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Red Cross Guantanamo findings do not have to be released

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Red Cross Guantanamo findings do not have to be released

  • The Department of Defense can legally withhold its correspondence with the International Committee of the Red Cross on the United States’ treatment of detainees in Guantanamo Bay, despite widespread reporting by world news media, a federal judge has ruled.

Jan. 7, 2005 — Exhaustive reporting on the United States’ treatment of detainees in Guantanamo Bay does not mean the Defense Department must release its correspondence on the subject with the

International Committee of the Red Cross, a federal district court in San Jose, Calif., ruled Dec. 21.

The case grew out of a May 2003 Freedom of Information Act request by journalist Joshua Gerstein for correspondence related to Red Cross findings on abuse of detainees at Guantanamo Bay.

After six months without a response, Gerstein, a staff reporter for The New York Sun , sued. The November 2003 suit compelled the Defense Department to respond to his records request in August 2004. The agency withheld about 965 documents, releasing fragments of 35 more. The department then filed a motion with the court, asking it to rule that its response complied with its obligations under the FOI Act.

In its Vaughn index — a description of each document withheld and an explanation as to why it was sealed — the Defense Department said that some of the records were classified, but that the majority of the records could be protected by a federal law that allows some national security agencies and the Defense Department to withhold certain information that an international organization provides to the U.S. government if the organization itself withholds it from public disclosure.

To prove its case, the Defense Department produced affidavits from its own employees who had examined the documents. Gerstein argued that the court should conduct an in-chambers review of the documents, rather than approve the agency’s claimed justification based on affidavits made by the its own employees.

Judge Jeremy Fogel ruled the affidavits adequate and refused to conduct an in-chambers review.

Gerstein also argued that the international organization exemption could not apply because the Red Cross did not treat the information as confidential. Fogel agreed that it appeared “disingenuous” for the department to claim that the information is confidential when the organization’s findings about detainee abuse in Guantanamo “is all over the news.”

Yet despite the widespread news reports, there was no evidence that the organization itself had officially sanctioned public release of its communications, the court said. They may have been leaked, Fogel continued, in which case the international organization law could still be applied.

Fogel also pointed to a letter that the Red Cross wrote to the Defense Department in which it explicitly requested that its communications be treated confidentially.

(Gerstein v. United States Department of Defense; San Jose, California) RL


© 2005 The Reporters Committee for Freedom of the Press

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