The Gitmo Lawyers’ Information Gulag

Charlie Savage reports on the new “relaxed” standards that will allow Gitmo defense lawyers to glance at the Gitmo Detainee Assessment Briefs released by WikiLeaks. (h/t fatster)

In guidance to the lawyers — who have security clearances, and so are required to follow government rules for the handling of classified information — the department’s court security officer said Friday that they were now permitted to view the leaked documents on the Internet.

But they are still not allowed to download, save or print the documents because they might contain restricted information.

“While you may access such material from your non-U.S.-government-issued personal and work computers, you are not permitted to download, save, print, disseminate, or otherwise reproduce, maintain, or transport potentially classified information,” the directive said.

I’m not sure how this is all that much better for Gitmo lawyers.

As I explained back in April, the request to allow access to the Gitmo files came from Saifullah Paracha’s lawyer, David Remes. His client’s file contains a number of glaringly problematic details that have now been in the public domain for two months.

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).

The government just generously granted Remes the opportunity to look at all these glaring problems firsthand.

But if he can’t “disseminate” this information–if he can’t go to reporters and say, “all that damning information against my client comes not just from a detainee who was waterboarded, but it comes from the period when he was being waterboarded,” what good does it do?

  1. radiofreewill says:

    Under the Gitmo system, Joan of Arc would burn again:

    “The twelve articles of accusation that summarize the court’s finding contradict the already doctored court record.[49]”

  2. fatster says:

    This is so inane–with serious consequences, nonetheless–and so bizarre that it seems beyond Alice and 1984. Perhaps Stanley Kubrick could have done it cinematic justice.

    Many thanks, EW.

  3. bobschacht says:

    But if he can’t “disseminate” this information–if he can’t go to reporters and say, “all that damning information against my client comes not just from a detainee who was waterboarded, but it comes from the period when he was being waterboarded,” what good does it do?

    Even more to the point, doesn’t it prevent him from using the leaked evidence in court in defense against charges against the detainee?

    Bob in AZ

    • emptywheel says:

      No, he should already be able to use it in court.

      Everything gets introduced under seal in Gitmo cases. Then the court security officer makes sure nothing untoward is there. So he can use it–though one question I’m not entirely sure of the answer is whether or not they got these documents in normal discovery, as presumably they should have.

      The problem is that eveyone is talking about these documents except the people best able to contextualize them.

      • irregulationary says:

        In the Brave New World, the “court security officer” admits measured doses of truth into the courtroom so as not to impede the goosestep of justice. Publicly known facts can be admitted only by masquerading as dangerous secrets, shackled and hooded like detainees.

        If the “court security officer” keeps information *out,* who keeps it *in?* That complementary function, naturally, is the job of the “public information officer.”

  4. hcgorman says:

    I just reread the three page instruction manual that I received from the court security office yesterday so I could try to figure out exactly what I can say here-and do in the future- with regards to the wikileaks. I don’t think any of us received the wikileaks in discovery but I really can only speak for myself. The wikileak documents are now going to be made available to us at the secret place-where we work on secret stuff-and this latest secret stuff is about as lame as the earlier secret stuff…but anyway, I digress. We can use the wikileaks in court documents but we have to file it under seal from the secret place. We can now access, comment and cite to secondary reporting-like emptywheel here- for the last month or so I have been avoiding putting anything on my blog that even mentioned wikileaks but now I can do that. We can talk publicly about the information that is in the public domain but not to the extent that it would reveal stuff we learned from non public sources.
    Just to clarify one thing- although it seems like everything gets filed under seal in the gitmo cases that is not exactly correct although it was at one time- many of us try very hard to file as much as we can on the public docket by keeping to non-classified and non “protected” (stuff that is embarassing but not classified!) information.
    So let me see, what can I say about the lying sack of shit regarding my client? if one were to look at the public version of the governments Return in my clients case (the Return is the Answer to the Habeas Petition) one would see that the lies in the Return are actually quite different than the lies in the wikileaks. All lies nonetheless but different lies.

    • bmaz says:

      Yes – “protected information” – it’s the new little black dress for the government, increasingly perfect for all occasions. Bleech. I love the way prosecutors and law enforcement invent new semantics to mask the happy horseshit they are pulling. Protected information is my new favorite. Previously my pet peeve was “person of interest”, the now ubiquitous invented term for “person we want to publicly tar as guilty, but don’t actually have sufficient evidence on”. Because, you know, simply saying we have leads we are pursuing without shitting on whoever they have locked their beady little eyes on ten minutes into an investigation just isn’t good enough

    • MadDog says:

      If you can comment, are these newly promulgated Wikileaks documents security measures only in effect at Gitmo Military Commissions, or are they also in effect in any Article III court proceedings you might undertake for your client(s)?

      • hcgorman says:

        These are definitely the procedures for article III courts- whether it is the same for the commissions I could only guess. My client-like most of the men at guantanamo- will never be charged in a commission- will never be charged in a federal court, and will just languish at guantanamo unless he wins his habeas or someone just decides its time to send him home.

          • powwow says:

            This is what bmaz and hcgorman @ 12 are referencing:

            Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

            Their lawyer, Richard Murphy, explained in an email,

            Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

            This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

            That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

            Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

            I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

            Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

            The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).

            In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.

            * * *

            The D.C. Circuit’s methodology is even more revealing. When a detainee prevails in district court, the D.C. Circuit fashions, if necessary, a rule that rationalizes reversal or remand. When a detainee loses in district court, the D.C. Circuit sometimes uses the appeal as an occasion to tilt the law even further against detainees.

            For example, in al-Bihani (who lost in district court), Judge Brown appeared to accept the government’s contention that any guesthouse where an alleged al Qaeda member stayed is an “al Qaeda guesthouse,” and that any detainee who stayed at an “al-Qaeda guesthouse” is, ipso facto, a member or supporter of al-Qaeda. She implicitly excluded the possibility that a guesthouse can be used by al-Qaeda members and still be a public guesthouse.

            In al-Adahi (who won in district court), Judge Randolph created the “conditional probability” test. Under this test, as Lyle Denniston distilled it (here), “each assertion is to be considered, not for what it says by itself, but how it might make the next assertion seem more solid, and so on, so that the overall weight adds up to enough to support detention.” Citing Judge Silberman’s concurrence in Esmail, Steve Vladeck has suggested (here) that the test, in effect, reduces the “preponderance” standard to a “some evidence” standard.

            Or consider Uthman (who won in district court). In earlier cases, including al-Adahi, the D.C. Circuit criticized district court judges for taking an “unduly atomized” approach to the evidence when ruling for detainees, and instructed them to consider “all of the evidence” as a whole. Judge Kennedy did precisely that in granting Uthman’s petition. On appeal, however, Judge Kavanaugh cherry-picked the government’s evidence and tossed aside Uthman’s, reversing the district court and finding Uthman lawfully held.

            In Mahdwani (who lost in district court), Judge Henderson treated as “strong evidence” of culpability the fact that a detainee gave an exculpatory account of events that the district court does not credit. This conclusion isn’t logical or fair. There could be any number of reasons a detainee offered an exculpability account. Ironically, a detainee who says nothing is better off than a detainee who offers an account of the facts that the district court doesn’t credit.


            Two factors appear to animate the D.C. Circuit’s apparent determination to rule against detainees. The first, exemplified by Judges Randolph and Silberman, is unabashed hostility to Boumediene. They have made quite clear that that they think Boumediene was wrongly decided, and Judge Randolph, in particular, takes every opportunity to undermine it. […]

            – David Remes, 6/8/11

            [Subsequent to this summary by Remes, the D.C. Circuit (i.e, a three-member appellate panel of Silberman, Kavanaugh and Rogers) handed down, on June 10th, its thirteenth Guantanamo habeas merits decision, in Almerfedireversing, of course, a writ of habeas corpus that had been grantedi.e., that had nominally ordered the release of the prisoner Almerfedi, because he had been unlawfully detained without proof that he was an armed conflict “enemy combatant” – by a district court trial judge. -pow wow]

            What was that fancy rhetoric, again, that Supreme Court Justice Stephen Breyer was recently heard delivering outside the Court? Oh, right – from the emptywheel-linked Morris Davis commentary “Torture: Finding Our Moral Compass”:

            Justice Stephen Breyer spoke on the theme of justice and accountability at the 2011 Day of Remembrance at the U.S. Holocaust Memorial Museum. He said, “we need only look around today’s world to understand that rights, rules, the obligations that the law sets forth; all of them are no more powerful than the human will to enforce them.

            How can you “call the balls and strikes,” Chief Justice Roberts & Company, when you refuse to work the game?

            [David Remes, as emptywheel highlights and Charlie Savage indicates in the linked article, is the detainee lawyer (as opposed to “defense” lawyer, in this habeas corpus case) who forced the government’s hand, to the extent described by Candace @ 5, on the verboten WikiLeaked Guantanamo documents. Despite, to date, no help – as I noted (with a lot of other detail) in emptywheel’s April thread – from Judge Paul Friedman, who, since April, has uncomplainingly granted government requests for three consecutive extensions of time for the filing of its response (originally ordered due on May 11, in the “ordinary course” of the rules, but not submitted until yesterday, June 10) to the “emergency” motion that Remes had filed with Judge Friedman on behalf of his Guantanamo habeas client on April 27.]

            • bobschacht says:

              Thank you for your lengthy and discouraging reply. And thanks for the Justice Breyer quote– He’s one of the best that we have left. Breyer’s quote applies equally well to the Obama DOJ, which plainly does not have the will to prosecute torturers or banksters, except for delicately exercised slaps on the wrist to dump thousands of cases from the dockets.

              If habeas corpus is a lost cause, then the law lies exposed as a tool used by elites to manage the hoi polloi. The blindfolded statue of Lady Justice, blindfolded, has become a cruel joke. What a depressing assessment. But I guess it is good to know what the score is.

              Bob in AZ

    • emptywheel says:

      Oh, if you can cite little ol’ ME, then I better redouble my efforts to pick apart the Gitmo files.

      I’m wondering (out loud and not expecting you to answer) whether there’d be a way for ACLU to ALSO FOIA the Return material that doesnt’ correlate w/the Gitmo files.

  5. jo6pac says:

    Who gives a F*&^ about this, 99% of the people were in the wrong place at the wrong time and turned in for a reward, guilt had nothing to do with it. We have turned the corner to fascism and it’s hard to get back. Welcome to the new Amerika

  6. wagthedog says:

    Easiest explanation… those in power are getting rewarded by the revolving door of corruption and bribes on K Street.

  7. bluewombat says:

    they are still not allowed to download, save or print the documents because they might contain restricted information

    These absurd rules show how Kafkaesque and authoritarian our government is becoming. The information is out there. You can look at it, but you can’t remember it. If you can look at it, why can’t you remember it?

  8. ondelette says:

    This is an impossible directive to comply with if any of the materials on Wikileaks are in PDF or many other common document formats using standard viewers. Viewing the documents will automatically cause downloading and saving to occur. Were the lawyer to be raided during or immediately after viewing, he would be found to be out of compliance with the directive.

  9. papau says:

    Irony of course is the fact that as Obama shuts down communication rights in the US, Hillary Clinton seems to have pushed through a program for an “internet in a suitcase” that keeps communication flowing despite dictators in various countries trying to stop dissent/rebellion by shutting down the internet in their country

    Damn good thing we elected Obama. Thank goodness he has been too afraid of Hillary to stop her expansion of the small program that Bush had MIT start in Afghanistan to overcome the Taliban shutting down cell phone service and the internet.