Restrictions on WikiLeaks Documents Challenged in Court

The publication of leaked classified documents by WikiLeaks continues to confound government officials and to generate some unusual legal tangles.  Last month, attorneys for a Guantanamo prisoner asked a federal court to nullify the restrictions that the government has imposed on access to and dissemination of the leaked records, so that the prisoner can prepare a response to the disclosures contained in them.

Hundreds of files pertaining to prisoners at Guantanamo have been posted online by WikiLeaks.  In a December 2010 notice, the government advised the security-cleared attorneys who were representing detainees in their habeas corpus petitions that the WikiLeaks materials retained their classification status, despite the fact that they had been globally distributed, and that they must be treated like any other classified document.  In June 2011, the government modified its position to authorize attorneys to view the WikiLeaks documents on a non-government computer, but not to download, save, print, disseminate or transport them.

The government policy on this matter is unworkable and incoherent, argued attorneys for detainee Abdulhadi Omer Mahmoud Faraj in an April 18 motion in DC district court.  Worse, they said, it is damaging and unfair to their client.

“WikiLeaks has made available to the world Mr. Faraj’s Detainee Assessment Brief (DAB) [which] is based in significant part on unreliable claims made by individuals under conditions that amount to coercion, if not torture.”  But due to the government’s restrictions, “Mr. Faraj cannot review with his attorneys any of the pertinent documents published by WikiLeaks nor can he meaningfully consult with his attorneys to develop a response to the one-sided and negative narrative that the materials reflect,” the motion stated.

Attorneys argued that the portrayal of Mr. Faraj in the leaked Brief, which presents him as a violent Islamist extremist, places him and his family in jeopardy.

“The relief Mr. Faraj seeks here is necessary to protect his family in Syria, to the extent possible, and to preserve his prospects for resettlement or repatriation without risk of torture should he be finally set free by the Court or the government…. The false allegations in the leaked DAB, especially if left unrebutted, jeopardize Mr. Faraj’s safety upon repatriation and that of his family.”

“Because the DAB from WikiLeaks is among the top-recalled items when using a search engine such as Google to find news of Mr. Faraj, it is especially important for the Court to grant the relief sought herein so counsel and Petitioner can develop a public response to the DAB allegations,” the motion stated.

The motion presents several cogent criticisms of the government’s restrictions on use of the WikiLeaks documents.  For example, Mr. Faraj’s attorneys wrote, it makes no sense to permit “viewing” a document while prohibiting “downloading” it.

“When the security-cleared attorney views a WikiLeaks document on her personal computer, that page is stored in the computer’s memory despite the attorney’s lack of intent to download the document,” the motion noted.

Likewise, though the government “purports to prohibit transportation of WikiLeaks materials, it permits counsel to view these materials on their personal computers, leaving open the question whether counsel may access these materials on a personal laptop computer or tablet device, which by their nature are transportable.”

In a particularly interesting line of argument, the motion disputed the government’s legal right to regulate the attorneys’ access to the WikiLeaks documents in the first place, because they said the nondisclosure agreements signed by the attorneys and the protective order issued by the court apply only to information that was provided by the government.

Those agreements “refer not to all classified information in existence, but rather to the specific classified information the government releases to security-cleared attorneys in connection with habeas litigation.”  Since the WikiLeaks documents were obtained independently, they are beyond the purview of the nondisclosure agreement, the motion said.

The Faraj attorneys expressly acknowledged that they are not allowed to comment on classified information in the public domain in a way that reflects or is derived from their authorized access to non-public sources.  But “in all other regards, when the information is publicly available and neither accessed pursuant to the Nondisclosure Agreement nor the Protective Order, Mr. Faraj’s security-cleared attorneys must be treated no differently from the general public with respect to that information,” they wrote.

“Since Mr. Faraj’s security-cleared habeas counsel did not illegally disclose or come into possession of this information, but rather merely seeks to make use of it in its already-public form, they are no different from the public at large and the government may not restrict their use of WikiLeaks materials,” the motion concluded.

On May 18, government attorneys filed a response in opposition to the the Faraj motion, but that response was classified.

A reply from the petitioners is due July 16.

Another dispute over the use of WikiLeaks documents in habeas proceedings arose last year in the Paracha case, but that dispute was resolved or superseded without a court ruling.  See “Govt Opposes Attorneys’ Free Use of WikiLeaks Documents,” Secrecy News, June 16, 2011.