The Detention Dilemma
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. (JohnMoore/Getty Images) by Dafna Linzer ProPublica, April 25, 2011, 8:34 a.m.
Update April 25, 2011:
On Sunday night, a number of news outlets and WikiLeaks published a trove of classified documents [1] on detainees at Guantanamo Bay. ProPublica has been reporting on Gitmo [2] and theissues surrounding indefinite detention for more than two years. In October 2010, Dafna Linzer revealed how the Obama administration censored one federal judge's Gitmo decision [3] that had questioned thegovernment's evidence against a detainee.
This story was originally published on Oct. 8, 2010 and co-published with The National Law Journal [4].
When Judge Henry Kennedy Jr. ordered the release of a Guantánamo Bay detainee last spring, the case
Uthman Abdul RahimMohammed Uthman
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 [5], 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 [6] the Obama administrationhas deemed too dangerous to release but "not feasible for prosecution." A day after his March 16 order [7] was filed on the court's electronic docket,Kennedy's opinion vanished. Weeks later, a new ruling [8] 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 againstUthman.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 madehis allegations against other detainees "unreliable." But the opinion the public seesmakes no mention of the man's health and discounts his testimony only because of itsinconsistencies.The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies inthe government's case were deleted. Even the date and circumstances of Uthman's arrest were changed. In thefirst 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 firstopinion was accidentally cleared for public release before government agencies had blacked out all theclassified information it cited. While the government privately took responsibility for the error, it initially refused to correct it. Two peoplefamiliar 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 classifiedevidence.Justice Department sources offered a different account. They said the department later relented and gaveKennedy a properly redacted version of the opinion, in which classified material had been blacked out. Thesources 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 casesis to propose release of a properly redacted opinion."The second opinion, drafted after a contentious exchange between Kennedy and the prosecutors, did not referto 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 previousopinions in Guantánamo habeas cases have noted when material has been blacked out or removed to protectsecurity.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 everyoneexcept 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 andconducted a line-by-line comparison with what was published five weeks later. That comparison, highlightinginformation that was removed, can be found here [9].Reporting for this story was complicated by the fact that much of the evidence is classified, and judges, lawyersand prosecutors are barred from discussing most aspects of the litigation. But an examination of the opinionsand 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 theevidence against a detainee designated for indefinite detention.To justify Uthman's incarceration, the government relied on statements from five current or former detainees[10] who were previously discredited by judges in other cases, questioned by internal Obama administrationassessments or found unreliable by military psychiatrists because they were mendacious, mentally ill orsubjected to torture.Kennedy's first opinion reveals that some of the government's evidence came from a detainee who committedsuicide at Guantánamo three years ago after months of hunger strikes. In the second opinion, the detainee'sname 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 considertheir 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 theObama administration designated for indefinite detention and, officials said, he is the first of those men to winhis habeas petition.Further complicating matters, Uthman hails from Yemen -- a country the White House has deemed too unstableto handle such a transfer. Should he send Uthman home, President Obama risks a fierce political backlash fromRepublican 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 prosecutedetainees and close the prison at Guantanamo Bay, Cuba. On Oct. 6, a federal judge in New York barred thegovernment from using its main witness [11] against a terrorism defendant because the information that ledinvestigators to the witness was obtained through torture.
Botched Classification
When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February thatUthman was being improperly detained, his 27-page opinion was turned over to a court security officer forclassification review.The judges themselves have very little insight into the process and no sway over what is redacted. Government
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