The government yesterday filed a formal response (pdf) in federal court in opposition to the public use of WikiLeaks documents by a habeas attorney who represents a client in U.S. military detention at Guantanamo Bay. Those documents are or may be classified, the government insisted, and must continue to be treated as such.
In an April 27 motion (pdf), attorney David Remes had asked the Court to authorize “full and unfettered access” to WikiLeaks documents pertaining to his client, and to affirm that he “may publicly view, download, print, copy, disseminate, and discuss the documents and their contents, without fear of any sanctions.”
“Any member of the general public can view these files, download them, print them, circulate them, and comment on them,” Mr. Remes wrote. “Undersigned counsel, however, fears that he will face potential sanctions, legal or otherwise, if he does exactly the same things without express government permission.”
In its response yesterday, the government said that Mr. Remes (and other habeas attorneys) may “view” the documents on a non-governmental computer, but may not “download, print, copy, disseminate, [or] discuss these documents” in public.
To justify its position, the government argued that it had not confirmed the authenticity of any particular WikiLeaks document, and that the restrictions on attorneys’ use of the documents serve to maintain the possibility that one or more of the documents is not genuine.
“Although the Government has confirmed that purported detainee assessments were leaked to WikiLeaks, the Government has neither confirmed nor denied that any particular individual report appearing on the WikiLeaks website is an official government document,” the government attorneys wrote.
“The Government must refrain from confirming whether any particular reports disseminated by WikiLeaks are genuine detainee assessments or not, to avoid the risk of even greater harm to national security than may have already been caused by WikiLeaks’ disclosures.”
This argument seems weakened, however, by the fact that the Government has not identified even one document among the many thousands released by WikiLeaks that is not genuine or is not what it appears to be. In the absence of even a single such case of falsification, the documents may be understood to be presumptively authentic even if government officials will not deign to say so.
It will be up to the Court to decide which party’s perspective is legally compelling.