n”). Under the government’s logic, since
“[t]he judiciary has routinely deferred to the Executive in matters of prison security,” the Court
“should defer to the military’s assessment of the threat created by the public disclosure of COL
Bogdan’s discussions of the security procedures and guard operations at Guantanamo Bay.” Id.at 6–7. Courts generally accord prison administrators “wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security. Bell v. Wolfish, 441 U.S. 520, 547
(1979) (citing Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 128 (1977); Meachum v.
Fano, 427 U.S. 215, 228–29 (1976); Procunier v. Martinez, 416 U.S. 396, 404–05 (1974); Cruz
v. Beto, 405 U.S. 319, 321 (1972)). Nevertheless, the court need not defer to the government in
evaluating its proffered rationale to justify protecting the Bogdan Declaration under Parhat.
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Indeed, the government’s argument for deference confuses the roles of the Executive and the
Judiciary.
Initially, the Court must note the conceptual difference between substantive issues of
prison or military administration and the issue of whether court documents describing prison
procedures should be kept under seal. The former is a matter committed to the Executive, see id.
at 548 (“[T]he operation of . . . correctional facilities is peculiarly the province of the Legislative
and Executive Branches of our Government, not the Judicial.”), but the latter falls within the
Court’s expertise, see Bismullah, 501 F.3d at 188 (“It is the court, not the Government, that has
discretion to seal a judicial record, which the public ordinarily has the right to inspect and copy.”
(internal citations omitted)). The government’s argument for deference is inapposite because
none of the cases the government cites as compelling deference by the Court actually deal with
sealing court documents. To give one example, Bell v. Wolfish was a constitutional challenge to
“numerous conditions of confinement and practices at the Metropolitan Correctional Center
(MCC), a federally operated short-term custodial facility in New York City.”3 441 U.S. at 523.
This Court is unaware of any effort to seal court documents related to the practices at issue in
Bell—practices that included “strip search[es] conducted after every contact visit [by a detainee]
with a person from outside the [MCC].” Id. at 558. To the contrary, the district court described
the procedure for the strip searches in detail in its published opinion. See U.S. ex rel. Wolfish v.
3
The other cases the government cites in support of its argument for deference concern, respectively, an
environmentalist group’s effort to enjoin the Navy’s use of mid-frequency active sonar during training exercises,
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 12–15 (2008); a First Amendment free exercise claim by a
Jewish Air Force officer against Air Force regulations that prohibited him from wearing a yarmulke while on duty,
Goldman v. Weinberger, 475 U.S. 503, 504–07 (1986); and a claim by non-liturgical Protestant chaplains that the
Navy systematically discriminated against them in awarding promotions, In re Navy Chaplaincy, 697 F.3d 1171,
1173 (D.C. Cir. 2012).
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Levi, 439 F. Supp. 114, 146 (S.D.N.Y. 1977) (“Under the questioned practice, every inmate . . .
undergoes a strip search upon returning to his quarters from any visit. In the presence of a
corrections officer, the male inmate must remove his clothes, display his armpits, open his
mouth, raise his genitals, display the bottoms of his feet, and spread his buttocks for visual anal
inspection. Female inmates must follow a similar procedure, including a visual vaginal
inspection.”), aff’d in part and rev’d in part, 573 F.2d 118 (2d Cir. 1978), rev’d, 441 U.S. 520(1979).
The government’s argument for deference in the Court’s Parhat analysis states the law
backwards: Ameziane requires a court to defer to the government’s assessment of harm once the
government has already met the requirements of Parhat. Ameziane, 699 F.3d at 497. In
Ameziane, the Court of Appeals only turned to the issue of deference after it concluded in its
analysis that the government had satisfied both steps of the Parhat test. Id. In context, it is clear
that the Court of Appeals admonished the district court not for failing to apply deference to the
government’s proffered rationale under Parhat but for concluding that some other interest
outweighed the protection the government was due under Parhat. See id at 497–98 (“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.” (quoting
Bismullah, 501 F.3d at 187–88) (alterations in original)). Once the government establishes that
information is subject to protection under Parhat, that protection is not itself subject to
balancing. See In re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d at 24 (noting that the
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Court lacks authority to unseal information protected under Parhat because “the public interest
in certain information outweighs the harm to national security or foreign relations”). Though
attempting to balance the government’s interest in protecting information with the public’s
interest in disclosure would constitute error, that does not imply that the Court must defer to the
government’s own assessment of whether its proffered rationale for protection is sufficiently
tailored, detailed, and logical to pass the Parhat test. To do so would create the very situation
Bismullah sought to avoid by allowing the government unilaterally to determine whether
information should be protected. See Bismullah, 501 F.3d at 188.
Thus, this Court will only defer to the government’s assessment of the harm that would
result to national security or foreign relations from disclosing the Bogdan Declaration if the
Court concludes that the it merits protection under Parhat.
B. The Government Fails to Justify Protection for the Bogdan Declaration
Under Parhat’s First Step
The government seeks to protect part of paragraphs 19, 20, and 22 and all of paragraph
21 of the Bodgan Declaration. In support of its argument that these paragraphs should be
protected and remain under seal, the government relies on a second declaration by Col. Bogdan,
signed August 2, 2013. Decl. of Col. John V. Bogdan, Aug. 2, 2013, ECF No. 60-1 (“Second
Bogdan Declaration” or “2d. Bogdan Decl.”). The Second Bogdan Declaration provides the
government’s rationale for protecting the designated paragraphs of the original Bogdan
Declaration. The government originally filed the Second Bogdan Declaration under seal, though
the government subsequently filed a redacted version on the public docket. Notice of Filing,
Aug. 22, 2013, ECF No. 69.
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In light of the government’s errata, which withdrew the government’s request for
protection of paragraphs 5, 6, 14, and 16 of the First Bogdan Declaration, the Court will confine
its analysis to those paragraphs—19 through 22—that the government still seeks to protect. The
Court must note that, while the government submitted an edited version of its opposition in its
errata that focuses its argument solely on protecting paragraphs 19 through 22, Resp’ts’ Errata,
Aug. 9, 2013, ECF No. 63, the government neglected to obtain a revised version of the Second
Bogdan Declaration. Consequently, the Court must carefully review Col. Bogdan’s Second
Declaration pursuant to the reduced protection the government now seeks.
In its opposition, the government describes the remaining redactions in the Bogdan
declaration as “protect[ing] sensitive operational-security and force-protection measures in place
at JTF-GTMO.” Errata Opp’n 7. As an initial matter, it is unclear to the Court given this
description of the information the government seeks to protect how broad or narrow a category it
seeks to define: the government fails to make any explicit statement, whether by reference to
Parhat, Ameziane, or otherwise, to declare the precise category of information it seeks to protect.
Implicitly, the category must be information regarding operational-security and force-protection
measures, though the Court must ascertain whether this category is limited to those procedures in
place at the Guantanamo detention facility or whether it encompasses all operational-security and
force-protection procedures generally. To the extent that the government justifies protection of
the redacted paragraphs on the basis that the operational-security and force-protection measures
described therein are used both at Guantanamo and at other detention facilities in the United
States, id. at 7; 2d. Bogdan Decl. ¶ 7, it appears the government intends the latter. Further, the
government nowhere defines what constitutes an operational-security or force-protection
measure.
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In its broadest form, this category cannot survive the Parhat analysis. As the Court of
Appeals concluded in Parhat, an ill-defined category offers the Court no “basis upon which [it]
may determine whether the information [the government] has designated properly falls within
the categor[y] it has described.” 532 F.3d at 853. The categories that the Court of Appeals
approved in Ameziane and that this Court approved in In re Guantanamo Bay Detainee
Litigation were phrased using terms specific enough that the Court could understand what
information would fall within the protected category: It is clear at a moment’s notice, for
example, whether a document is a Task Force transfer decision or incorporates information from
a Task Force transfer decision. See Ameziane, 699 F.3d at 496 (describing “Task Force transfer
decisions” as a narrow category and noting that the court “face[d] no difficulty ‘determining
whether the information . . . designated properly falls within the categor[y] . . . described’”
(quoting Parhat, 532 F.3d at 853) (second alteration in original)). By contrast, a category
defined as “information relating to operational-security and force-protection measures”—like
“Law Enforcement Sensitive” information—offers the court no way to evaluate what
information falls inside or outside of the category absent a specific definition of the terms
“operational-security measures” and “force-protection measures.” Since the government does
not define these terms, the Court cannot conclude that the government’s proposed category is
sufficiently tailored to pass muster under Parhat.
Even assuming that the government corrected the problems in the definition of its
proposed category, either by defining “operational-security or force-protection measure” or by
limiting the proposed category solely to those measures in effect at Guantanamo Bay, the
government’s argument for protection still fails under Parhat because the government’s rationale
for protection is insufficiently tailored, detailed, and logical. As the Court of Appeals remarked
15
in Ameziane, “the narrower the category for which the government seeks protection, the more
likely the government’s rationale will be sufficiently tailored.” Id. at 495. The Court of
Appeals’ analysis does not indicate, however, that a proffered narrow category of information
will always have a tailored rationale. If, for example, the government “relie[d] solely on spare,
generic assertions of the need to protect information in the . . . categories it identifies,” Parhat,
532 F.3d at 852–53, as both Parhat and Bismullah forbid, the Court must find the proposed
rationale insufficient.
The government’s proffered rationales for protection fail under Parhat because they rely
solely on “spare [and] generic assertions” of the need to protect information regarding
operational-security and force-protection measures. The government offers four rationales for
protecting this information, all of which are insufficiently detailed under Parhat. First, the
government argues that disclosing the information would “enable our enemies, foreign or
domestic, to better prepare for an assault or operation against JTF-GTMO.” 2d. Bogdan Decl. ¶
8; see also id. ¶ 6. The extent of the detail the government provides under this rationale is that
the information contained within the redacted portions of the original Bogdan Declaration
“would be useful to an enemy for identification and targeting purposes” and that it would enable
our enemies to create “a blueprint of JTF-GTMO security operations.” Id. ¶ 6. The Court cannot
accept this rationale because it is just as spare and generic as the rationales the Court of Appeals
rejected in Parhat. Like the government’s rationale for protection in Parhat, the government
simply asserts that disclosure of the protected information would be harmful. See Parhat, 532
F.3d at 852 (Disclosure of Law Enforcement Sensitive information “‘could harm the
Government’s ongoing law enforcement activities related to the global war against Al Qaeda and
its supporters.’”). In contrast, Ambassador Fried’s declaration in Ameziane explains in great
16
detail how allowing a detainee to use Task Force transfer decisions to lobby other countries for
resettlement would disrupt the government’s efforts to resettle other detainees, rather than
merely asserting the problem exists. See Decl. of Daniel Fried ¶¶ 3–8, In re Guantanamo Bay
Detainee Litig., No. 08-mc-442 (TFH) (D.D.C. Sept. 9, 2012), ECF No. 1991-1. Thus, the
government’s first rationale fails under Parhat.
As a second rationale for protection, the government argues that the redacted portions of
the original Bodgan Declaration contain “force protection measures [that] are essential to the
need to maintain security [at JTF-GTMO and other] detention facilities to protect the staff,
inmates, and visitors.” 2d. Bogdan Decl. ¶ 7. While the government again fails to explain this
assertion in detail, it does point to a citation to “unclassified, but sensitive” information
contained within the redacted portion of the Bogdan declaration. Id. The government contends
that revealing this citation in the context of the force-protection procedures also included in the
redacted portions of the declaration could “compromise tactics, techniques, and procedures used
at various [redacted] detention facilities.” Id. To the extent that the government intends to
protect its strategies in employing certain operational-security or force-protection procedures, as
opposed to the actual procedures themselves, the government’s categorization and rationale is in
principle similar to the fifth category of information Judge Hogan approved for protection in In
re Guantanamo Bay Detainee Litigation. See 787 F. Supp. 2d. at 23 (“The government does not
seek to protect the types of [interrogation techniques] used, which are publically available, but
rather the ‘manner and strategy in which they are employed.’”). Generally, the government
provides a similar rationale for protection in both cases, namely that exposing information about
the strategy by which the government uses certain techniques could compromise those
techniques’ effectiveness. Nevertheless, the Court need not examine this rationale in greater
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detail to see if it suffices under Parhat because the government has waived protection for this
citation by failing to redact it in paragraph 17 of the publically disclosed version of the original
Bogdan Declaration. See Ex. 1 ¶ 17, Aug. 9, 2012, ECF No. 62-1.
The government also asserts, as its third rationale for protection, that dissemination of the
redacted portions of the original Bogdan Declaration would “allow [detainees or our enemies] to
manipulate or undermine operational security [at Guantanamo] and threaten the security of the
guards, detainees, and visitors.” 2d. Bogdan Decl. ¶ 6. Similarly, as a fourth rationale, the
government asserts that release of the redacted information “would present risks to operational
security and force protection in current detention operations, or if combined with other
information, could create risks to national security or endanger U.S. personnel.” Id. ¶ 8. Again,
the government offers no further details to explain its rationales and to show that they are both
tailored and logically related to the category it has designated for protection. As the Court
explained above, such spare and generic assertions of the need for protection are insufficient for
the Court to deem information protected under Parhat.
In closing, the Court turns to the government’s argument that there is a difference
between the Court unsealing the information redacted in the original Bogdan Declaration and the
release of that information through this Court’s previous Memorandum Opinion. 2d. Bogdan
Decl. ¶ 9; see Mem. Op. at 4–8, In re Guantanamo Bay Detainee Litig., No. 12-mc-398 (RCL)
(D.D.C. July 11, 2013), ECF No. 47, 2013 WL 3467134 at *2–4 (quoting and citing the original
Bogdan Declaration as part of the factual background of the case). Under the government’s
logic, the former would be directly attributable to Col. Bogdan while the latter is not. 2d.
Bogdan Decl. ¶ 9. The government’s argument raises a fair point. Cf. Fitzgibbon v. CIA, 911
F.2d 755, 765 (D.C. Cir. 1990) (“[I]n the arena of intelligence and foreign relations there can be
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a critical difference between official and unofficial disclosures.”). This argument is not,
however, a rationale for why operational-security or force-protection measures should be a
protected category of information. The government’s argument will not suffice absent some
justification for protection under Parhat, which the government fails to provide.
C. Col. Bogdan’s Second Declaration, as Well as the Briefs Relating to Mr.
Leopold’s Motion to Unseal the First Bogdan Declaration, Should Also be Unsealed
In their replies, both Mr. Leopold and the Petitioners request that Col. Bogdan’s Second
Declaration be unsealed. Pet’rs’ Reply 2, August 12, 2013, ECF No. 67; Reply in Support of
Jason Leopold’s Mot. to Intervene 1, August 16, 2013, ECF No. 68 (“Leopold Reply”). The
Petitioners also request that the Court unseal their reply and the government’s opposition.
Pet’rs’ Reply at 2. The government argues that Col. Bogdan’s Second Declaration should
remain protected because (1) it discusses why the First Bogdan Declaration should be protected
and (2) the reasoning in that discussion “contain[s] and independently constitute[s] operational-
security and force-protection information.” Second Bogdan Decl. ¶ 10. As the Court explained
above, the government’s terse justification for protecting the Second Bogdan Declaration is
completely insufficient under Parhat. For the reasons set forth above, the Court will also unseal
Col. Bogdan’s Second Declaration as well as the government’s opposition and errata and the
Petitioners’ reply.
IV. CONCLUSION
Before the Court will deem nonclassified information protected, “the government must
give the court a basis for withholding [the information] from public view.” Bismullah, 501 F.3d
at 188. The government has failed to do so here. In light of the Court’s decision that the
government has failed to justify protection for the First and Second Bogdan Declarations, the
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Court need not address the First Amendment arguments that Mr. Leopold presents. The Court
will unseal Col. Bogdan’s First and Second Declarations, the government’s opposition and errata
[60, 63], and the Petitioners’ Reply [67].
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, United States District Judge, on September 17, 2013.
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