August 20, 2009 - The American Civil Liberties Union and the New York Civil Liberties Union filed a lawsuit today demanding disclosure of a legal memo from the Justice Department Office of Legal Counsel (OLC) that reportedly addresses the constitutional rights that Guantánamo detainees could legally claim during military commission proceedings in the U.S. The memo, drafted in May 2009, also reportedly addresses the admissibility of statements obtained through coercion in those proceedings. The ACLU filed the lawsuit in the U.S. District Court for the Southern District of New York under the Freedom of Information Act (FOIA).

"The Obama administration's continued support of the failed military commission system is at the center of much public attention and controversy," said Jonathan Hafetz, staff attorney with the ACLU National Security Project. "The release of the OLC memo on detainee rights would help to clarify this administration's position on military commissions and deepen the public's understanding of this important issue."

David Barron, Acting Assistant Attorney General of the OLC, sent the memo to a Justice Department task force on May 4, 2009. The existence of the memo was made public in a June 29 Wall Street Journal article that asserted that the memo's conclusions "could alter significantly the way the commissions operate." The article also discussed the memo's position that federal courts would find coerced evidence inadmissible under the Constitution in military commission trials.

"As the Obama administration prepares to close Guantánamo and considers the fate of the detainees who are still there, it is important to inform the American people about the procedures that the government will be utilizing in determining the legal status of the detainees and for the government to discuss openly its understanding of the constitutional principles that will bear upon such procedures," said Arthur Eisenberg, Legal Director of the NYCLU. "While it's encouraging that the administration is attempting to meet the deadline for closing Guantánamo, any new arrangement must respect American values of due process."

The government failed to respond to the ACLU's original FOIA request, and today's complaint seeks to enforce that request and compel the government to turn over the OLC memo.

Attorneys on the case are Hafetz, Eisenberg and Jameel Jaffer of the ACLU.

The ACLU's FOIA complaint is available online at: www.aclu.org/safefree/detention/40788lgl20090820.html

ACLU