In an opinion handed down two days before the international community mourns the 11th anniversary of the first men being sent to Guantanamo Bay, a judge has ruled that the U.S. Government may rely on Top Secret evidence without sharing that information with the detainee’s lawyers – even if the material could be relevant to the prisoner’s case.
In 2005 Afghan detainee, Wali Mohammed Morafa brought a habeas case to challenge his ongoing detention. During the discovery phase of the case – where each side discloses information to the other - the lawyers for the US government came across information that could be useful to Mr. Morafa’s defense, but the documents had been classified Top Secret. Mr. Morafa’s attorneys did not possess the requisite level of security clearance, so the Government deemed it did not have to share the information with them. His attorneys sued for the right to review the evidence first-hand.
In her opinion, Judge Rosemary Collyer posed the provocative question: “may the Respondents rely on Top Secret source-identifying information for which there is no adequate substitute and that cannot be released to Petitioner’s counsel, even if it might assist his petition?” The answer, she decided, was “yes.”
“Some source information contained in Top Secret documents reviewed [by the judge] could be relevant and material to Mr. Morafa’s case,” she wrote. “However, the Government has argued persuasively that source and method information are particularly critical within the Intelligence Community and the nation’s security and, thus, cannot be revealed to Mr. Morafa’s counsel…. It is true that this ruling will have a [detrimental] impact on Mr. Morafa’s ability to contest the basis for his detention. However, the Court concludes that the [value] to the Court of considering that evidence, in tandem with the ‘exceptionally grave damage to the national security’ that could result from the unauthorized disclosure of Top Secret information…outweighs the marginal impact of withholding the information in question.”
As Mr. Morafa and the other 165 detainees waste away in Guantanamo, the Obama Administration refuses to present a level playing field and devises ever-more-convoluted legal hurdles to their release.