Djamel Ameziane v. Barack Obama

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 2009 Decided January 8, 2010

Reissued October 6, 2010

Reissued October 5, 2012

No. 09-5236

DJAMEL AMEZIANE, DETAINEE, GUANTANAMO BAY NAVAL

STATION, GUANTANAMO BAY CUBA,

APPELLEE

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-00392-UNA)

August E. Flentje, Attorney, U.S. Department of Justice,

argued the cause for appellants. With him on the briefs were

Douglas N. Letter and Robert M. Loeb, Attorneys.

J. Wells Dixon argued the cause for appellee. With him

on the brief were Shayana D. Kadidal and Pardiss Kebriaei.

Before: GINSBURG, BROWN and GRIFFITH, Circuit

Judges.

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Opinion for the court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: This case presents another

variation on the detainee theme, raising questions about what

information concerning a detainee’s status can be protected

from public disclosure when the detainee is anxious to reveal

it. These questions arise because the government, having

decided that Djamel Ameziane may be released from

detention at Guantanamo Bay, has sought to designate the

decision of the Guantanamo Review Task Force as

“protected” information under the governing protective order.

The government wants to send Ameziane back to his native

country, Algeria. Ameziane does not want to go. He wants

to use his Task Force transfer decision to aid him in

petitioning venues he deems more attractive, like Canada or

France, for resettlement. The government—fearing that

dozens of detainees going into business for themselves,

utilizing Task Force transfer decisions to make their own best

deals, would interfere with sensitive diplomatic efforts to

relocate large numbers of detainees—moved to protect all

Task Force transfer decisions from premature public

disclosure. The district court sided with Ameziane and the

government appealed. We reverse.

I

Ameziane, an Algerian citizen, has been held at the U.S.

Naval Base at Guantanamo Bay, Cuba since 2002. In 2005,

he filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2241. This action was subject to a protective order

governing common procedural issues in all Guantanamo

habeas cases. See In re Guantanamo Bay Detainee Litig., 577

F. Supp. 2d 143 (D.D.C. 2008) (Protective Order). Under the

Protective Order, “protected” information may not be

disclosed to anyone other than the petitioner’s counsel and the

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court, unless the government authorizes wider disclosure. Id.

at 151 (¶ 35). To designate information as protected, the

government must attempt to reach an agreement with the

petitioner’s counsel, and if that fails, file a motion with the

court. Id. (¶ 34).

On January 22, 2009, the President issued an Executive

Order directing the closure of the Guantanamo detention

facility “as soon as practicable, and no later than 1 year from

the date of this order,” and requiring “[t]he Secretary of State

[to] expeditiously pursue and direct such negotiations and

diplomatic efforts with foreign governments as are necessary

and appropriate to implement this order.” Exec. Order No.

13,492, 74 Fed. Reg. 4897, 4898–99 (Jan. 22, 2009). The

Executive Order also established the Guantanamo Review

Task Force (Task Force) and mandated immediate review of

all detainees to “determine, on a rolling basis and as promptly

as possible . . . whether it is possible to transfer or release the

individuals consistent with the national security and foreign

policy interests of the United States.” Id. at 4899.

Although Ameziane had twice been deemed ineligible for

release, on May 8, 2009, the Task Force issued a decision

approving him for transfer. On June 15, the government filed

a coordinated motion in the subset of Guantanamo habeas

cases involving petitioners who had been issued transfer

decisions, seeking to designate those decisions as “protected”

information. In support of the motion, the government

submitted a declaration by Ambassador Daniel Fried, the

Special Envoy for the Closure of the Guantanamo Bay

Detention Facility. Ambassador Fried explained that if these

petitioners, in an effort to be resettled in European countries

of their choice, all “approach the same small group of

governments at the same time, particularly if they relay

information about formal U.S. government decisions resulting

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from review by the . . . Task Force, it could confuse,

undermine, or jeopardize our diplomatic efforts with those

countries and could put at risk our ability to move as many

[detainees] to safe and responsible locations as might

otherwise be the case.” Fried Decl. ¶ 5.

At a hearing on June 30, the district court denied the

government’s motion to protect Ameziane’s Task Force

transfer decision. The court concluded the government had

failed to make a “particularized showing” because the Fried

Declaration had “nothing . . . to do with this case in

particular,” and protested that allowing Ameziane to disclose

“this one piece of information” to foreign governments would

not “interfere in anything.” Transcript of Motion Hearing at

29, Ameziane v. Obama, No. 05-cv-392 (D.D.C. June 30,

2009) (June 30 Tr.). The court accused the government of

“stand[ing] in the way of any possible, possible hope of

something better for [Ameziane]” by seeking to repatriate him

to Algeria rather than allowing him to use his Task Force

transfer decision to advocate for resettlement in Canada or

France. Id. at 30. The court issued a written order including

a one-week stay. Order, Ameziane v. Obama, No. 05-cv-392

(D.D.C. June 30, 2009) (June 30 Order).

On July 7, the government sought to extend the stay for

an additional week; the district court rejected the request, see

Transcript of Motion Hearing at 28–29, Ameziane v. Obama,

No. 05-cv-392 (D.D.C. July 7, 2009); and the government

filed an interlocutory appeal and moved this court for an

emergency stay of the district court’s order.

The district court issued a written opinion explaining the

refusal to extend its stay. Mem. Op. & Order, Ameziane v.

Obama, No. 05-cv-392 (D.D.C July 8, 2009) (July 8 Op.).

The court stated “[t]he government’s rationale for protecting

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[Ameziane’s] clearance status [was] riddled with

contradictions.” Id. at 5. It disregarded the Fried Declaration

because it “provide[d] no specificity as to why Ameziane’s

cleared status must be protected or why his counsel should be

prohibited from using the information to advocate for his

resettlement to other countries.” Id. at 6. The court was not

“convinced” by the government’s “speculative and

conclusory” national security concerns. Id. at 7. “Most

importantly,” the court determined, “the record demonstrates

that protecting [Ameziane’s] clearance status would serve

little purpose” because “both the Red Cross and [his] brother

in Canada are already aware that [he] has been cleared for

transfer.” Id.

On July 16, we granted a stay pending appeal.

II

We first consider whether we lack subject-matter

jurisdiction because the dispute is moot or, alternatively,

because the district court’s order was not a final decision from

which the government could immediately appeal.

A

Ameziane argues this appeal is moot because the Red

Cross and his brother in Canada already know he has been

cleared for transfer. “‘Federal courts lack jurisdiction to

decide moot cases because their constitutional authority

extends only to actual cases or controversies.’” Larsen v.

U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quoting Iron

Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)). “[A]

case is moot when the issues presented are no longer ‘live’ or

the parties lack a legally cognizable interest in the outcome.”

Powell v. McCormack, 395 U.S. 486, 496 (1969). However,

6

a case is not moot unless it is “‘impossible for the court to

grant any effectual relief whatever.’” Cody v. Cox, 509 F.3d

606, 608 (D.C. Cir. 2007) (quoting Church of Scientology of

Cal. v. United States, 506 U.S. 9, 12 (1992) (internal

quotation marks omitted)).

Although the Red Cross and Ameziane’s brother may

claim to know that Ameziane has been cleared for transfer,

the government has not officially acknowledged his cleared

status. “[I]n the arena of . . . foreign relations there can be a

critical difference between official and unofficial

disclosures.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.

1990); see also Afshar v. Dep’t of State, 702 F.2d 1125, 1130

(D.C. Cir. 1983) (“[E]ven if a fact . . . is the subject of

widespread media and public speculation, its official

acknowledgment by an authoritative source might well be

new information that could cause damage to the national

security.”). Presumably, nothing prevents the Red Cross or

Ameziane’s brother—or any other third party not bound by

the Protective Order—from telling foreign governments that

Ameziane has been cleared for transfer by the U.S.

government. However, in the absence of any official

acknowledgement, these foreign governments would be left

guessing as to whether such information is true. See Military

Audit Project v. Casey, 656 F.2d 724, 743–45 (D.C. Cir.

1981). Whereas third-party hearsay is likely to be dismissed

as mere rumor or self-serving speculation, foreign

governments are substantially more likely to rely on an

official statement by the U.S. government.

Thus, this appeal is not moot if the district court’s order

would result in an official acknowledgement of Ameziane’s

cleared status. It would. The district court ordered, first,

“that petitioner’s motion to unseal” the “government’s

approval of petitioner[] for transfer and all related or

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derivative documents” would be granted; second, “that the

government’s motion to designate petitioner’s clearance for

transfer . . . as ‘protected’ information” would be denied; and

third, that “petitioner and his counsel may publicly disclose

that he has been approved for transfer from Guantanamo by

the . . . Task Force.” June 30 Order at 1–2.

As an initial matter, in this court, Ameziane has decided

not to defend much of the district court’s order: “[Ameziane]

does not seek to disclose the District Court pleadings or

transcripts regarding this issue, or the parties’ appellate briefs,

or any information regarding the government’s attempts to

repatriate him to Algeria. . . . [A]ll that is at issue in this

appeal, is whether Ameziane ‘may publicly disclose that he

has been approved for transfer from Guantanamo by the . . .

Task Force.’” Appellee’s Br. 17 (quoting June 30 Order at 2).

Accordingly, since both parties agree “the District Court

pleadings [and] transcripts regarding this issue,” “the parties’

appellate briefs,” and “any information regarding the

government’s attempts to repatriate him to Algeria” should be

protected, id., the district court’s order is reversed to the

extent it unsealed and declined to protect such material.

There remains one key document that, if unsealed, would

clearly constitute an official acknowledgement of Ameziane’s

cleared status: the district court order itself. However, there is

some ambiguity whether Ameziane seeks to unseal this order.

He quotes from the order in arguing his entitlement to

“‘publicly disclose that he has been approved for transfer,’”

Appellee’s Br. 17 (quoting June 30 Order at 2), thus

suggesting Ameziane’s counsel intends to point to the order

itself in negotiations with foreign governments, perhaps to

corroborate his claim that Ameziane has been cleared for

transfer.

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Yet, at oral argument, Ameziane’s counsel stated he was

“not seeking the unsealing of records.” Transcript of Oral

Argument at 15:13–16. It is not clear whether this reference

to “records” included the district court order, or whether it

referred only to the documents listed in Ameziane’s brief and

discussed above. But even assuming the district court order

will remain sealed, this appeal is not moot. Counsel stated

unambiguously that he sought “to be able to say that Mr.

Ameziane has been approved for transfer by the Task Force.”

Id. at 15:22–25, 16:1–3. Ameziane’s counsel is an officer of

the court, subject to the serious ethical obligations inherent in

that position. Although foreign governments would be

unlikely to rely on a claim by a third party—or even by

Ameziane himself—that Ameziane has been cleared for

transfer, the same is not true with respect to a similar

representation made by counsel. As an officer of the court,

any statement by counsel that the Task Force has cleared

Ameziane for transfer would be tantamount to, and a

sufficient substitute for, official acknowledgement by the U.S.

government. Accordingly, this appeal is not moot because we

can grant “effectual relief” by reversing the district court and

thereby preventing official acknowledgement of Ameziane’s

cleared status—either from the order itself, or from

disclosures by counsel that the order permits him to make.

B

Nor do we lack jurisdiction because the district court’s

order was not “final.” Courts of appeals have jurisdiction of

appeals from “all final decisions” of district courts. 28 U.S.C.

§ 1291. Pursuant to the collateral order doctrine, an

interlocutory order qualifies as “final” under § 1291 if it (1)

conclusively determines the disputed question, (2) resolves an

important issue completely separate from the merits of the

action, and (3) is effectively unreviewable on appeal from a

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final judgment. See Will v. Hallock, 546 U.S. 345, 349

(2006).

These conditions, though “stringent,” see id., are satisfied

in this case. As Ameziane concedes, the first requirement is

satisfied because the district court’s order conclusively

determined that his Task Force transfer decision would not be

protected under the Protective Order. Second, this issue is

entirely separate from the merits of Ameziane’s habeas

action. The public disclosure of Ameziane’s Task Force

transfer decision has no relevance to the underlying question

on the merits, i.e., whether he has been lawfully detained.

And given the foreign relations and national security concerns

raised in the Fried Declaration, we have no difficulty finding

this issue sufficiently “important” to warrant immediate

appellate review. See Al Odah v. United States, 559 F.3d 539,

543–44 (D.C. Cir. 2009) (holding that order mandating

disclosure of classified information to habeas petitioners’

counsel was “an important issue entirely separate from the

merits of this case”). Finally, the district court’s order would

be effectively unreviewable on appeal from a final judgment

because once the government’s official acknowledgement of

Ameziane’s cleared status is revealed publicly, the disclosure

cannot be undone. See id. at 544. Thus, we have subject-

matter jurisdiction.

III

While we review a district court’s decision to seal or

unseal documents, or to issue or refuse to issue a protective

order, for abuse of discretion, we review de novo any errors

of law upon which the court relied in exercising its discretion.

See, e.g., United States v. Mejia, 448 F.3d 436, 456–57 (D.C.

Cir. 2006) (reviewing issuance of protective order de novo

rather than for abuse of discretion because court applied

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incorrect legal standard); United States v. El-Sayegh, 131

F.3d 158, 160 (D.C. Cir. 1997) (reviewing decision to unseal

guilty plea de novo rather than for abuse of discretion because

court’s decision was premised on legal error); see also Koon

v. United States, 518 U.S. 81, 100 (1996) (“A district court by

definition abuses its discretion when it makes an error of

law.”). Here, the district court’s explanations indicate de

novo review is appropriate.

A

It is “our customary policy” to accord “deference to the

President in matters of foreign affairs.” Jama v. Immigration

and Customs Enforcement, 543 U.S. 335, 348 (2005). And

“consistent with our rule of deference, it is within the role of

the executive to acquire and exercise the expertise of

protecting national security. It is not within the role of the

courts to second-guess executive judgments made in

furtherance of that branch’s proper role.” Bismullah v. Gates,

501 F.3d 178, 187–88 (D.C. Cir. 2007) (internal quotation

marks omitted), vacated on other grounds, Gates v.

Bismullah, 128 S. Ct. 2960 (2008).

But detainee cases are unique. Because of the

independent role carved out for the judiciary, and our

concomitant obligation to balance the needs of the

government against the rights of the detainee, and also to

preserve to the extent feasible the traditional right of public

access to judicial records grounded in the First Amendment,

we exercise greater caution in deciding to defer. See, e.g.,

Boumediene v. Bush, 128 S. Ct. 2229, 2276–77 (2008). In the

context of requests by the government to protect sensitive

information, we have explained the showing the government

must make to trigger judicial deference.

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In Bismullah v. Gates, we rejected the government’s

assertion of unilateral authority to designate information as

“protected” and held “the Government must give the court a

basis for withholding . . . from public view” nonclassified

information it seeks to protect. 501 F.3d at 188. In Parhat v.

Gates, we explained that a valid “basis for withholding”

would include, at a minimum, a “specific,” “tailored”

rationale for protecting a general category of information, and

a precise designation of each particular item of information

that purportedly “falls within the categor[y] . . . described.”

532 F.3d 834, 853 (D.C. Cir. 2008). In other words, the

government first must demonstrate what kind of information

requires protection and why, and then must show exactly what

information in the case at hand it seeks to protect.

In Parhat, the government failed to satisfy this twofold

showing. The government began by describing two broad

categories—“(1) any names and/or identifying information of

United States Government personnel, and (2) any sensitive

law enforcement information”—and provided a “rationale for

protection [that was] brief” and “relie[d] solely on spare,

generic assertions of the need to protect information in the

two categories.” Id. at 852–53 (internal quotation marks

omitted). For instance, the government merely asserted in

conclusory fashion that disclosing information in the first

category would “heighten[]” the risks to the safety of U.S.

government personnel, and that disclosing information in the

second category would “harm the Government’s ongoing law

enforcement activities related to the global war against al

Qaeda and its supporters.” Id. at 852. These “generic claims”

failed to satisfy the government’s burden of providing “an

explanation tailored to the specific information at issue.” Id.

at 853.

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Second, the government consigned all government

personnel mentioned in the record to the first category, and

simply marked documents “Law Enforcement Sensitive” or

“LES” to designate the second category. Id. at 852–53. We

found both sets of designations imprecise and overinclusive.

For instance, “some ‘U.S. Government personnel’ . . . [were]

so publicly associated with Guantanamo that protected status

would plainly be unwarranted.” Id. at 853. And we noted

that the term “Law Enforcement Sensitive” was so vague that

“at least seven different federal agencies define[d] it

differently.” Id. Thus, even if the government had provided

sufficient rationales for protecting information in the two

categories, it nonetheless failed to make its designations with

sufficient precision to allow the court to “determine whether

the information it ha[d] designated properly f[ell] within the

categories it ha[d] described.” Id.

Here, the district court failed properly to apply Parhat’s

two-part standard. Rather than evaluating the government’s

proposed category and proffered rationale, and then

determining whether Ameziane’s Task Force transfer decision

fell into that category, the court faulted Ambassador Fried for

“provid[ing] no specificity as to why Ameziane’s cleared

status must be protected or why his counsel should be

prohibited from using the information to advocate for his

resettlement in other countries.” July 8 Op. at 6 (emphasis

added). Similarly, in its oral ruling, the court found the

government had failed to make a “particularized showing”

because the Fried Declaration had “nothing . . . to do with this

case in particular.” June 30 Tr. at 29. However, Parhat did

not require the government to provide a rationale for

protection that was so specific as to preclude any generalized

categorization. Rather, Parhat left room for categorized

requests in appropriate circumstances. Of course, the

narrower the category for which the government seeks

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protection, the more likely the government’s rationale will be

sufficiently tailored. But the district court erred by construing

Parhat to require a specific and distinct rationale addressed to

each detainee’s situation.

There is a sharp contrast between the government’s

showing in this case and its showing in Parhat. Unlike the

two broad categories outlined in Parhat, here the government

requested protection for a single, limited category: Task Force

transfer decisions and all related or derivative documents.

See July 8 Op. at 2. And unlike the “spare, generic

assertions” with which the government justified its request in

Parhat, 532 F.3d at 853, here the government provided a

detailed rationale tailored specifically to the information in

the narrow category.

The Fried Declaration logically explained why failing to

protect Task Force transfer decisions was likely to harm the

government’s foreign relations and national security interests.

To close down Guantanamo, as Executive Order 13,492

commands, the government faces not just the task of deciding

which detainees may be released, but also the formidable

hurdle of determining where to send those who are cleared for

transfer. Fried Decl. ¶¶ 1–4. Because of U.S. policies barring

the transfer of detainees to countries where they face torture,

“there are certain individuals who have been (or will be)

approved for transfer out of U.S. custody but who . . . cannot

be safely and/or responsibly returned to their home

countries.” Id. ¶ 3. At the same time, since our foreign

allies—particularly in Europe, where many detainees wish to

be sent—have limited “capacity to absorb detainees . . ., it is

important to the U.S. goal of closing Guantanamo to be able

to focus diplomatic discussions with those countries on

detainees for whom there is a compelling reason not to return

them to their home countries.” Id. ¶ 5. This goal would be

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frustrated if “dozens of detainees approach the same small

group of governments at the same time, . . . relay[ing]

information about formal U.S. government decisions resulting

from review by the . . . Task Force.” Id. A “coherent

diplomatic strategy”—a necessity if the government is going

to “move as many [detainees] to safe and responsible

locations” as possible—requires that the government “retain

the prerogative to ‘speak with one voice.’” Id. ¶¶ 4–6. But

permitting persons not authorized to speak on behalf of the

government to “convey[] official U.S. Government

information to a foreign country regarding the transfer status

of a particular petitioner . . . has the potential to create

confusion and mixed messages.” Id. ¶ 6. Because this

detailed rationale was tailored specifically to the narrow

category of information for which the government requested

protection, the government satisfied the first showing required

by Parhat.

The government also satisfied the second part of the

Parhat standard because we face no difficulty “determin[ing]

whether the information [the government] has designated

properly falls within the categor[y] it has described.” Parhat,

532 F.3d at 853. The government designated for protection a

precise item of information—Ameziane’s transfer decision—

that indisputably falls into the narrow category of Task Force

transfer decisions. Indeed, this case fits squarely within the

government’s rationale for protection. Although the

government has determined Ameziane can safely be

repatriated to Algeria, he is seeking to obtain resettlement in

Canada or France, and wishes to utilize his Task Force

transfer decision to aid him in petitioning these foreign

governments. As the Fried Declaration explains, permitting

Ameziane to make such use of the government’s official

information would interfere with the Secretary of State’s

efforts to focus the Canadian and French governments on

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accepting detainees who, unlike Ameziane, cannot safely be

repatriated to their home countries. Thus, the government

met its burden for protection under Parhat.

B

Because the government satisfied Parhat, the district

court was required to defer to the government’s assessment of

the harm to foreign relations and national security that would

result from officially disclosing Ameziane’s Task Force

transfer decision. As we explained in Fitzgibbon, the failure

to give deference when it is due is error. 911 F.2d at 755.

There, pursuant to a Freedom of Information Act request, the

district court ordered the CIA to disclose information about a

former CIA station location, over the CIA’s objection that

such disclosure would cause harm to national security. Id. at

758–59. We faulted the district court for “essentially

perform[ing] its own calculus as to whether or not harm to the

national security . . . would result from disclosure” of the

information, and held it should have “accord[ed] substantial

weight and deference” to the Executive Branch’s

“determination of possible harm.” Id. at 766. Thus,

“declin[ing] to adopt the abuse-of-discretion review that [the

plaintiff] urge[d] upon us,” we reversed. Id.

Here, the district court simply declared:

I don’t understand how [declining to protect

Ameziane’s Task Force transfer decision] will

interfere in anything. . . . I don’t know why in the

world the only thing that the government can see is

Algeria here. . . . But if [Ameziane] is able to do

better than what the government is doing, I say fine.

He has now been there seven years thanks to the

United States government. Why they want to stand

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in the way of any possible, possible hope of

something better for him baffles me. . . . This

gentleman has the perhaps glimmer of hope that

something could get slightly better and he won’t be

prosecuted again in Canada. Why should we stand in

the way after the way we’ve treated him for these

seven years?

June 30 Tr. at 29–30; see also July 8 Op. at 7 (rejecting as

“speculative and conclusory” government’s “arguments that

the release of [Ameziane’s] clearance status would cause

significant harm to the interests of the government”). It is not

entirely clear why the district court found the Fried

Declaration so baffling. As discussed above, it provided a

detailed and logical explanation of the impact of premature

disclosure on the government’s foreign relations and national

security interests. Parhat did not free courts to substitute

their own policy judgments for those of the executive. The

district court was not entitled to toss the Fried Declaration

aside merely because it disagreed with its premise. Deference

required acknowledging that the State Department, not the

judiciary, is tasked with undertaking the diplomatic

negotiations necessary to close down Guantanamo, and that

the Executive Branch officials bearing this responsibility

possess far greater resources and aptitude than the judiciary

for determining what will aid, and what will undermine, their

mission. The district court’s inability to “understand” how

permitting Ameziane to disclose his Task Force transfer

decision to foreign governments “will interfere in anything,”

June 30 Tr. at 29, did not license the court to “perform[] its

own calculus as to whether or not harm to the national

security . . . would result from [the] disclosure,” Fitzgibbon,

911 F.2d at 766.

17

In particular, the district court erred by elevating

Ameziane’s interest in being resettled in a country of his

choice over the government’s interest in repatriating or

resettling as many detainees as possible as quickly as

practicable in order to close Guantanamo as the President

directed. Such prioritizing was an executive prerogative, and

it was “not within the role of the [district] court[] to second-

guess executive judgments made in furtherance of that

branch’s proper role.” Bismullah, 501 F.3d at 187–88

(internal quotation marks omitted). Crucially, this does not

mean Ameziane never will have the opportunity to share his

Task Force transfer decision with Canada, France, or other

countries he wishes to petition for resettlement. Rather, it

means only that those foreign governments must contact the

U.S. government and obtain the information through official

channels. In this way, Ameziane’s eagerness to be sent to a

country of his choice will not undermine the Executive

Branch’s prerogative to “speak with one voice” in diplomatic

affairs. See Fried Decl. ¶ 6. The failure to accord

“substantial weight and deference,” Fitzgibbon, 911 F.2d at

766, to the government’s assessment of its foreign relations

and national security interests was error.

C

Finally, the district court erred by basing its ruling on an

inappropriate factor. The court held that the “[m]ost

important[]” factor weighing against the government’s

request for protection was that “protecting [Ameziane’s]

clearance status would serve little purpose” because “both the

Red Cross and [his] brother in Canada are already aware that

[he] has been cleared for transfer.” July 8 Op. at 7. The first

problem with the district court’s approach is the incentive it

gives detainees to violate the Protective Order. Why honor

confidentiality restrictions imposed by the court if ignoring

18

them will be rewarded? Moreover, as discussed above, there

is a distinction between third parties claiming to have

knowledge of certain information, and an official

acknowledgement of the truth of that information by the U.S.

government. See Fitzgibbon, 911 F.2d at 765 (observing the

“critical difference between official and unofficial

disclosures” in the “arena of . . . foreign relations”); Afshar,

702 F.2d at 1130 (noting that “official acknowledgment by an

authoritative source” of a fact that “is the subject of

widespread media and public speculation” may “be new

information that could cause damage to the national

security”). For the same reason that a “public record” is

generally admissible as evidence, see FED. R. EVID. 803(8),

while other hearsay is not, see FED. R. EVID. 802, an official

acknowledgment of a fact is far more reliable than a third

party’s statement of the same fact. This is doubly true in the

world of diplomatic relations.

Indeed, any suggestion the government’s official

acknowledgment—either from the district court’s order itself

or from Ameziane’s counsel in his capacity as an officer of

the court—would not produce a material change in

circumstances is belied by Ameziane’s vigorous defense of

the district court’s ruling. It is evident that while the

Canadian and French governments would pay scant attention

to Ameziane’s brother’s claim that Ameziane has been

cleared for transfer, they would be substantially more

interested in hearing this same news from a person or entity

speaking on behalf of the U.S. government. Thus, while it

would have been proper to consider whether the government

already had publicly acknowledged Ameziane’s clearance for

transfer, it was error to rely on third parties’ purported

knowledge of his cleared status.

19

IV

For the foregoing reasons, the government’s motion to

designate Ameziane’s Task Force transfer decision as

“protected” information under the Protective Order should

have been granted. Thus, the order of the district court is

Reversed.