Monday, October 11, 2010

In Gitmo Opinion, Two Versions of Reality

In Gitmo Opinion, Two Versions of Reality


by Dafna Linzer


October 8, 2010


This story was co-published with The National Law Journal.


When Judge Henry Kennedy Jr. ordered the release of a

Guantanamo Bay detainee last spring, the case appeared

to be a routine setback for an Obama administration

that has lost a string of such cases.


But there turns out to be nothing ordinary about the

habeas case brought by Uthman Abdul Rahim Mohammed

Uthman, a Yemeni held without charges for nearly eight

years. Uthman, accused by two U.S. administrations of

being an al-Qaida fighter and bodyguard for Osama bin

Laden, is among 48 detainees the Obama administration

has deemed too dangerous to release but "not feasible

for prosecution."


A day after his March 16 order was filed on the court's

electronic docket, Kennedy's opinion vanished. Weeks

later, a new ruling appeared in its place. While it

reached the same conclusion, eight pages of material

had been removed, including key passages in which

Kennedy dismantled the government's case against Uthman.


In his first opinion, Kennedy wrote that one government

witness against Uthman had been diagnosed by military

doctors as "psychotic" with a mental condition that

made his allegations against other detainees

"unreliable." But the opinion the public sees makes no

mention of the man's health and discounts his testimony

only because of its inconsistencies.


The alterations are extensive. Sentences were

rewritten. Footnotes that described disputes and

discrepancies in the government's case were deleted.

Even the date and circumstances of Uthman's arrest were

changed. In the first version, the judge said Uthman

was detained on Dec. 15, 2001, in Pakistan by Pakistani

authorities. Rewritten, Kennedy said in the public

opinion that Uthman admitted being captured "in late

2001 in the general vicinity of Tora Bora," the cave

complex where bin Laden was thought to be hiding at that time.


The creation of the additional opinion stemmed from a

mishap inside the Justice Department: Kennedy's first

opinion was accidentally cleared for public release

before government agencies had blacked out all the

classified information it cited.


While the government privately took responsibility for

the error, it initially refused to correct it. Two

people familiar with the discussions said prosecutors

in the Justice Department's Civil Division gave Kennedy

a choice: his entire decision would remain classified

or he could write a new version that did not reference

classified evidence.


Justice Department sources offered a different account.

They said the department later relented and gave

Kennedy a properly redacted version of the opinion, in

which classified material had been blacked out. The

sources said this opinion was meant to be published.

But for reasons that remain unclear, the edited opinion

became the starting point for the creation of an

entirely new version.


Matthew Miller, a spokesman with the Justice

Department, said "the department's practice in all of

these cases is to propose release of a properly

redacted opinion."


The second opinion, drafted after a contentious

exchange between Kennedy and the prosecutors, did not

refer to the earlier version and gave no indication

material had been removed.


Legal scholars and classification experts said the

drafting of a second opinion was a deception. All

previous opinions in Guantanamo habeas cases have noted

when material has been blacked out or removed to

protect security.


Stephen Gillers, who teaches legal ethics at New York

University School of Law, said Kennedy may well have

had a legitimate concern about "national security issues."


"But that concern then inspired him to participate in

the creation of a parallel universe that fools everyone

except a small circle of judges. We don't allow the

justice system to create false impressions," Gillers said.


ProPublica obtained the original version of Kennedy's

opinion when it appeared briefly in the court record

and conducted a line-by-line comparison with what was

published five weeks later. That comparison,

highlighting information that was removed, can be found here.


Reporting for this story was complicated by the fact

that much of the evidence is classified, and judges,

lawyers and prosecutors are barred from discussing most

aspects of the litigation. But an examination of the

opinions and additional documents, as well as

interviews with government and intelligence officials,

former military prosecutors and key players in the

habeas cases, makes it possible for the first time to

publicly examine the evidence against a detainee

designated for indefinite detention.


To justify Uthman's incarceration, the government

relied on statements from five current or former

detainees who were previously discredited by judges in

other cases, questioned by internal Obama

administration assessments or found unreliable by

military psychiatrists because they were mendacious,

mentally ill or subjected to torture.


Kennedy's first opinion reveals that some of the

government's evidence came from a detainee who

committed suicide at Guantanamo three years ago after

months of hunger strikes. In the second opinion, the

detainee's name is concealed, making it impossible for

the public to know he is dead.


DOJ's Miller said witness testimony is thoroughly

reviewed before it is presented. "In every habeas case

where we ask the court to rely upon detainee

statements, we do so because we believe courts can and

should consider their accounts based on the totality of

the evidence," Miller said.


The Justice Department has appealed Kennedy's ruling

and officials there declined to say what they might do

if the government does not prevail.


Uthman, according to senior government officials, is on

the secret list of 48 Guantánamo detainees who the

Obama administration designated for indefinite

detention and, officials said, he is the first of those

men to win his habeas petition.


Further complicating matters, Uthman hails from Yemen

-- a country the White House has deemed too unstable to

handle such a transfer. Should he send Uthman home,

President Obama risks a fierce political backlash from

Republican lawmakers eager to portray the president as

weak on terrorism.


Disclosure of the Uthman case comes at a pivotal moment

in the government's complicated efforts to prosecute

detainees and close the prison at Guantanamo Bay, Cuba.

On Oct. 6, a federal judge in New York barred the

government from using its main witness against a

terrorism defendant because the information that led

investigators to the witness was obtained through



Botched Classification


When Kennedy, who serves on the U.S. District Court for

the District of Columbia, ruled in February that Uthman

was being improperly detained, his 27-page opinion was

turned over to a court security officer for classification review.


The judges themselves have very little insight into the

process and no sway over what is redacted. Government

security officials review filings in the habeas

litigation and other cases involving classified

evidence and remove sensitive information.


In the Uthman case, that clearance process took three

weeks. Kennedy's decision was stamped "Redacted," by

the court's security officer and returned to his

chambers on March 16. The deletions were minimal. For

the first 16 pages, the only word blacked out was

"secret," stamped at the top and bottom of each page.


Kennedy's clerk added the document to the electronic

court file late in the day. Twenty-five hours later,

the security office sent out urgent notices to

attorneys and the judge that the opinion had not been

ready for release and needed additional deletions. The

decision was promptly removed from the public docket.


In a closed hearing in his courtroom four days later,

Kennedy lashed out at the government for releasing

classified information. He and Justice Department

attorneys then argued over what to do, according to

three sources familiar with the discussion.


Kennedy insisted that the reasoning behind his first

habeas ruling be made public. But the Justice

Department resisted releasing it in redacted form,

arguing that blacked out portions would call attention

to the exact material the government wanted to conceal.


With Uthman slated for indefinite detention, the stakes

were high.


During the next month, government lawyers scoured the

Internet for the original decision; the legal database

Westlaw was asked to remove it from archives; defense

attorneys were instructed to destroy their electronic copies.


Even the court docket was altered. When the opinion was

originally posted on March 16, the docket noted

Kennedy's grant of the writ of habeas corpus to the

petitioner. Today, the entry for March 16 simply reads:

"Document Entered In Error Erroneously."


Kennedy ordered the Justice Department to explain how

the information was released and to suggest solutions.

In the written response, according to three people who

saw it, the department took responsibility for the

error. Kennedy rejected the government's initial

attempt to keep the opinion classified, insisting on

other options, according to three people with knowledge

of the matter.


One Justice Department source said the department

relented, gave Kennedy a properly redacted copy of his

opinion, and expected him to publish it. But two others

said no such intention was conveyed to Kennedy.


Classification experts could not recall another case in

which a second decision was secretly created.


"Reconstituting and replacing a judicial opinion

without public notice is active deception," said Steven

Aftergood, a classification expert with the Federation

of American Scientists in Washington. "There is a role

for classification and there are things that need to be

redacted, but there is never a justification for

deception in the judicial process and that's what this

is," Aftergood said, after reviewing both versions of

Kennedy's ruling in the Uthman case.


Two senior officials in the Obama administration and

two others with direct involvement in habeas cases were

surprised to learn that Kennedy's final opinion was a

different version than the original.


Changing the Record


Uthman was 21 years old and traveling with about 30

other men when he was taken into custody by Pakistani

police in the town of Parachinar, near the Afghan

border. It was Dec. 15, 2001, and U.S. troops were in

the middle of a five-day battle against an al-Qaida

stronghold known as Tora Bora, where bin Laden was

believed to have taken shelter. Parachinar and Tora

Bora are 12 miles apart but separated by a treacherous

mountain range that takes two to three days to traverse.


The government maintains that Uthman was in Afghanistan

to fight for bin Laden; Uthman has claimed he went

there to teach the Quran to children. Some facts of his

story are not in dispute, some critical ones are. They

look different depending on which of Kennedy's two

opinions you read.


Kennedy's original opinion noted that Uthman was seized

in Parachinar; that he reached the town after an eight-

day trek from the Afghan town of Khost, nowhere near

Tora Bora; and that his journey to Pakistan began

around Dec. 8, 2001. Those facts make it difficult to

portray Uthman as a fighter in a battle that took place

between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes

in the original opinion note that the government does

not contest that Uthman was taken into custody in Parachinar.


Both were removed in the second opinion and Kennedy

substituted wording to write instead that Uthman

admitted he was seized "in late 2001 in the general

vicinity of Tora Bora, Afghanistan."


The intent of this editing may have been to conceal the

role of the Pakistanis in capturing al-Qaida fighters

although those details were long ago declassified. But

the effect was to link Uthman more closely to the

retreat of bin Laden and his inner circle through Tora Bora.


It is unclear precisely what restrictions or

classification requests guided Kennedy's alterations.

Neither the judge nor the Justice Department would say.


Gillers said such editing has an effect on public

opinion, even when it doesn't change the outcome of the case.


"The ability to influence Kennedy's opinion gives the

government a public relations advantage," Gillers said.

"These battles are fought outside the court system as

well as within it."


Another advantage has been the government's ability to

largely conceal the identities of its witnesses.


In ordinary federal proceedings, from mob cases to

white-collar crime, prosecutors would be loath to

attempt such strategies because repeated use of a

discredited witness would provide a significant opening

to defense attorneys. In the habeas cases, it is

difficult for defense lawyers and judges to learn of

the roles played by flawed witnesses in previous cases.


The issue arose in a separate habeas case in May 2009,

when Judge Gladys Kessler of the U.S. District Court

for the District of Columbia noted that a government

witness had been diagnosed by Guantánamo medical staff

as suffering from "psychosis." In a footnote, she said

she was troubled that the diagnosis had come to her

attention "through the diligent work" of the defense

attorney "and not as a result of the government's

obligation to provide" it.


Attorneys with security clearances can access

classified information the government plans to raise in

court at a secure facility near the Pentagon. But the

material is not easy to use.


The facility is staffed by court security officers and

Justice Department officials who determine what

information the lawyers can remove from the facility,

including, in some cases, their own notes. No

classified information can be shared over the telephone

or Internet, a significant burden for lawyers who

reside outside the Washington area.


"It's monumentally difficult to fight these battles

when the government holds all the cards," said David

Remes, one of the attorneys representing Uthman.

Neither Remes nor Uthman's other Washington attorneys,

including William Livingston at Covington & Burling,

would discuss the details of the Uthman case.


Near Total Secrecy


Although President Obama inherited many aspects of U.S.

detention policy from his predecessor, Guantánamo

detainees have been fighting their detentions in the

U.S. District Court for the District of Columbia almost

entirely on his watch.


The U.S. Supreme Court ruled in June 2008, as Obama was

campaigning for president, that detainees could

challenge their detentions in federal court under the

constitutional doctrine of habeas corpus, which

protects individuals from unlawful imprisonment by the government.


Obama, still a senator then, issued a statement calling

the ruling "an important step toward re-establishing

our credibility as a nation committed to the rule of

law, and rejecting a false choice between fighting

terrorism and respecting habeas corpus. Our courts have

employed habeas corpus with rigor and fairness for more

than two centuries, and we must continue to do so as we

defend the freedom that violent extremists seek to

destroy." The first challenges were decided on Nov. 20,

just three weeks after Obama's election.


Lawyers from the Justice Department's Civil Division

handle the Guantánamo litigation in coordination with

intelligence agencies and the Department of Defense,

which acts as warden of Guantánamo. The litigation

process was built around the government's assertion

that the bulk of the evidence is classified, a claim

that has enabled the government to operate under a

cloak of near total secrecy, with judges and defense

attorneys barred from publicly discussing most aspects

of the litigation. Court filings that reveal details

about the cases undergo classification review before

they are made public.


Intelligence and military officials take the lead in

determining what can be released. As this story was

going to publication, the Justice Department released

an unclassified version of its appeal brief in the

Uthman case. A number of details that were excised from

Kennedy's final opinion appear in the appeals brief.


Justice Department spokesman Miller said, "as a general

matter, Justice Department litigators are not

responsible for classification or declassification

decisions in habeas cases."


Officials at other agencies said they had a fairly free

hand in removing information supplied for the

government's case. "Whenever a court security officer

identifies a document slated for posting on the court's

public docket as potentially containing classified

information, the officer refers that document to

appropriate agencies for classification review," Maj.

Tanya Bradsher, a spokeswoman for the Pentagon, said.


One government official who spoke on the condition of

anonymity acknowledged that the classification process

has been plagued with inconsistencies and that no one

is coordinating the effort. In most declassified habeas

filings, the names of all detainee-witnesses are

removed; in others, a name or two slips past the

redaction process.


Some government-ordered deletions clearly appear

designed to conceal names of confidential informants,

associations with foreign intelligence services and the

identities of certain federal agents. But the Uthman

case shows that many of the deletions go further.


"This censorship has nothing to do with protecting

'national security' and everything to do with covering

up government mistakes and malfeasance," said Jonathan

Hafetz, a professor at Seton Hall University School of

Law who has represented a number of detainees in habeas

litigation. The practice, he said, allows the

government to "mislead the American public on issues of

profound importance to the country by skewing the

perception of who really is at Guantanamo."


There have been some attempts, but with limited

results, to make more of the habeas proceedings public.

Nearly two years ago, as the litigation was getting

under way, three media organizations -- The Associated

Press, The New York Times and USA Today -- sought

access to the court filings in which the government

argued for holding the detainees.


The government fought the request but Judge Thomas

Hogan, then the chief judge of the U.S. district court

in Washington, ordered the government to release

redacted, unclassified versions of its filings within 14 days.


David Schulz, a First Amendment attorney who is

representing the media group, said the government is

flouting Hogan's order.


"The frustrating thing about this litigation is that

the judge in no uncertain terms upheld the public's

constitutional right to inspect the records of the

habeas proceeding and yet, nearly two years after the

documents were supposed to be filed and publicly

available, we are still waiting to get properly

redacted filings," Schulz said.


The government is now seeking to amend Hogan's order to

include six new broad categories of information that it

can restrict without review by a judge unless the

detainee objects. Schulz has opposed this idea. Both

sides are waiting to hear from Hogan.


When the media group first fought for access, just

weeks after the 2008 presidential election, the Bush

administration was still in office. But Schulz said the

election has had no impact on the department's position

in this area.


Said Schulz: "The Obama Justice Department has fought

as hard and resisted as strongly the right that the

public has to see these court records."



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