…if that means anything. It’s a long story, but after waiting eight years locked in Guantanamo, Abdul Hamid Al-Ghizzawi has a tale that could bear listeners. But his lawyer H. Candace Gorman is not allowed to tell it, she’s under court orders to keep mum. Even after details came through the foreign press, a judge ordered that Gorman remove two subsequent posts from The Guantanamo Blog which offered clarification. NMT learned from the Supreme Court Of the United States Blog (SCOTUSBLOG) that Gorman’s articles are still cached. Naturally we have reprinted them here.
Read them and become a state secret yourself.
Just kidding– the information is not ruled to be a state secret, only “protected,” whatever that means. Regardless that the information is already public, Ms. Gorman herself is not permitted to propagate it. You and I can divulge what we wish.
And divulge we must, I’m sure you’ll agree. Whether or not internet mirrors can be penalized, what is this sham of “protected” information? The concept defiles President Obama’s expressed objective of transparent government. This particular information shames our judicial system. Read it and judge for yourself.
You can keep up on Guantanamo attorney Candace Gorman’s latest efforts at gtmoblog.bogspot.com, but you won’t find these two posts: THE MUZZLE IS OFF, and THE MUZZLE IS BACK ON. I’ve also included the text of Judge John Bates’ gag order, and Ms. Gorman’s latest filing. Halfway down I will offer a summary, if you’re in a hurry.
November 17, 2009
THE MUZZLE IS OFF
In June of this year I received a call from a foreign reporter who asked if I could give her a profile of my client Al-Ghizzawi as he was on a list of men whom the US was looking for a new home and her country was considering accepting him. This was the first I had learned that Al-Ghizzawi had been “cleared” by the Obama review team for release. I gave her information about my client and for all I know a story was published about the plight of al-Ghizzawi at Guantanamo, his status as “cleared” and why he needed a country in Europe to take him.
A few days later an attorney from the justice department called to tell me that Al-Ghizzawi was cleared for release and we laughed about the fact that I already knew the information. However the laughing stopped when the attorney told me that the justice department had designated the information as “protected” and I could not tell anyone except my client and those people who had signed on to the protective order (a court document that outlines the procedures for the Guantanamo cases) about his status as “cleared for release.” I told the attorney that he could not declare something “protected” that was already in the public domain. To make a long story short we were not in agreement and the attorney filed an emergency motion with the judge to muzzle me. Despite the fact that the information was in the public domain I was muzzled by the good judge who apparently doesn’t believe that the constitution applies to me. I couldn’t even tell Mr. Al-Ghizzawi’s brother what I thought was good news (I didn’t know then that this was just another stall tactic by the justice department).
Not only was I muzzled but Mr. Al-Ghizzawi’s case was put on hold. The habeas hearing that we had been fighting to obtain literally for years was stayed by the judge despite the fact that the US Supreme Court held in June of 2008 that the men were entitled to swift hearings…. So much for the Supreme Court! The president asked the judges to stop the hearings for those men who were “cleared” for release and the judges have fallen into lockstep, shamefully abandoning their duties as judges.
A few months later when I visited Al-Ghizzawi (at the end of August) he had just received word from his wife that she could no longer wait for his release and she asked him if she would sign papers for a divorce. Bad news is an every day occurrence for Al-Ghizzawi and he was holding up well despite this latest blow.
When I returned from the base I asked the justice department to allow me to contact Al-Ghizzawi’s wife and tell her that he had been cleared for release. I hoped that if she knew he was to be released she would hang in there and not go through with the divorce. I was told they would get back to me. When they didn’t I asked again but they still would not give me the ok. In Court papers I pleaded with the judge to let me tell Al-Ghizzawi’s brother and wife, telling the judge about the wife’s request for a divorce, but the Judge, the same Judge who has apparently decided to ignore the supreme court’s directive for quick habeas hearings, ignored this plea as well.
I seriously thought about disobeying the order and trying to get word to Al-Ghizzawis’ wife and then taking whatever lumps were thrown my way….however, despite the fact that the judicial system has failed Al-Ghizzawi and most of the men at Guantanamo I could not bring myself to blatantly disobey a court order. For five months I have kept this information confidential despite the injustice to both my client, Mr. Al-Ghizzawi, and to what was our rule of law…. until yesterday, when the muzzle was lifted.
This is only part of the story. I will be writing more about this in the future and our friend the talking dog has more to say on this.
Click on the title for his take.
Meanwhile, if you hear from a habeas attorney that his or her case has been stayed you will know about the injustice that their client is continuing to suffer, you will know that the client has been cleared for release, that the attorney cannot discuss that fact and that the judge in that case has abandoned his or her duty to be a judge. You will also know that being cleared for release is just as meaningless as everything else that has been happening to these unfortunate men…. because being cleared for release means nothing.
And the follow-up:
Saturday, November 21, 2009
THE MUZZLE IS BACK ON
Fortunately for all of you….the muzzle only applies to me.
On Tuesday I reported that the Government finally allowed me to discuss matters that had previously been “protected” in regards to my client Al-Ghizzawi. In fact the Government unclassified and allowed for public release a Petition for Original Habeas Corpus that I filed in the U.S. Supreme Court. I released that Petition to the Public in accordance with the Government’s designation of “unclassified.” On Friday the Department of Justice (DOJ) told me that it had made a mistake and that it had apparently violated the Protective Order (an Order that sets out the rules for the DOJ and Habeas counsel in regards to the Guantanamo cases) entered in the case when it “unclassified” and allowed for public release information in the Petition that it wanted to “protect” and that therefore I must remove my post of November 17 because of the DOJ’s mistake. I explained to the DOJ attorneys that the Petition and my Post of November 17th were widely distributed and are available at various sites on the web… they do not seem to care about that ….they only care that I not report about what they are now trying to declare “protected information”…. 5 days after they unclassified the material and made it available for public release.
This is of course outrageous conduct by the DOJ…. in trying to declare something as “protected” after being clearly designated and distributed to the public but what else is new? For those of you who either remember my November 17th post or have it available on your website…. I originally learned of the so called “Protected” information from a public source and the Judge in Al-Ghizzawi’s case still ruled that I could not discuss it. Anyway, later this weekend I will try to provide all of the links that I can find from other sources who properly reported on the petition and my saga regarding it…. for now I am leaving you with these two links…. here and here as I happen to have these easily available.
I also expect several websites and other media outlets to be reporting on this and making the petition available at their websites because they received it from me back when I was allowed to distribute it or otherwise obtained it on the internet. I also provided interviews earlier this week and I expect that those will soon be available too. If any of you have time out there to find some of the websites where this story and petition are published please feel free to provide a link…or if you see it pop up on websites in the coming weeks please provide those links as well.
This is not the end of this story. Under the Protective Order the Government must actually get the Judge’s permission to retroactively keep me (and only me) from publishing and discussion the information that the Government now seeks to “Protect.” The DOJ will have to file a document with the Court explaining why this now very public information should be “protected.” Ultimately it will be the Judge’s decision. If you do not see my post back up that will mean that the Judge agreed with the Government, that I alone cannot talk about those things that you are privy to discuss.
I will just add…. this is just another day in the life of being a habeas counsel.
Are you looking for a summary? Mr. Al-Ghizzawi is among the Guantanamo inmates who have been “cleared for release.” Foreign governments know this, as well as the foreign press. But officially the status is “protected information.” Meanwhile, probably among other tragic developments, Al-Ghizzawi’s wife is seeking a divorce based on her impression that her husband will never be released. And attorney Gorman is forbidden to tell her she knows otherwise.
Except, that being “cleared for release” now has turned out to mean a worse limbo than before. It means all legal motions are suspended, pending a government action that is not forthcoming. Thus Mrs. Al-Ghizzawi’s prediction may be more accurate than the lawyer’s, that her husband is nowhere closer to being released.
And Judge Bates may understand this too.
Below is the Judge’s gag order:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ABDUL HAMID AL-GHIZZAWI,
Petitioner,
v.
GEORGE W. BUSH, et al.,
Respondents.
Civil Action No. 05-2378 (JDB)
ORDER
Before the Court is [277] respondents’ emergency motion to enforce the protective orders in this case, which was filed yesterday. Respondents ask the Court to order petitioner’s counsel to remove an article from her website that respondents contend reveals protected information. See Resp’ts’ Mot. to Enforce the Protective Orders [Docket Entry 273], at 1. They also request that the Court direct petitioner’s counsel “not to further disseminate ‘protected’ information.” Id. For her part, petitioner’s counsel asserts that the information she posted on her website and used in the article was disclosed by the government before the present dispute. See Pet’r’s Opp’n to Respt’ts’ Mot. [Docket Entry 274], at 5. Accordingly, she offers, “it is an extraordinarily odd situation to permit everyone else in the world to discuss this matter except counsel.” Id. She also suggests that this Court has no jurisdiction to address a filing made in the Supreme Court in petitioner’s original habeas corpus proceeding. See Pet’r’s Supplemental Resp. to Resp’ts’ Mot. [Docket Entry 276], at 2-3.
Petitioner’s counsel is bound by the various protective orders in this case, whether or not any “protected” information is now available on the internet. Here, despite its apparent inadvertent disclosure, the disputed information remains “protected” material. And accordingly, petitioner’s counsel is precluded from disclosing it. Therefore, it is hereby
ORDERED that respondents’ motion is GRANTED pending further order of the Court; it is further
ORDERED that petitioner’s counsel shall remove the article entitled “The Muzzle is Back On” from her website because it contains “protected” information and derivative material; it is further
ORDERED that petitioner’s counsel shall not disclose “protected” information and information or documents derived from “protected” information as defined by the protective orders in this case; and it is further
ORDERED that the parties may file supplemental memoranda, limited to fifteen (15) pages, addressing this matter by not later than December 7, 2009.
SO ORDERED.
/s/
JOHN D. BATES
United States District Judge
Dated: November 25, 2009
And Gorman’s filing of Nov 25:
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ABDUL HAMID AL-GHIZZAWI
Prisoner, Guantanamo Bay Naval Station, Guantánamo Bay, Cuba;
Petitioner,
v.
Barack Obama, et. al.
Respondents.
)
RESPONSE
motion to
No. 05 cv 2378 (JDB)
PETITIONERS SUPPLEMENTAL RESPONSE IN OPPOSITION TO THE GOVERNMENT’S MOTION FILED UNDER SEAL
Petitioner Abdul Hamid Al-Ghizzawi (“Petitioner” or “Al-Ghizzawi”) hereby supplements her Response to the Governments Motion under seal as follows:
On November 24th, 2009 Counsel for Petitioner filed a Response to a Motion by the Government despite the fact that she had not actually seen the Motion. Counsel did this because of her well reasoned concern that the Government would wait as long as possible to send Counsel the actual Motion (it was emailed to her 1 ½ hours after the notice went out and one hour after she emailed counsel for a copy) and that it would not fully address all of the facts (as is shown by the Motion). Counsel was preparing and did leave for a family gathering prior to receiving the actual Motion by email. After Filing that Response the Government filed a subsequent “notice of classified filing” and according to an email from the Court Security Office that Motion is entitled “Supplemental Memorandum.” Counsel for Petitioner does not have access to that document, which awaits her at the Secure Facility, has no idea of its contents and is therefore not addressing anything that might be in that supplemental memorandum related to the issues herein.
The issue that Counsel seeks to address herein is surprisingly not addressed by the Government in its Motion and that is the jurisdiction of the District Court to address issues raised in Petitioner’s Supreme Court filing. Counsel does not have the answer to this question although she spent some time on the question over the past few days and had hoped that the Government would explain in its Motion how the District Court could provide a remedy to an issue that occurred in a Supreme Court filing. In essence what the Government is asking this Court to do is to apply district court orders to a Supreme Court case. The Government should have the burden of establishing the District Court’s jurisdiction in this uniquely extraordinary circumstance of attempting to have the District Court enjoin the Supreme Court- As it – as it was the in the United States Supreme Court itself where this document was unsealed. As the Government noted in its Motion, the Petition for Original Habeas Corpus was filed in the Supreme Court on October 2, 2009. Petitioner filed the document under seal. The Government then reviewed the Petition and notified counsel and the Supreme Court that the Petition was declassified for public release. A copy of the Petition was attached to the notice by the Government that noted on each and every page that the document was “declassified for public release.” The history of that document after it was cleared is fully set out in Petitioner’s Response. When the Government later decided that it did not want certain of the information in the Petition released to the public instead of seeking relief from the Supreme Court, where the now declassified petition was filed, it instead has come back to the District Court for relief.
When Counsel for Petitioner filed her original habeas case she simultaneously filed a motion with the Supreme Court to ask that the Petition be filed under seal and it was the Supreme Court that sought a declassified version of the Petition for public filing. Counsel for Petitioner believes that the proper course of action that the Government should have taken would have been to file a Motion with the Supreme Court asking to retroactively “protect” certain information that it “declassified for public release” and which it then later determined it wanted to protect.
Wherefore, for the reasons stated in Petitioners original response and this Supplement Counsel asks this Court to deny the Government’s “emergency” Motion.
Respectfully Submitted,
November 25, 2009
/s/
H. Candace Gorman
Counsel for Petitioner
Law Office of H. Candace Gorman
H. Candace Gorman (IL Bar #6184278)
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