Commentary

Eleven days after the Supreme Court in 2008 established a constitutional right for Guantanamo Bay detainees to challenge their captivity in U.S. courts, the Justices told the lawyer for an Afghan prisoner to go ahead with such a plea “in an appropriate district court.”  The attorney for Abdul Hamid Salam Al-Ghizzawi did so.  But now, exactly 17 months later, Al-Ghizzawi still awaits a District Court hearing, although he apparently has been cleared for release from Guantanamo.  The Justices are now scheduled to consider next Friday what, if anything, to do, about his case.

Al-Ghizzawi is represented by one of the feistiest of the volunteer lawyers who represent Guantanamo captives — Chicago attorney H. Candace Gorman.  Whatever else she has done over the past few years, she has been a fervent, even unrelenting, advocate for this Afghan shopkeeper who has now been held prisoner for more than eight years.

While she awaits word from the Supreme Court on her second ”original habeas” plea filed there, seeking a hearing on his challenge, her client’s already-bizarre case has grown even more so.  On Wednesday, a federal District judge issued an order requiring Gorman to remove from her website an article in which she claimed she had been “muzzled” from publicly discussing his case.  District Judge John D. Bates’ two-page order, issued at the Justice Department’s request, is here.  If one checks Gorman’s website (actually, it is The Guantanamo Blog), the article, titled “The Muzzle Is Back On,” dated last Saturday, is no longer displayed.  Neither is one she posted four days earlier, “The Muzzle Is Off.”

Both articles, however, are cached on the Internet — a fact that Judge Bates said made no difference.

 Attorney Gorman, the Bates order said, is bound by protective orders that govern all Guantanamo habeas cases in District Court, whether or not any information shielded from public disclosure by those orders is actually available on the Internet.

It is important to note, however, that what is involved is not information that is officially classified — that is, protected by federal laws governing national security information.  For the Guantanamo cases, the District judges have created — at government request — an entirely separate category: “protected” information.  It is material that the government considers sensitive, but does not treat as formally secret.

It is unclear at this point just what the protected, or unprotected, status of Al-Ghizzawi’s now-pending document  in the Supreme Court has.  It is called an “original habeas” petition (called “original” because it was filed directly in the Supreme Court, not on appeal from any lower court action or order), and is being treated by the Court as such pleadings always are.  The Court, for example, has yet to decide whether to ask the Justice Department to respond to it — an issue that, presumably, the Justices will consider next week.

Gorman originally filed this petition under seal on Oct. 2  (the case is In re Al-Ghizzawi, 09-7290).  At that time, it had not been cleared for public release.   On Nov. 16, Gorman received from government security officers a copy of the petition, with every page stamped (”Unclassified for Public Release”).  Gorman then made it available to those interested in it. The next day, she wrote the post on her blog titled, “The Muzzle Is Off.”

Then, on Nov. 21, she posted on her blog the article titled “The Muzzle Is Back On,” saying that she had been told by a government lawyer that the clearance of the petition had been a “mistake” since it contained information in the “protected” category.

Since then, what has unfolded in Judge Bates’ Court is not entirely clear, since most of the documents that were filed about the “protected” information dispute remain under seal.  So far, all that has become publicly available is the judge’s order of Wednesday, and a brief that Gorman had filed on the issue, also on Wednesday.  That document is here.

Among other points Gorman made in that filing, she questioned Judge Bates’ authority to issue an order related to her filings in the Supreme Court.  She said she was unsure about that, and “hoped that the Government would explain” how a District Court “could provide a remedy to an issue that occurred in a Supreme Court filing.”

In his order, apparently issued later Wednesday, the judge mentioned Gorman’s point about the alleged lack of jurisdiction, but he did not respond to it.  Instead, he focused on his conclusion that Gorman was “bound by the various protective orders in this case.”

“Despite its apparent inadvertent disclosure, the disputed information remains ‘protected’ material,” the order added.

Besides ordering Gorman to take down “The Muzzle Is Back On” posting, the judge ordered her not to disclose any “protected” information.  He ordered both sides to file additional legal memos by Dec. 7.  It is unclear whether those, too, will remain sealed, or become publicly available.

(NOTE TO READERS: This blog has a copy of the original habeas petition that is now pending in the Supreme Court, but is not linking to it at this time since its legal status is not yet clear.  The Court on Nov. 2 agreed to allow the petition to be filed under seal, and there has been no apparent change in that.  Judge Bates clearly does consider that document to contain information in the special “protected” category.)