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Shaker Aamer: “Guards Using Ramadan to Massage Numbers” on Gitmo Hunger Strike

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When this Charlie Savage story came out yesterday in the New York Times, my spidey senses went all tingly. Something just didn’t feel right:

An American military spokesman said Sunday that 15 detainees at the military prison at Guantánamo Bay, Cuba, who had been listed as having gone on hunger strike had quit participating in the protest, accelerating an apparent downward trend since the start of Ramadan last week.

The spokesman, Lt. Col. Samuel House, said in an e-mail that as of Sunday, 81 of the 166 prisoners were still listed as taking part in the hunger strike. That figure was down from 96 on Saturday, 102 on Friday, 104 on Thursday and 106 on Wednesday, the number at which participation in the protest had peaked and plateaued.

Even Savage seemed to realize that given the way head guard John Bogdan has manipulated the prisoners and especially the hunger strikers, there could perhaps be more to this story:

But David Remes, a defense lawyer who represents several Guantánamo detainees in habeas corpus proceedings, expressed skepticism in an e-mail and said he wanted to talk to his clients before drawing any conclusions about what the military was reporting.

“Perhaps the authorities finally made hunger striking such a horrendous experience that some men, at least, are dropping out,” Mr. Remes said. “Perhaps some men feel the hunger strike has achieved its goals by forcing Guantánamo back onto the national agenda and jump-starting the transfer process. There are still other ways to read the numbers. Until we speak with our clients, we can only speculate.”

It turns out that the skepticism is well-founded. From the Guardian:

But lawyer Clive Stafford Smith said his client Shaker Aamer had told him on Friday that guards were using Ramadan to massage the numbers.

“The military are cheating on the numbers as usual. Some detainees are taking a token amount of food as part of the traditional breaking of the fast at the end of each day in Ramadan, so that is now conveniently allowing them to be counted as not striking,” Stafford Smith said.

Aamer – who has been held at Guantánamo for more than 11 years yet never charged – also claimed during a phone call with Stafford Smith that fellow inmates were being punished by being held in isolation during Ramadan if they refused to eat.

Isn’t that interesting? We have flip sides of the same story. Savage informs us that the guards moved prisoners who are no longer participating in the hunger strike back into communal living areas where they can pray together, while Aamer’s take on the same situation suggests that isolation is used a tool to punish those who still refuse to eat.

Considering the history of John Bogdan and the emerging questions over his fitness to retain command of the guard detail at Guantanamo, it is not surprising that Ramadan practices would be used to game the numbers on the hunger strike while continuing to inflict punishment on those who continue the strike.

Remember, the US military has a strong reputation to uphold when it comes to an understanding of the effects of Ramadan fasting and its use as a propaganda tool.

Judge Lamberth Upholds Gitmo Detainees’ Right to Counsel

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I’m a bit cranky, so reading this scathing opinion from Royce Lamberth rejecting the government’s effort to impose a new Memorandum of Understanding concerning Gitmo detainees’ right to counsel was just the ticket. The operative ruling reads,

The court, whose duty it is to secure an individual’s liberty from unauthorized and illegal Executive confinement, cannot now tell a prisoner that he must beg leave of the Executive’s grace before the Court will involve itself. The very notion offense the separation-of-powers principles and our constitutional scheme.

But the part where Lamberth lists the differences between the existing Protective Order and the MOU the government proposed.

For example, the Protective Order assumes that counsel for the detainees have a “need to know,” which allows them to view classified information in their own and related Guantanamo cases. Counsel for detainees are also specifically allowed to discuss with each other relevant information, including classified information, “to the extent necessary for the effective representation of their clients. And, the Protective Order assures that counsel have continuing access to certain classified information, including their own work-product.

The MOU, on the other hand, strip counsel of their “need to know” designations, and explicitly denies counsel access to all classified documents or information which counsel had “previously obtained or created” in pursuit of a detainee’s habeas petition. Counsel can obtain access to their own classified work product only if they can justify their need for such information to the Government. “Need to know” determinations for this and all other classified information would be made by the Department of Defense Office of General Counsel (DoD OGC), in consultation with the pertinent classification authorities within DoD and other agencies. However, there is no assurance that such determinations will be made in a timely manner. As this Court is keenly aware from experience, the inter-agency process of classification review can stretch on for months. It is very likely that this provision would result in lengthy, needly and possibly oppressive delays. It would also require counsel to divulge some analysis and strategy to their adversary merely to obtain their past work-product.

[snip]

While this Court is empowered to enforce the Protective Order, all “disputes regarding the applicability, interpretation, enforcement, compliance with or violations of” the MOU are given to the “final and unreviewable discretion of the Commander, Commander, Joint Task Force-Guantanamo Bay” (JTF-GTMO). The MOU further gives the JTF-GTMO Commander complete “authority and discretion” over counsels’ access to classified information and to detainees, including in-person visits and written communications. Apparently, the MOU also gives the Government to unilaterally modify its terms.

[snip]

Unlike the Protective Order, which repeatedly states that the Government may not unreasonably withhold approval of matters within its discretion, the MOU places no such reasonableness requirement on the Commander of JTF-GTMO. Because the MOU does not come into effect until countersigned by the Commander at JTF-GTMO, the Commander could presumably refuse to sign the MOU, leaving a detainee in the lurch without access to counsel. The MOU also states that both the “operational needs and logistical constraints” at Guantanamo as well as the “requirements for ongoing military commissions, periodic review boards, and habeas litigation” will be prioritized over counsel-access. This provision is particularly troubling as it places a detainees’ access to counsel, and their constitutional right to access the courts, in a subordinate position to whatever the military commander of Guantanamo sees as a logistical constraint. [citations removed]

This is a better summary of all the potential abuses in the new MOU than any I’ve seen in commentary on this issue. Rather than treating the government as an entity that has always acted in good faith in the history of Gitmo litigation (and other counterterrorism cases), Lamberth lays out all the big loopholes that the government would use to infringe on habeas corpus.

It’s worth a read. Cause I’m sure the government will appeal, and who knows what this will look like after someone like Janice Rogers Brown gets ahold of it.

DOJ: Calling Out Government Lies Would Endanger National Security

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The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Read more →

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

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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.