A federal judge will decide whether the CIA must release classified documents detailing the interrogation techniques used at Guantanamo Bay and explaining the destruction of relevant videotapes. Does the judge get to see the top-secret documents before ruling on their fate?
Only if the CIA can’t give him an adequate description of their contents. When the government refuses to release documents requested under the Freedom of Information Act, the person or group that asked for them can file a lawsuit. If that happens, the feds must produce a declaration justifying the decision to hold the information back. If the judge can’t tell from this statement whether the suppression is legitimate, he will view the documents in chambers and may hear the government’s arguments without the plaintiff present. Then he can release a redacted transcript of the hearing, make a decision, and publish as much of his reasoning as he can without disclosing any secret information.
Federal judges don’t need security clearances to see top-secret documents relevant to their cases. (In the rare event that classified information is at issue in a jury trial, the jurors are also exempt from the clearance requirement.) Everyone else who would have access to the documents, or the specific information they contain, must be cleared before they can participate in the case. That includes the judge’s clerks, court reporters, and the bailiffs. Sometimes the Department of Justice simply sends its own pre-cleared personnel to replace the court’s usual people on the case rather than bothering with the lengthy clearance process. The judge also appoints a court security officer to supervise the handling of the secret documents. When not in use, the documents are often kept “in a safe or safe-type steel file container with built-in, dial-type, three position, changeable combinations.” (If the judge doesn’t have a safe, she can borrow one from the Department of Justice.) In most cases, only the court security officer has the combination—even the judge has to ask for the safe to be opened.
In general, the plaintiffs in these cases have a tricky task. The government knows exactly what the document says, whereas they’re left to make arguments based only on what they’ve been told and what can be pieced together from publicly available information. (Click here for a PDF of a government declaration in the Guantanamo case.) For this reason, many FOIA litigators actually prefer that the judge not view classified documents prior to issuing a decision. They want the judge to feel as blind as they do.
Courts have historically deferred to the executive branch when it comes to classifying documents. In the few cases in which someone has successfully challenged the government’s determination, it has come after many years of legal battles. In 1983, a journalist requested all FBI files relating to John Lennon, which the agency claimed contained national-security information and intelligence provided by foreign governments. It took 14 years for the FBI to release most of the documents, though it has still refused to release 10 contested pages.
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Explainer thanks Gitanjali Gutierrez of the Center for Constitutional Rights, Scott Hodes of InfoPrivacyLaw.com, Kathryn A. Sabbeth of the Institute for Public Representation at the Georgetown University Law Center, and Amrit Singh of the ACLU.
