NEWS MEDIA UPDATE · NEW YORK · Freedom of Information · Sep. 2, 2005
Judge: Ask Guantanamo detainees about their ‘privacy’
Sep. 2, 2005 · The government must ask Guantanamo Bay detainees tried before military tribunals if they think disclosing their identities would intrude upon their privacy, a federal district court judge in Manhattan said Monday.
Judge Jed Rakoff questioned the Department of Defense’s use of the privacy exemption to withhold information identifying detainees in a Freedom of Information Act lawsuit brought by The Associated Press. The government seeks to act as a surrogate for the detainees and safeguard their identities “for what it believes is their own good and the good of their families, ” he said, but he speculated that the detainees themselves might disagree.
After AP sued for copies of the transcripts of military tribunal hearings, the agency provided them but redacted details that would identify individuals. The agency then asked the judge to find it had complied with the FOI Act request. AP had requested the transcripts in November 2004 but got no response until it filed a lawsuit in April.
The tribunal hearings were held in mid-2004 to determine if the prisoners were “enemy combatants,” in line with U.S. Supreme Court rulings in 2004 supporting use of the tribunals to determine their status.
Rakoff noted that the U.S. has held 500 or more persons collectively labeled “enemy combatants” since 2002. The substantial majority of them were not charged with war crimes, not informed of the basis for their detainment, not given access to counsel and held “virtually incommunicado” from the outside world, he said.
“One might well wonder whether the detainees share the view that keeping their identities secret is in their own best interests,” he wrote. “But — given that the detainees are in custody and therefore readily available — it is really not difficult to find out.”
The Defense Department protested that it might be logistically difficult to obtain the detainees’ views, but the judge said in a footnote that he was “entirely unpersuaded by the Government’s conjecture” and ordered the agency to create a form for the detainees’ responses within the week.
Their responses are due the court in early October.
(AP v. DOD; Media counsel: David Schulz, New York, N.Y.) — RD