- The Washington Times - Tuesday, June 2, 2009

Secret documents explaining the reasons for holding more than 100 detainees at the Guantanamo Bay Naval Base prison could be released for the first time as early as next month.

U.S. District Court Judge Thomas F. Hogan ruled Monday that such documents, known as “factual returns,” cannot be sealed indefinitely. The judge gave the government until July 29 to either release the documents or submit sealed arguments as to why certain portions must remain secret.

“Public interest in Guantanamo Bay generally and these proceedings specifically has been unwavering,” Judge Hogan wrote in a 19-page ruling. “The public’s understanding of the proceedings, however, is incomplete without the factual returns. Publicly disclosing the factual returns would enlighten the citizenry and improve perceptions of the proceedings’ fairness.”

The Justice Department would not say whether it plans to appeal the decision, only that it is “reviewing the court’s ruling.”

“It is important to note that the government never sought to keep the information at issue sealed indefinitely, but only until the completion of an appropriate classification review,” spokesman Dean Boyd said. “The government had sought additional time from the court to complete this review — in order to ensure that the version of these documents made public contained no properly classified information.”

The factual returns are unclassified, but some classified information inadvertently ended up in them, according to court documents. That is why the government asked Judge Hogan to keep the factual returns secret.

Mr. Boyd said the government needed time to fix those factual returns, but that the process was slowed because the Justice Department lawyers who do that work are under increasing pressure to review the documents before release due to the Supreme Court’s decision last year to allow Guantanamo detainees to challenge their detentions in federal court.

Lawyers for 102 detainees, who were joined by the the Associated Press, the New York Times and USA Today, argued that the factual returns should be released.

Judge Hogan agreed and criticized the government for wanting to “sweep as broadly as possible” and for failing “to commit to any deadline by which the unclassified information will be provided to the public.”

“The government concedes that it is capable of screening the returns to identify classified material that could harm national security if publicly released,” Judge Hogan wrote. “Therefore, it is not essential for the government to seal completely every return to protect national security.”

The ACLU called the decision a “a victory for transparency.”

“For far too long, the government has succeeded in keeping information about Guantanamo secret, and used secrecy to cover up illegal detention and abuse,” said Jonathan Hafetz, an attorney with the ACLU National Security Project, which represents one of the Guantanamo detainees seeking his unclassified factual return. “The decision marks an important step towards restoring America’s open-court tradition that is essential to both accountability and the rule of law.”

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