One of the Freedom of Information Act lawsuits I am fighting against the government with The New York Times is seeking the factual sections about 240 dossiers about the Guantanamo detainees who remained at the wartime prison when President Obama took office in 2009. Obama created a six-agency task force that went back over the intelligence about each man, and in many cases it found that some of what had been in earlier Bush-era threat assessment dossiers — the files that Chelsea Manning leaked via WikiLeaks — was inaccurate. but the Obama-era dossiers, which were the basis of the lists of those recommended for transfer, prosecution, or continued detention, have not been made public. I have argued in this essay, whose headline I do not like, that it makes sense for policy reasons for the government to make these dossiers public, since much of the information is already public via the Manning disclosures and if the government now believes some of that information was inaccurate, it should correct the record.
The government has now filed its response to the FOIA case, asking Judge Berman to dismiss the case. The main thrust of its argument is that even the factual matters should fall under the deliberative process exemption because the task force’s selection of facts was a deliberative choice. Plus classified info, etc. We’ll argue, of course, that the factual sections are distinct from the policy recommendation sections and that the government relied upon the dossiers in putting together its recommendation lists and so waived the privilege.
Two things are especially notable in the government’s response. First, it includes the task force’s guidelines, which I do not believe have previously been made public. Second, it includes a Vaughn index describing the dossier about each detainee, including the number of pages each man’s file has.