Jan. 17, 2008 · Documents concerning the creation of procedures for the trials of accused terrorists that outside consultants provided to the Defense Department are private, the U.S. Court of Appeals in Washington, D.C., ruled on Friday.
In response to the Bush Administration’s creation of commissions to try terrorists, the non-profit group National Institute of Military Justice (NIMJ) requested any type of communication between the Defense Department and consultants hired from outside the agency for the project. The government had sought advice from outside consultants, including former high-ranking government officials and academics, to regulate the trials of prisoners held at Guantanamo Bay, Cuba.
Writing for the majority on a three-judge panel, Judge Karen Henderson upheld the lower court ruling that certain information provided by the consultants is exempt from FOIA requests under exemption five, which states that “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
The court ruled 2-1 that the information the consultants gave to the government qualified for the exemption because the information – 19 documents in total – was crucial to the government’s decision-making process regarding the trials, and if these types of advisory roles were subject to public scrutiny, they could “inhibit frank discussion of policy matters and likely impair the quality of decisions,” Henderson wrote.
Ragesh De, the attorney representing NIMJ, said the court’s ruling may create a slippery slope for the government to keep private almost any information it seeks from outside agencies or people.
“The majority opinion really opens wider a huge loophole in the Freedom of Information Act,” De said. “It allows the government to consult almost anyone, and keep that information private as long as they’ve designated those people as ‘consultants.'”
In its argument to the court, NIMJ cited a 2001 U.S. Supreme Court case that found exemption five didn’t protect documents that Native American tribes submitted to the government because they weren’t inter- or intra-agency documents, as the exemption requires. NIMJ argued that the same was true in this case.
In her opinion, however, Judge Henderson noted that the Native Americans were representing their own interests, while the consultants in this case were simply working in accordance with the government’s interests and offering advice.
Furthermore, the court ruled that the 2001 case left open the possibility of non-government documents being exempted depending upon the “consultant corollary” – how integral the consultants and the documents they create are to the government. And, in this case, the documents were a fundamental part to the government’s deliberating process.
De said NIMJ has not yet decided whether to petition the full court for a rehearing.
(National Institute of Military Justice v. U.S. Department of Defense) — Amy Harder