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In Gitmo opinion, two versions of reality

Dafna Linzer, ProPublicaOctober 11, 2010When Judge Henry Kennedy Jr. ordered the release of a Guantánamo Bay detainee last spring, the caseappeared 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 MohammedUthman, a Yemeni held without charges for nearly eight years. Uthman, accused by two U.S. administrations of being an al-Queda fighter and bodyguard for Osama bin Laden, is among 48 detainees the Obama administrationhas 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. Weekslater, a new ruling appeared in its place. While it reached the same conclusion, eight pages of material had beenremoved, 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 militarydoctors as "psychotic" with a mental condition that made his allegations against other detainees "unreliable." Butthe opinion the public sees makes 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 generalvicinity 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 the classifiedinformation 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 opinionbecame 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 isto propose release of a properly redacted opinion."The second opinion, drafted after a contentious exchange between Kennedy and the prosecutors, did not refer tothe 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 hada 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

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U.S. Dstrct Judge Henry H. Kennedy Jr.

 

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 highlightsinformation that was removed.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 opinions andadditional documents, as well as interviews with government and intelligence officials, former militaryprosecutors 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 detaineeswho 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 wherewe 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. See sidebar, "DOJ's troubled case againstUthman."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 win hishabeas 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 Guantánamo Bay, Cuba. On Oct. 6, a federal judge in New York barred thegovernment from using its main witness 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 that Uthmanwas being improperly detained, his 27-page opinion was turned over to a court security officer for classificationreview.The judges themselves have very little insight into the process and no sway over what is redacted. Governmentsecurity officials review filings in the habeas litigation and other cases involving classified evidence and removesensitive information.In the Uthman case, that clearance process took three weeks. Kennedy's decision was stamped "Redacted," bythe court's security officer and returned to his chambers on March 16. The deletions were minimal. For the first16 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, thesecurity office sent out urgent notices to attorneys and the judge that the opinion had not been ready for releaseand 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 releasingclassified information. He and Justice Department attorneys then argued over what to do, according to threesources familiar with the discussion.Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Departmentresisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact materialthe government wanted to conceal.With Uthman slated for indefinite detention, the stakes were high.

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During the next month, government lawyers scoured the Internet for the original decision; the legal databaseWestlaw was asked to remove it from archives; defense attorneys were instructed to destroy their electroniccopies.Even the court docket was altered. When the opinion was originally posted on March 16, the docket notedKennedy'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 hisopinion, 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 classificationand there are things that need to be redacted, but there is never a justification for deception in the judicialprocess and that's what this is," Aftergood said, after reviewing both versions of Kennedy's ruling in the Uthmancase.Two senior officials in the Obama administration and two others with direct involvement in habeas cases weresurprised 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 Pakistanipolice in the town of Parachinar, near the Afghan border. It was Dec. 15, 2001, and U.S. troops were in themiddle of a five-day battle against an al-Queda stronghold known as Tora Bora, where bin Laden was believed tohave taken shelter. Parachinar and Tora Bora are 12 miles apart but separated by a treacherous mountain rangethat takes two to three days to traverse.The government maintains that Uthman was in Afghanistan to fight for bin Laden; Uthman has claimed he wentthere to teach the Quran to children. Some facts of his story are not in dispute, some critical ones are. They lookdifferent 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 aroundDec. 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 contestthat Uthman was taken into custody in Parachinar.Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthmanadmitted 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-Queda fightersalthough 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 judgenor 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 attemptsuch strategies because repeated use of a discredited witness would provide a significant opening to defenseattorneys. In the habeas cases, it is difficult for defense lawyers and judges to learn of the roles played byflawed 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 forthe District of Columbia noted that a government witness had been diagnosed by Guantánamo medical staff as

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