Saifullah Paracha’s Gitmo File Contains Suspect Details, but His Defense Attorney Can’t Point Them Out

I’m going to be in transit for another half day yet, but I wanted to comment on this motion David Remes, Gitmo detainee Saifullah Paracha’s attorney, filed to request emergency access to the Detainee Assessment Brief on his client released by WikiLeaks on Monday. (h/t Benjamin Wittes)  Remes describes the implications of the protection order he works under, noting specifically the warning DOJ sent out the other day.

For example, because the government considers the documents classified, and counsel holds a “secret” security clearance, he is concerned that if he views the documents online, the government might revoke his clearance. Losing his clearance will disable him from continuing to represent his current or future detainee clients and jeopardize his ability to obtain further clearances. Counsel is concerned that the government may even prosecute him. To avoid any potential sanctions, undersigned counsel errs on the side of extreme caution and refrains from viewing the documents.

The only place undersigned counsel can view these documents and fear no potential sanctions is at a Secure Facility the Justice Department has provided in the Washington area for counsel with “secret” level clearances. To the best of counsel’s knowledge, the Secure Facility contains no secure computer onto which the Wikileaks documents can be downloaded. Moreover, counsel is confident that the Justice Department will not ferry the documents to the Secure Facility for viewing and use by counsel. Even if the leaked documents were made available for viewing and use by counsel at the Secure Facility, counsel located far from the Facility – some thousands of miles away – would have to journey to the Facility to view and use them. [my emphasis]

That is, Remes could view the documents in just one place without risking losing his clearance and his ability to defend his client, or even criminal sanctions–a DOJ Secure Facility. Yet DOJ is not going to make the documents accessible there. So he’s SOL; he can’t see them.

Remes goes on to describe how this prevents him from defending his client publicly, specifically because he can’t comment for a big article the NYT did which (IMO) offered a credulous reading of Paracha’s file. While that article contains a quote from ACLU National Security Project Director Hina Shamsi noting that the information in the files is uncorroborated, and while NYT admits much of the evidence derives from KSM whom they note was waterboarded, rather than point out obvious suspect details in Paracha’s file, it simply repeats those details uncritically.

Here’s just one reason why Remes needs to have access to the file to adequately represent his client and refute credulous readings of Paracha’s file:

(S//NF) The plan called for shipping explosives in containers that detainee used to ship women’s and children’s clothing to the US. Detainee agreed to this plan. KU-10024 [Khalid Sheikh Mohammed] claimed in early March 2003, PK-10020 and PK-10018 [Ammar al-Baluchi, KSM’s nephew] were arranging the details with detainee and his son Uzair. KU-10024 stated detainee knew all the details of the plan. Uzair understood PK-10018 and PK-10020 were al-Qaida, but KU-10024 was unsure how much Uzair [Paracha’s son] knew about the actual smuggling plan.8 [my emphasis]

There are, in general, just two kinds of evidence offered by KSM in March 2003: evidence the CIA itself claims was disinformation offered by KSM in his early days of captivity while he was still successfully resisting interrogation, and evidence offered up under torture, potentially one of the 183 waterboarding sessions KSM survived in March 2003.

It’s unclear which category this piece of intelligence falls into, but the use of the verb “claimed” suggests there’s something about the intelligence that may have led even the briefer on Paracha’s file to doubt it.

The intelligence report cited for this detail (and therefore collected in March 2003), TD-314/16519-03, is cited three more times in Paracha’s file, only one of which is corroborated by reports dated 2004 and 2005.

In other words, one of the claims against Paracha can be traced back to a March 2003 interrogation of KSM that no one should consider credible. The entire case against Paracha builds off this early interrogation.

There are a number of other reasons to doubt the “facts” laid out in Paracha’s file. Notably, references to Aafia Siddiqui make no mention of her earlier reported detention by the US in Afghanistan, and instead claims “Siddiqui was detained in Afghanistan in mid-July 2008,” thereby hiding a key detail as to the credibility of any intelligence Siddiqui may have offered (or, just as likely, making no mention of intelligence Siddiqui refuted during years of interrogation in US custody in Afghanistan).

Parts of Paracha’s file reveal real weaknesses in the government’s case against him. These are all very basic details Remes needs to point out, particularly if NYT reporters aren’t going to read the file critically themselves. But given the way the protection order works, he can’t do that.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. radiofreewill says:

    This is not Justice.

    It’s boot-strapping a prosecution on tainted evidence, police brutality style.

    “We can do it because we’re the authorities, and we can get away with it for the same reason, too.”

    • bittersweet says:

      I was thinking the same as I read this. I am not even close to being a lawyer, but It seems to me that Remes could understand there is exculpatory evidence by reading this post, but he could not introduce this post as evidence. He would need to introduce the actual classified document, or else he would just be introducing hearsay. Just as “I read it on the internet” has become the punchline for a joke.
      Is that right lawyers?

  2. tjbs says:

    Seems like a fine example of a Soviet show trial except we, protected by our constitution, could never have this type of situation because of the separation of powers. We are a nation of laws no man is above except….

    The guys that wrote the constitution saw this sick show before and tried to warn us.

  3. powwow says:

    Good catch, emptywheel.

    To the best of counsel’s knowledge, the Secure Facility contains no secure computer onto which the Wikileaks documents can be downloaded. Moreover, counsel is confident that the Justice Department will not ferry the documents to the Secure Facility for viewing and use by counsel. Even if the leaked documents were made available for viewing and use by counsel at the Secure Facility, counsel located far from the Facility – some thousands of miles away – would have to journey to the Facility to view and use them. – David Remes

    Another detainee attorney [who “represents” a Guantanamo detainee – all of whom are detained by the U.S. military under color of the law of war as “enemy combatants” caught engaging in an armed conflict against the United States – as opposed to “defending” him, since no crime has been charged under domestic law or the international law of war against the vast majority of Guantanamo detainees] handled the situation with somewhat less “extreme caution” than Remes by, apparently – gasp – simply reading the publicly-available document(s) related to her client(s). In the process she quickly found “lies” the government had told both the opposing attorney (herself) and the federal district judge who heard her client’s habeas corpus petition, as she noted Tuesday:

    For me this is particularly frustrating as I have discovered more lies by the government both to the court and to me….and to bring them to the court’s attention I must fly to DC and file the documents from the “secret place.”

    So, for a few thousand dollars I can fly to DC, prepare the document and then file it as a classified document despite the fact that the big dark classified secrets are available in several different languages all over the f’in internet.

    […]

    BTW – please don’t send me any links or emails with or about classified documents.

    – Chicago-based detainee attorney H.C. Gorman, 4/26/2011

    Yet fellow detainee attorney David Remes may have realized that even that onerous, expensive approach to getting at the WikiLeaks documents may not work for detainee habeas attorneys, based on the past, unchecked practices of the Executive Branch (jailers of their clients). Practices which have created an obstacle course that these pro bono attorneys must complete to have half a chance to rebut nine years’ worth of classified, military-concocted “intelligence mosaics,” during the Boumediene-authorized habeas corpus/ “due process” hearings held in federal court to belatedly challenge the default “enemy combatant” status assigned to their clients – two-thirds of whom (most or all out of military uniform) were not captured by U.S. forces in the first place, according to a McClatchy review of the Guantanamo documents shared with them by WikiLeaks.

    • powwow says:

      This is the direct link to H.C. Gorman’s Tuesday blog post.

      [Re one of the details stated in the Remes brief: Did articles about the WikiLeaks Guantanamo Files start appearing on Easter Sunday morning, or not until Sunday evening? Also, FWIW, Page 4 of the brief erroneously lists Tuesday’s date as “April 25” rather than April 26.]

      This snippet of broader perspective in the David Remes brief, about the Guantanamo habeas cases – again, cases arguing whether or not a detainee was a member, pre-capture, seven or nine years ago, of the force(s) opposing the United States in an armed conflict (which ought to be something that can be publicly discussed in full by both sides, especially at this late date, without any risk to legitimate military secrets) – should be kept in mind when assessing any media reports about the government’s claims concerning its unseen and unheard prisoners:

      For that matter, the government has generally crippled counsel’s ability to respond to its accusations against Mr. Paracha in public by treating nearly all of the information favorable to him as classified or otherwise not to be publicly disclosed. Meanwhile, the government publicly discloses information in its possession that casts Mr. Paracha in the worst possible light. The government holds all the cards.

  4. rugger9 says:

    If the habeas corpus briefing is in the military tribunal setting (as opposed to an Article 32 or civilian hearing, Remes is apparently cut off. However, the government’s own selective leaking can be used to pry open the files for review. Even though what Wikileaks has is hearsay, but these are authentic and that means Remes can ask for the originals in camera. He would already know of their existence, and also from the previously USG-leaked docs smearing the detainees. If the USG opens the door by their own leaks, he can demand the whole file package.

    No one will be convinced by a show trial, we didn’t buy it when the Soviets did it in the ’30s.

    • emptywheel says:

      What was Omar Khadr’s trial if not a show trial? There was already a plea agreement based on tortured evidence, but the entire proceeding pretended that wasn’t true so the government could boast about a long sentence that itself was just for show (or the government lied to get the plea). And Khadr’s lawyers were specifically prevented from mounting a true antagonistic defense of their client on sentencing.

      And yet no one gave a damn.

  5. rugger9 says:

    Correct, and the justice isn’t done on that yet. No one thinks that Obama hasn’t been disappointing on this issue, nor as divergent from the campaign rhetoric. One wonders what the CIA/DIA/JSOC really has to keep him “incurious”.

    Canada paid out. I have no doubt that the US will be forced to do so as well. All of those interferences in other countries’ systems rankle over time, and most other countries will change governments more often than we will. And, since we are a creditor nation, we no longer are as strong playing the $$$ card, since (for example) China can call in their notes t get their way. Another GWB legacy…

    • lysias says:

      NDP is surging in the Canadian polls. If the result of the election is an NDP/Liberal coalition, what will that mean for the Khadr case?

      Even if the NDP just does well enough to be a strong opposition to a continued Harper minority government — and it looks as if it will do at least that well — what will that mean for the Khadr case?

      • skdadl says:

        We don’t need a coalition, although that would be a possibility. But if Harper comes back with a minority and can’t get the confidence of the Commons, then the GG can invite leader of second party to see whether he can get confidence of Commons. It doesn’t take a coalition to do that.

        Canadians don’t elect prime ministers or parties. They elect MPs. The PM is the person who has the confidence of most MPs, regardless of party.

        In practice, that probably does mean that Layton would need private assurances from Libs and Bloc that they would support him for a certain time, depending on certain deals. But in theory, parties don’t matter.

        Re party positions on Khadr: Harper enjoys seeing people rot in jail. Ignatieff is our version of Cass Sunstein, and wouldn’t want to embarrass Obama. If Layton actually does make it to PM, though — and that’s complicated but possible — I will be organizing an all-out campaign re Khadr, and I think that will work. First order: stop the government obstruction in the courts.

  6. bobschacht says:

    A legally naive question:
    What prevents David Remes from filing a motion with the judge at Saifullah Paracha’s trial to release the documents at issue so that he can use them? Isn’t it the judge who is supposed to decide what evidence is admissible, and what is not? Is there not a “discovery” phase at these trials where such things could be obtained?

    Obviously IANAL,
    Bob in AZ

    • powwow says:

      I’ve seen you post this question a few times now, Bob, so will try to answer it, although it really needs the personal experiences of one of the Guantanamo habeas case detainee-lawyer insiders to do it justice.

      orionATL @ 14 alludes to some of the dynamics involved, I think – one of which is that the pro bono Guantanamo detainee lawyers just don’t have the time or freedom of speech on the subject to publicly describe, in detail, what the average Guantanamo habeas case involves in the lead-up to the actual one or two-day habeas corpus merits hearing itself. A couple of accounts of that sort would go a long way toward helping the public to understand the months-long process, and the high hurdles those lawyers have to clear – caused by and centering around the secrecy of the government’s “intelligence” – to get their client a fair shake in court. [Candace Gorman has helpfully given us some hints, at least, about it in past comments – noting here, for example, how she discovered evidence, by chance, not revealed to her by the government despite a requirement to do so, after her merits hearing had concluded.]

      You’re absolutely right that there should be, and is, a “discovery” process leading up to the merits hearing, as part of which the government puts together a “Factual Return” about the detainee, which the detainee lawyer then challenges, in the process submitting interrogatories and general discovery requests for documents from the government. But that probably makes it all sound a lot simpler than it is in practice.

      In addition to the difficulties and cost involved with traveling to Guantanamo to see their clients, and to the one “secret place” in D.C. where detainee lawyers are allowed to access much of the case information, remember that it’s the Department of Justice officially “responding” to the detainee habeas petitions for release, whereas the Department of Defense is the agency that actually collected, along with various intelligence agencies, most, or all, of the “evidence” being proffered in the Factual Returns at issue. DOD personnel seem to be constantly churning through positions, so there’s major turnover among those who participated in creating these documents, and it’s been clear for some time (from resigning Military Commission prosecutors, for example) that the Guantanamo files were, and probably still are, in a general state of chaos. So even if complete good faith existed in DOJ people handling a habeas case, rank incompetence and unprofessional process at the DOD can still negatively impact the retrieval of information pertaining to a detainee’s case. [We won’t even mention the grave breaches of the Geneva Conventions which underlie and no doubt drive much of the DOD devotion to secrecy in these “enemy combatant” cases.]

      But the detainee lawyers nevertheless try their best to dig the documents and the foundation for their claims out of the government, to the best of their ability, as the first paragraph of this account yesterday by detainee attorney Clive Stafford Smith indicates:

      It is important to understand that each of the 759 WikiLeaks Guantánamo “assessments” are comprised of the worst gossip that a military officer can come up with when trawling through several thousand documents that inferentially relate to each prisoner. When we are eventually allowed to hold [habeas] hearings in Washington DC, we methodically disabuse the courts of endless mud that has been thrown at our clients. Hence we have proved 64% of the habeas petitioners innocent – and that comes after more than 500 prisoners were released by the military before the courts intervened. In other words, the error rate is astonishing.

      […]

      Consider [Smith client Adel] Hamlily’s combatant status review tribunal in 2004, and the annual review boards in 2005 and 2006, all of which are public and full of outlandish accusations (most later withdrawn or disproved). Nowhere is there any mention of this slaughter on the streets of Pakistan. This means that the allegation came after 2006. Indeed, the suggestion that Hamlily was an “assassin” comes, we are told, from Khalid Shaikh Mohammed, who emerged from his torture cell in September 2006, his appearance in Guantánamo much heralded by then-President Bush. But Mohammed never actually mentioned Hamlily at all: he is quoted as describing how someone called Abu Adil committed these atrocities.

      One might doubt the entire story merely from the fact that Mohammed was waterboarded 183 times and abused in many other ways over several years. But the name Abu Adil means not that your name is Adil, but that you are “Father of Adil”. Due to a cultural misunderstanding, some officer trawled through the list of 779 prisoners and found seven in Guantánamo listed with the name Adil. Unfortunately, the military had also misspelled Hamlily’s first name. So someone in US military intelligence (that famous oxymoron) leapt to the conclusion that Mohammed might be referring to Hamlily.

      […]

      And yet the Guardian published a headline based on the fact that some fool of a military officer threw the kitchen sink into the 2008 assessment of Hamlily, in an effort to prove to his superiors that this was a dangerous terrorist.

      Surely the paper would have done well to consider how, in 2009, Hamlily was cleared by the Obama administration’s review procedure, reflecting a finding that he was “no threat to the US or its coalition partners” – the solitary 2008 Bush-era memo was rejected as unreliable. Hamlily was returned to Algeria on January 20, 2010, a free man. Since then, he has suffered profoundly from a psychotic disorder, and other mental disabilities provoked by his abuse in US custody.

      Those laborious “mud removal” efforts at least work to inform the judge about the information that’s retrieved, by and large. But it’s another matter entirely when it comes to the public’s knowledge of the same information:

      What prevents David Remes from filing a motion with the judge at Saifullah Paracha’s trial [habeas merits hearing] to release the documents at issue so that he can use them? Isn’t it the judge who is supposed to decide what evidence is admissible, and what is not?

      Part of the complicated answer is that “Protective Orders & Procedures” imposed by the D.C. District Court strictly limit what gets into the public domain about these assumed “enemy combatants” of nine years ago, even when the attorneys can get pertinent documents before the judge. [Though you wouldn’t know it from public accounts, thanks in part to just such restrictions, these men are not “on trial for terrorism” – which probably 90% of Americans would agree these “court cases” (initiated by the detainees) amount to, if asked, due to the lack of understanding or information about the Guantanamo habeas corpus process in the media.]

      This January order from the D.C. District (all recent court orders and opinions in the Guantanamo cases are available here) – which is also quite pertinent to the question of the WikiLeaks Guantanamo Files (see the order’s discussion of the need for an “official disclosure” of publicly-released classified information, etc.) – is probably a pretty good representative of the sort of maze forced on detainee lawyers even after they’ve managed to pry information loose from the DOJ/DOD for the court’s use, and may answer more of your questions:

      The two motions presently before the Court concern “protected information”i.e, information that is non-classified but nevertheless deemed unsuitable for public filing. See Protective Order & Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba (Sept. 11, 2008) (“Protective Order”), Docket No. [57], Paragraph 10. The disclosure of “protected information” is restricted; absent prior authorization either by the Government or this Court, disclosure may not extend beyond Petitioner’s counsel, the Court, and the Court’s support personnel. Id. Paragraph 35.

      […]

      Once the Government discharges its burden [of demonstrating a reason for secrecy, as described by the D.C. Circuit Guantanamo case law], the district court must accord substantial weight and deference to the Government’s “assessment of the harm to foreign relations and national security that would result from officially disclosing” the information at issue.

      [Etc.]

      Colleen Kollar-Kotelly
      United States District Judge

      Date: January 18, 2011

      • bobschacht says:

        Powwow,
        Thanks for your patient and lengthy attempt to answer my question. But what your explication doesn’t seem to address (did I miss it?) is that, via wikileaks, the old assessment records are available via public links to the detainee’s attorneys, even though they are forbidden (by DOJ, not the judge) from *using* those records in the detainee’s defense. So if a particular wikileaks document would be useful in the detainee’s defense, but the defendant is forbidden from using it, why can’t the defendant’s lawyers file a motion with the judge to admit use the wikileaks document? Or am I confusing the terms of an actual trial with the language of a habeas hearing? For example, is “admissibility of evidence” an issue in a trial, but not in a habeas hearing?

        I’m sorry for being so dense, and I do appreciate your attempt to answer my question!

        Bob in AZ

        • orionATL says:

          i have essentially the same question, bob.

          and also am a “nal” – “not a lawyer”.

          glad you asked

        • harpie says:

          IA[also]NAL, but I think that the Reme’s motion Marcy links to above is him asking the judge to allow him to use the doc’s…could be wrong…

          IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

          The undersigned, counsel for Petitioner, Saifullah Paracha, respectfully requests, on an emergency basis, an order requiring that the government (1) allow David H. Remes, a lawyer for the petitioner, full and unfettered access to all publicly available classified Wikileaks documents relevant to Mr. Paracha’s case, including access on computers at Mr. Remes’ home or office; and (2) represent to this Court that Mr. Remes may publicly view, download, print, copy, disseminate, and discuss the documents and their contents, without fear of any sanctions, legal or otherwise. Alternatively, the Court should hold a hearing on the emergency application at its earliest convenience.

        • powwow says:

          [V]ia wikileaks, the old assessment records are available via public links to the detainee’s attorneys, even though they are forbidden (by DOJ, not the judge) from *using* those records in the detainee’s defense. So if a particular wikileaks document would be useful in the detainee’s defense, but the defendant is forbidden from using it, why can’t the defendant’s lawyers file a motion with the judge to admit use the wikileaks document? Or am I confusing the terms of an actual trial with the language of a habeas hearing? For example, is “admissibility of evidence” an issue in a trial, but not in a habeas hearing?

          Ah – I think I may see the source of your confusion, Bob (which I addressed implicitly but not explicitly @ 20). You’re assuming, it seems, that the inability of the detainee lawyers to speak publicly about their clients’ cases – to contribute to or to rebut all the public media reporting about their clients, since the WikiLeaks Guantanamo Files were released – equates to an across-the-board inability to use the WikiLeaks documents in court.

          Note, first, that the DOJ/Court Security Officer letter to the lawyers was an attempt to comply with or to uphold the existing terms of the aforesaid ”Protective order and procedures for counsel access to detainees at the United States naval base in Guantanamo Bay, Cuba, September 11, 2008.”

          That Protective Order is enforced by the judge, not by the DOJ – although the DOJ controls security clearances, and thus a lawyer’s access to his client/ability to represent Guantanamo clients (a fact that explains section (2) in the Remes excerpt by harpie @ 24) – which accounts for the David Remes motion, as harpie indicates, asking the district judge to clarify/rule that the Protective Order does not apply to these particular released documents, so as, primarily, to allow Remes to publicly discuss them outside of court.

          [Part of that process may involve the government making an “official disclosure” statement about the WikiLeaks Guantanamo Files, to acknowledge their government provenance and pedigree, so to speak, as released. (The case law supposes that sometimes admitting that released government documents or information are government documents or information would itself compromise legitimate government secrets. That hardly seems to be the case here.) The linked January court order @ 20 was addressing a similar concern from a detainee lawyer, who wanted to be able to publicly advocate for release of their client, using information, in part, about their Guantanamo client that had previously appeared via anonymous government leaks – which, insidiously, meant information not “officially disclosed” in that case – in the Washington Post.]

          So David Remes is asking the judge “to clarify/rule that the Protective Order does not apply to these particular released documents” for two purposesmostly to allow him (as one of the few people, outside the government, knowledgeable about the details of his client’s case) to contribute to the public debate generated by the WikiLeaks documents, without losing his security clearance. But, also, secondarily, Remes is asking the judge to remove the burden on the detainee lawyers that would otherwise be imposed before they could get the documents in front of the judge in court.

          That is, the Protective Order does not bar the WikiLeaks Guantanamo documents from the habeas court cases – but what it does do, if the Court Security Officer’s read is right, is to ridiculously require the detainee lawyers to travel from all over the country to access them only in the “safe place” in D.C. where these lawyers are allowed to use and produce classified materials. Except that, as David Remes wisely predicts in his motion, that “safe place” probably won’t in fact have secure internet access to the WikiLeaks documents, so even that usual routine may not provide access for the detainee lawyers to the documents that the rest of the world can see and print in their own homes. And, if this latter supposition is in fact true, then, indeed, the detainee lawyers would be confronting the untenable situation you describe:

          So if a particular wikileaks document would be useful in the detainee’s defense [in court], but the [detainee] is forbidden from using it

          Therefore, just in case, as harpie indicates @ 24, David Remes is trying to make sure that such a ridiculous outcome does not come about, with his recent motion doing just what you suggest:

          …why can’t the [detainee’s] lawyers file a motion with the judge to admit [in court] the wikileaks document?

          Remes is thus also asking the judge to rule that the detainee lawyers are allowed to access these particular documents from home and office, rather than needing to travel to D.C., as Candace Gorman references, just to be able to write about them (assuming access were established to them in the “safe place”) in briefs to be filed in court as part of the habeas corpus proceedings for their clients.

          With regard to your points about the “admissibility of evidence” in Guantanamo habeas corpus hearings, there’s another whole kettle of fish involved in that question, which has been batted around between the D.C. District and D.C. Circuit courts since the Supreme Court’s 2004 Hamdi decision – and it goes to the heart of the credibility of the government’s “facts” about these detainees. After all, nine years post-capture, government “evidence” supposedly justifying these “law of war enemy combatant” detentions, and collected (our judges innocently suppose) from underneath the “rubble” in the “fog of war,” must be treated with benevolent leniency and by standards with generous give, when it comes to justifying the indefinite detention of non-Americans in American military prisons – or so say our Courts and our Congress, in effect. However, this portion of the Guantanamo habeas hearings saga, at least, is not directly at issue with regard to your main question @ 22.

  7. orionATL says:

    i think i may see what the game is with doj re prohibiting defense (habeas) attorneys from using the wl docs.

    doj’s whole chance of success hinges on deceiving a judge or judges. the principle deceit is that these detainees uniformly represent dangerous terrorists.

    the game is to insure that the judge(s) involved stay as uninformed about the details of each detainees as is possible for doj to manage, and hence vaguely alarmed at and focused on their own possible culpability in some subsequent act of terrorism by a prisoner/”terrorist”.

    these docs would have remained hidden, had it not been for wleaks. defense attorneys who knew of or guessed at their existence would have been told either they did not exist or that they could not be made available.

    in short, they would have been deliberately withheld from the court by the doj.

    what the doj has to fear greatly is that the federal judg-ery may suddenly began to get a whiff of the inaccuracy, vagueness, and general unreliability of the govt’s case for detaining many of these men.

    at that point doj would have to cease bullshitting judges with generalities and making spurious claims the impact on foreign affairs

    and start having to defend each prisoner’s detention on the factual basis of that detention.

    now that i see this, i believe it is even more important than i imagined for the defense counsel and others concerned with this case to strongly challenge the doj’s high-handed, deceitful, unethical decision.

    on what grounds i don’t know, but withholding critically important evidence from the court would seem a good place to start – placing the doj in conflict with the court and on the defensive.

    a good public education campaign like that for bradley manning would not hurt either, particularly in other nations disposed to distrust the u.s.

    the defense attorneys themselves cannot do this; other individuals and institutions must help.

  8. orionATL says:

    if i’m on the right track with my surmise above, then the attorneys at doj are not feeling like motherfuckers of the universe; they are sweating bullets.

    the guantanamo charade is on the edge of being unmasked.

    if this info on individual detainees makes it into court rooms, then the 8-yr-old guantanamo cover-up will be uncovered.

    once guanatanamo falls, then the rest of the bush/cheney deceits about terrorism and the about invasion of iraq will become much more vulberable to exposure.

    the only thing that can save the doj in this scenario is judicial complicity in keeping the guantanamo injustice buried.

    that’s one of the things a public education campaign would make more difficult.

  9. harpie says:

    From the Blog of HC Gorman:

    AND WHILE WE WAIT; HC Gorman; The Guantanamo Blog; 4/28/11

    […][links to articles by Joe Marguilis and Clive Stafford Smith]

    Meanwhile we wait. Will the attorneys for the Guantanamo men be the only ones that cannot participate (meaningfully) in the dialog surrounding the wikileaks disclosures?

  10. orionATL says:

    [email protected]

    wow powwow :>)!

    i don’t know how you muster the energy or determination to write such a lengthy, informative post- and this one is by no means the first i ‘ve read.

    point 1:

    clive stafford smith is my hero for writing this (how much more plainly could one say it than smith did?):

    [ “It is important to understand that each of the 759 WikiLeaks Guantánamo “assessments” are comprised of the worst gossip that a military officer can come up with when trawling through several thousand documents that inferentially relate to each prisoner. When we are eventually allowed to hold [habeas] hearings in Washington DC, we methodically disabuse the courts of endless mud that has been thrown at our clients. Hence we have proved 64% of the habeas petitioners innocent – and that comes after more than 500 prisoners were released by the military before the courts intervened. In other words, the error rate is astonishing…” ]

    could the problem be stated any more clearly???

    my short translation:

    – the dod clearly instructed its officers tasked with justifying guantanamo detentions to justify that detention anyway possible – “any way but loose” was surely their motto (did they have a patch?)

    – the dod clearly did NOT instruct its officers reviewing dod detentions in guantanamo to look for mitigating circumstances or for previous error “in the field”.

    point 2:

    whether she understands it or not, colleen coller- kelley is colluding with the government to prevent a fair hearing for the guantanamo detainees.

    there is absolutely no rational reason why even a poorly informed, rather foolish, federal judge should limit the attorneys in the way she limited them.

    coller-kotelly should be ashamed of herself.

    she either understands she is helping the political powers in washington continue covering up the guantanamo debacle on the never-publicly-discussed grounds that it would erode public confidence in the government

    or

    she is lacking the proper skepticism necessary for a judge to function at her highest level,

    and so is being played by the doj.

    neither option is a win for justice in the united states.

    either option is a tattooed black mark on american pride in the fairness of its judicial system.

  11. powwow says:

    You’re welcome, everyone, and I’m glad that the second explanation helped you out, Bob.

    I can now update Marcy’s post with regard to the David Remes motion filed on Wednesday, by quoting Judge Friedman’s response to it, made available today at the D.C. District Court’s Guantanamo page:

    On April 27, 2011, petitioner Saifullah Paracha’s counsel [David Remes] filed an emergency application for immediate access to all publicly available WikiLeaks documents relevant to Mr. Paracha’s case. See Emergency Application at 1, Apr. 27, 2011.1 The following day [Thursday], the Court conferred with counsel for the parties. The government intends to oppose the application. Because it argues that there is no emergency, the government intends to file its opposition in the ordinary course according to the Local Civil Rules, unless otherwise ordered by the Court. Under the Rules, its response is due on May 11, 2011. Mr. Paracha’s counsel requests an expedited schedule which is opposed by the government: he requests that the government be required to file its opposition by May 4, 2011; that he file his reply by May 6, 2011; and that the Court hold a hearing on the matter during the week of May 9, 2011.

    The Court sees no need for an expedited schedule because — as Mr. Paracha’s counsel has acknowledged in his papers and in his representations to the Court — no emergency exists in this litigation, which has been continued pending Mr. Paracha’s filing of a status report that was due by April 1, 2011 but has still not been filed. See Minute Order, Jan. 10, 2011. Furthermore, the Protective Order entered in this case on September 11, 2008 establishes specific procedures that counsel must follow “[i]n the event that classified information enters the public domain.” In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143, 150 ¶ I(D)(31) (D.D.C. 2008); see id. at 150-51 ¶ I(D)(32).2 To the extent that this application seeks to modify such procedures, briefing on the matter shall occur in the ordinary course.

    Accordingly, it is hereby

    ORDERED that Mr. Paracha shall file the past-due status report by May 2, 2011; it is

    FURTHER ORDERED that the government shall file its opposition to the emergency application by May 11, 2011; and Mr. Paracha’s counsel shall file his reply by May 18, 2011; and it is

    FURTHER ORDERED that the Court will decide whether to hold a hearing on the emergency application after it is ripe for decision.

    SO ORDERED.

    PAUL L. FRIEDMAN
    United States District Judge

    DATE: April 29, 2011

    [Footnote 2: And as a general matter, the Protective Order provides that counsel “shall seek guidance from the [Court Security Officer] with regard to appropriate storage, handling, transmittal, and use of classified documents or information.” In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d at 148 ¶ I(C)(15).]

    Translation: The world won’t be reading or hearing anything, in the media or in public, from David Remes – or probably from any other pro bono Guantanamo detainee attorney in need of a security clearance, unless they can find a judge a little more attuned to the imperatives of basic justice than Paul Friedman – that describes or corrects the factual details of his client’s “enemy combatant” status (or lack thereof) – as now widely discussed in the public domain because of the WikiLeaks Guantanamo Files release – until federal district Judge Paul Friedman, in his own sweet time, decides that the Remes request is “ripe” for decision sometime after May 18, 2011, if then.

    Or, to put it another way: “The government holds all the cards.”

    [And gets to keep all the cards, even when a federal district judge discovers and declares that the FBI and DOJ represented to the court facts that were and are “blatant falsehoods,” in a FOIA case about the government’s surveillance of American citizens and organizations…]

    • bobschacht says:

      Thanks again, powwow.
      Just to clarify, we are in the middle of a lengthy set of judicial proceedings, are we not? With Remes, this is “just” a habeas hearing, is it not? Has his client actually been indicted (or the military equivalent)? Or is his client one of those indefinite detention cases with no resolution other than the Gov’t holds all the cards? Is the outcome of the present procedure appeal-able?

      Are the results that you quoted @ 29 such that other lawyers in cases similar to Remes will have to accept the same judgment on their cases? Or can they file motions similar to Remes (especially if they have a different judge)? IOW, is Remes’ judge not only screwing Remes’ client, but also dozens of others as well?

      I’ll bet some of these cases will still be in litigation in 2016.
      So much for “speedy justice.”

      I blame the AUMF, in part. The gov’t might not be able to get away with this crap except for the claim, accepted by many, that we are “at war,” even if Congress hasn’t declared one.

      Bob in AZ

      • powwow says:

        Has [David Remes’s] client actually been indicted (or the military equivalent)? Or is his client one of those indefinite detention cases with no resolution other than the Gov’t holds all the cards?

        At this time there is exactly one pending case (‘indictment-equivalent’) in the Guantanamo Military Commissions (against a detainee whose alleged acts pre-date the 2001 Congressional Authorization for Use of Military Force – that is, his alleged acts pre-date the authorized commencement of our “armed conflict,” which is the trigger for the attendant application of the law of war that supposedly justifies “military” commissions…). To date, there are a grand total of six “war crime” convictions by Guantanamo Military Commissions since 2001, four of which were plea bargains.

        Everyone else held at Guantanamo is in “indefinite definition” as a claimed “enemy combatant” of the United States in armed conflict, under color of the law of war.

        So, no, this Guantanamo client of David Remes has not been charged with “war crimes” by the Convening Authority of a military commission. He is instead, as you indicate, “in the middle of a lengthy set of judicial proceedings” in federal court leading up to a habeas corpus merits hearing requested by the jailed “enemy combatant.” For more on such proceedings, you may be interested in reading this excellent account by detainee attorney Candace Gorman about the early years of her representation of a Guantanamo detainee (who, thankfully, was finally released, to the nation of Georgia, in March, 2010) – which includes a description of how the D.C. “safe place” operation for pro bono Guantanamo habeas attorneys (of which there were at one time more than 500, all of whom had no “attorney-client” privilege with their Guantanamo clients) was and is conducted.

        The outcomes of all of the district court habeas hearings may be appealed to the appellate court (the D.C. Circuit), and the appalling, liberty-hostile results of those appeals over the last year are described in this powerful piece by Uighur attorney Sabin Willett. One result of the appellate court’s new case law in these habeas cases is that there hasn’t been an ordered release – note that judicially-“ordered” release no longer translates into actual release, thanks to the D.C. Circuit and an AWOL Supreme Court – of a Guantanamo detainee by a district judge since July, 2010.

        Are the results that you quoted @ 29 such that other lawyers in cases similar to Remes will have to accept the same judgment on their cases? Or can they file motions similar to Remes (especially if they have a different judge)? IOW, is Remes’ judge not only screwing Remes’ client, but also dozens of others as well?

        Good question. I’m not sure how they’ll proceed, but different habeas cases are in different postures, so other attorneys and judges will have varying incentives to act – some attorneys may file a motion, others may wait and see how the Remes motion plays out. One thing that should, and I assume will, happen ASAP, is for some nearby detainee lawyer to travel to the “safe place,” to try to access there the pertinent WikiLeaks document for their client (I believe all 759 “assessments” are now posted on-line), to see if the Remes supposition about the lack of access to those documents in the “safe place” is correct. If those “classified” public documents can’t in fact be accessed there (and thus anywhere by these attorneys), and a detainee has an imminent merits hearing, for example, I trust that those facts would be hard for even a Paul Friedman to overlook or lightly dismiss in response to a motion filed by a detainee attorney.

        The 2001 AUMF (and therefore Congress) is indeed very much to blame – which is another reason why it’s so important to make clear that these detainees are not “on trial” in federal court on some domestic law charge. They are being held at Guantanamo under color of the law of war (even as Guantanamo operations openly violate the law of war/Third Geneva Convention), based on the 2001 AUMF. That AUMF did legitimately authorize an armed conflict abroad, but, in the nine years since, it has become, in essence, an Enabling Act for lawless presidential conduct against generic allegations of terrorism, punishing so-called “enemy combatants” mostly purchased (!) abroad, and subsequently transported to and trapped in a bastardized “intelligence” exploitation system operated, without accountability, by the military and our sprawling government intelligence industry, without regard for the woeful lack of evidence of genuine “enemy combatant” activity, by most of the purchased captives, in the armed conflict that Congress authorized the president to conduct against the surviving perpetrators of the 9/11/2001 attacks.

    • harpie says:

      The Judge in that latest opinion, as well as Remes in his motion speak of “the Government”, but imo, it is “The [rogue] Executive” which deserves the condemnation in both instances.

      Not only does “the government Executive hold all of the cards”, but they actively DECEIVE the rest of “the Government” and WE the PEOPLE chopped liver.

      …who how much money do we continue to put out so that they can continue to do this to US!

      We are getting screwed every which way.

      There’s something very wrong about this picture.

      […spitting MAD!!!]

  12. orionATL says:

    thanks again.

    like “lobster” the professor with incredibly pertinent information about the jap nuclear disaster which he shared with us all for weeks (see scarecrow’s posts & lobster’s diaries),

    you, powwow, have been keeping us nal’s informed enough to have a modest sense of what is going on in the legal jungle of gitmo multi-year legal battle.

    by my count this is somewhere between the 4th and 6th lengthy and informative post you have taken the time to craft.

    with respect to the judge’s decision,

    all i can see is a judge without an ounce of moral outrage or moral courage, or, more likely,

    a judge who is not going to handle this hot potato, “pass it on”.

    there are various ways one can categorize judges motives:

    – desire to protect the judiciary (his/her institution and employer)

    – desire to avoid notoriety or conflict

    – desire to rise to higher, say, appellate status ( careerist motivation)

    – fear of appellate or supcrt rejections

    – lack of the intellectual acuity, moral clarity, or professional courage to find for those clearly downtrodden and mistreated by the federal govt, which pays his/her salary.

    then of hugo black, robert jackson, thurgood marshall, — douglas, earl warren.

    and i think of senator patrick leahy of vermont –

    a senator who has failed his nation

    but kept his position.