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PORTSIDE  October 2010, Week 2

PORTSIDE October 2010, Week 2


In Gitmo Opinion, Two Versions of Reality


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In Gitmo Opinion, Two Versions of Reality

A detainee walks through the recreation yard at the
detention center on Sept. 15, 2010, in Guantanamo Bay,
Cuba. (John Moore/Getty Images)

by Dafna Linzer
October 8, 2010

This story was co-published with The National Law

When Judge Henry Kennedy Jr. ordered the release of a
Guantánamo 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

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 Guantánamo 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

"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

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

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 Guantánamo 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

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

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

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

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

"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

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 Guantánamo."

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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