Washington D.C., Asharq Al-Awsat- For the last four years, western countries, international and US human rights organizations and civil society groups have called on the Bush administration to reveal the names of prisoners it is holding captive in Guantanamo Bay, Cuba. Earlier this month, the Pentagon released documents that contained the names of hundreds of detainees. The released resulted from a victory by The Associated Press in a Freedom of Information Act lawsuit.
What were the legal bases for this case? What are the historical precedents for such a request? Who is the journalist that spearheaded this issue?
In late 2004, Paisley Dodds, an Associated Press correspondent in San Jose, Puerto Rico, filed a Freedom of Information Act request for transcripts and other documents related to military hearings for detainees and called on the government to make public the names of more than 500 detainees held in Guantanamo since January 2002.
Dodds was assigned to cover the US military base in Cuba as it was in close proximity to the island of Puerto Rico where she was based. She says that any US journalist can ask for information from any government department according to the Freedom of Information Act, which was enacted by Congress and signed into law by President Lyndon Johnson in July 1966.
The “Johnson Law” might have not seen light of day if it were proposed three or four years later, at the height of the Vietnam War. As the conflict intensified and military losses mounted, public opinion began to turn against the war. Many American military commanders continue to blame press coverage for their defeat in Vietnam, because they uncovered information that benefited “the enemy”. For example, they claim, the secret “Pentagon papers”, a 7000 page top-secret study of the United State’s political and military involvement in Vietnam, commissioned in 1967 by Robert MacNamara, then Secretary of Defense. They revealed, amongst other things, that the government had deliberately expanded its role in the war. Most, but not all the Pentagon paper were leaked to the New York Times in early 1971 and subsequently published. They marked the beginning of the end of the Vietnam war as the papers intensified public opposition to the conflict.
The Freedom of Information Act remains a cornerstone of American journalism. Ordinary citizens can also use the Law to request access to federal agency records or request any federal department to release secret information.
In a recent report, the Center for National Security Archives at Georges Washington University indicated that more than 2 million requests for information are made each year by American citizens to different government departments and agencies (the Law does not apply to the private sector or elected officials such as the President and members of Congress). The Bush administration, according to the report, has been reluctant to reveal secret government information, especially following the September 11 attacks, under the pretext of not wanting to endanger national security.
Bill Moyers, television anchor and former White House press secretary, supported the center’s conclusions. “I was there when Johnson signed the law. However, what people don’t know is that Johnson was forced to sign it, because he feared journalists would exploit it to uncover the mistakes of the Vietnam war. If Johnson was obliged to agree, certainly Bush wishes Johnson had never signed.”
Journalists have used the Freedom of Information Act in a number of cases, not just for national security issues. In October 2003, the New York Times uncovered a document indicating cow abattoirs where unable to supervise their performances. A month earlier, The Oregonian daily also published a document obtained after a Freedom of Information request showing workers at the nuclear plant in Hanford were no appropriately protected. That same year, the Orlando Sentinel reported that NASA was aware of technical problems with the Columbia shuttle before it exploded. In April 2005, the Houston Chronicle used the same law to uncover documents indicating that Vice President Dick Cheney took part in a discussion about controlling Iraq’s oil, prior to the September 11, 2001 attacks.
Paisley Dodds, who currently heads AP’s bureau in London, told Asharq al Awsat, “Any journalist can write to the Defense Department or any other federal agency, to obtain official documents and information, according to the Freedom of Information Act.” She added that AP’s lawyers in New York City had filed the request. After almost two years of time wasting, defiance and rejection, the US military was obliged last week to reveal the names of detainees in Guantanamo Bay. Paisley refused to comment on her “victory” and asked we contact her superiors in New York for comment.
For his part, David Tomlin, assistant general counsel for the news organization, said, “We, of course, feel satisfied. We did not do more than do our job, which is to notify the American people of important information. These names should have been published a long time ago.” But the military released names as a simple list, but are included within a 6000 pages of documents posted on the Pentagon’s website, which makes it more difficult to specify. The campaign against the US military’s secrecy would continue and “this is not the end of the case”, Tomlin added.
This was not AP’s first victory; in 2005, the Pentagon was forced to publish a secret report on the treatment of prisoners in Guantanamo but all the names were blacked out. The nearly 2000 page documents included excerpts from the testimony of prisoners and revealed that sex had been used by guards at Camp X-Ray to punish detainees: a female interrogator wore a short dress in an attempt to arouse the detainees and another female investigator took off her military uniform in front of a Saudi detainee.
Despite the documents being released in May last year, Paisley and Tomlinson continued to press ahead with the case and demand the names and identities of detainees be made public. “Detainees want the world to know they are detained”, AP’ assistant general counsel said. “Their detention should not be a secret.”
The other person to have fought off the Pentagon’s attempt to release the names of an estimated 500 detainees in Guantanamo Bay was U.S District Judge Jed Rakoff in New York. He sided with AP and refused government charges that the publication would “obstruct the war on terror”.
The US government’s lawyers argued, unsuccessfully, “the secrecy and privacy of detainees should be taken into account and the release of their names would expose the detainees’ families and friends to embarrassment and revenge acts.”
In August last year, Judge Rakoff ordered the U.S government to ask each detainee whether he or she wanted personal identifying information turned over to AP as part of the lawsuit. Of the 317 detainees who received the form, 63 said yes, 17 said no and 35 retuned the form without answering. 202 declined to return the form.
Committed to the public’s right to known, Judge Rakoff had previously rejected the government’s arguments that the Freedom of Information Act could not be applied in this case as well as the arguments about privacy concerns and the fear that releasing this information would violate the prisoners’ privacy or subject them to retaliatory action by terrorist group. For four years, the U.S military had claimed that the names of detainees at Guantanamo should not be published because it would “threaten U.S national security”.
Legal observers and political commentators warned the Bush administration not to politicize the issue and indicated Judge Rakoff was acting according to a 2004 Supreme Court ruling which stated that “United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.”
After a year and a half of controversy, Judge Rakoff ordered the Pentagon to release the identities of hundreds of detainees in Camp X-Ray. Instead of providing a list of names, the military released more than 5000 pages of unedited transcript to AP from at least 319 hearings in Guantanamo Bay. This prompted the news agency’s lawyer to declare, “This is not the end of the case”.