A couple of weeks ago (while I was sleep–er, grading), Judge Jed Rakoff in the U.S. District Court for the Southern District of New York issued this decision, rejecting the government’s attempt to keep the names of the Guantanamo detainees secret.
There’s a lot that’s surprising about the decision, particularly in light of this important D.C. Circuit decision from 2003, in which the court rejected a similar request to release the names of post-September 11 detainees, there relying on FOIA Exemption 7(A) [5 U.S.C. [sec.] 552(b)(7)(A)], the exception for law enforcement records where disclosure could “interfere with enforcement proceedings.” Why wouldn’t the same theory, to the extent it was right then, fly here?
Leaving that aside, what’s most intriguing to me is the argument on which the government lost — that the detainees have a right to privacy, codified in FOIA’s “Exemption 6,” that disclosure of their names would violate. (In full, Exemption 6 protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”).
Consider this passage from Judge Rakoff’s original opinion:
The only privacy interest [the government] purports to assert under Exemption 6 is that of the detainees; but of the 317 detainees in issue, only 17 have asserted a desire to have their identifying information kept confidential. Moreover, so far as the record here discloses, none of the detainees–not even these 17–had a reasonable expectation of privacy with respect to the identifying information they provided. Most of the information was provided by them in formal legal proceedings before a tribunal, and nothing in the record before the Court suggests that they were informed that the proceedings would remain confidential in any respect.
So, if I have this right, the government–which has consistently argued that the Guantanamo detainees have no rights, constitutional or otherwise–is now arguing that the detainees do in fact have a privacy right, as protected by FOIA’s Exemption 6? And a privacy right that courts have never recognized for criminal defendants?
One has to wonder if, at some point, the myriad inconsistencies in the government’s legal position vis-a-vis the rights of Guantanamo detainees begin to take their toll. As Judge Rakoff concluded in denying the government’s motion for reconsideration (a public copy of which I couldn’t find a link to):
Although the Government’s broad assertions, even though wholly unsupported by any competent evidence, might be entitled to some deference if they dealt with issues of national security, their claims as to what embarrassment or fear of retaliation might be felt by the families and friends of the detainees, and what those third parties’ reasonable expectations of privacy might be, is not entitled to special deference but, rather, must be supported by at least a modicum of competent evidence.
Makes me wonder, not for the first time, whether the D.C. Circuit got it wrong three years ago…
Posted by Steve Vladeck on February 7, 2006 at 03:14 AM
Comments
The treatment of prisoners is probably the only area in which I am in full agreement with the hosts of this site. It seems to me that the government’s argument was not that bad. In my view, the government has an absolute obligation to protect and care for people it holds prisoner equal to that of a person being in loco parentis to an infant — especially prisoners who have not been convicted of a crime — since it has deprived them of the ability to protect and care for themselves. Since this was a FOIA request, “who’s asking” is important. It is one thing if it a news organization interested only in the newsworthiness of the people and another if it their families or lawyers. I do not want to take it too far but in World War II Soviet soldiers who allowed themselves to be taken alive by the Nazis were considered traitors and many were freed form the POW camps only to be executed on Stalin’s orders. It may be that some of the prisoners stil “have family in the old country” who may become targets of their respective autocratic regimes or former terrorist comrades.
Posted by: nk | Feb 7, 2006 8:56:51 AM
Steve – Was the government making a constitutional privacy argument? At some point, the issue preclusion rules ought to apply to the government — no privacy for sodomy or abortion but yes to the names of the Gitmo detainees? Jeez.
Posted by: Lindsay | Feb 7, 2006 8:00:20 AM