Who Will Redact Our Next Big Constitutional Debate?

In her Gitmo anniversary piece, Dahlia Lithwick, piggybacking on Adam Liptak’s earlier report, used the extensive redactions in the DC Circuit Opinion overturning Adnan Latif’s habeas petition to illustrate how little the courts are telling us about his fate, our detention program, and its impact on the most basic right in this country, habeas corpus.

But in the spirit of the day, I urge you to stop for a moment and look at the decision itself, so heavily redacted that page after page is blacked out completely. The court, in evaluating a secret report on Latif, can tell us very little about the report and thus the whole opinion becomes an exercise in advanced Kafka: The dissent, for instance notes that “As this court acknowledges, “the [district] court cited problems with the report itself including [REDACTED]. … And according to the report there is too high a [REDACTED] in the report for it to have resulted from [REDACTED].” Liptak describes all this as an exercise in “Mad Libs, Gitmo Edition.” But in the end, it’s also an exercise in turning the legal process of assessing the claims of these prisoners at Guantanamo Bay into something that replaces one legal black hole with another: pages and pages of black lines that obscure in words what has been obscured in fact. Americans will never know or care what was done at the camp and why if the legal process that might have transparently corrected errors happens behind blacked-out pages.

Latif’s classified petition for cert has just been filed.

We won’t get to see that petition, though, until after the court redacts it, at which point it will presumably look just like the Circuit Opinion–page after page of black lines.

It’s worth asking who will get to redact that petition, which is after all an important effort not only to free a man cleared for release years ago, but also to restore separation of powers and prevent detainees and Americans alike from being held solely on the basis of an inaccurate intelligence report.

That’s important because, thus far, the existing court documents in this case have been redacted inconsistently.

We know that because the dissent in the Circuit Opinion quotes language from Judge Henry Kennedy’s ruling, yet that language doesn’t appear anywhere in the unredacted sections of his ruling itself. For example, David Tatel refers to the “factual errors” Kennedy described (21; PDF 88) and cites Kennedy’s repetition of Latif’s explanation for having lost his passport–he “gave it to Ibrahim [Alawi] to use in arranging his stay at a hospital.” (37; PDF 104)  Yet the appearances of these phrases have been entirely redacted from Kennedy’s opinion (there are many more fragments for which the same is true, supporting general claims about the inaccuracy of the report, but they are less specific).

Indeed, the Circuit Opinion itself is internally inconsistent, as Tatel’s citations to Janice Rogers Brown’s admission that the district court “cited problems with the report itself” (23; PDF 93), one of which she agreed was an “obvious mistake” (22; PDF 89) appear unredacted in his dissent, but not in the majority opinion itself (indeed, the citations to it are redacted in Tatel’s opinion).

Further, I would bet that one of the obvious errors in the report described by all these opinions pertains to Latif’s nationality. As I lay out in more detail here, the public Factual Return makes it clear that the government recorded Latif’s nationality as Bangladeshi up until March 6, 2002, a month and a half after he arrived at Gitmo.

Ala’dini’s full ISN is ISN-US9BA-00156 (DP), in which the number 156 is Ala’dini’s unique identifier and the BA designation indicates the nationality that Petitioner for a time had claimed. See ISN 156 Knowledgeability Brief (Feb. 2002); ISN 156 SRI (May 29, 2002) (indicating petitioner repeatedly lied about his country of origin (Bangladesh) and gave a fake name in all past interviews). Petitioner Ala’dini, to be clear, has since claimed that he is a national of Yemen. E.g., ISN 156 ISN 156 SIR (March 6, 2002). [¶7 PDF 8]

Since, as the dissent makes clear, the report on which the government primarily relies was “produced in the fog of war,” it must have been produced before Latif arrived at Gitmo (we have every reason to believe it was an intake document reflecting interrogations from when he was picked up in Pakistan). This in turn means it is likely that the report, like the first Gitmo documents, recorded Latif’s country of origin as Bangladesh. And if it does, it would be shocking for that detail to be unmentioned in the legal discussion, particularly since the majority opinion defines the presumption of regularity to mean “the government official accurately identified the source and accurately summarized his statement.” If the report is an interrogation report of Latif himself, identification of him as Bangladeshi would go right to the heart of the presumption of regularity. Just as importantly, both the majority and the dissent describe problems with the report potentially introduced in the translation and transcription. If the government didn’t even know that Latif was Yemeni, not Bangladeshi, it would be centrally important to translation questions. So the government’s errors about Latif’s nationality would seem to be an issue that goes to the heart of the legal discussion about the accuracy of the report. And yet, while Court Security Officers reviewing the Factual Return didn’t find the government’s misidentification of Latif as Bangladeshi to be classified when they redacted that document, it seems likely similar mentions got redacted in all the opinions.

Is the government hiding behind redactions that they’re holding someone indefinitely based on a report that didn’t even get his nationality right?

Finally, if I’m right that the report in question is TD-314/00684-02, we’ll probably be re-entering the Kafkaesque world in which our government asserts that documents released by WikiLeaks remain “classified.”

When I first wrote about the report, it went from the grey area of publication in WikiLeaks and McClatchy’s databases into the public domain. While Chief Justice John Roberts’ censors might not consider my humble blog part of the public domain, Benjamin Wittes cited from my original post on that CIA cable (and the NYT’s Adam Liptak linked to it). It would be hard to dismiss Wittes’s writing at Lawfare as that of a Dirty Fucking Hippie blogger given that both the majority and dissent opinions in this case cite a paper on evidentiary standards in Gitmo cases by him and Robert Chesney. Mind you, I fully expect that if the report is TD-314/00684-02, the courts will continue to redact its serial number, even though it has repeatedly been referred to in reporting on this case. But that, by itself, would say significant things about the transparency of our constitutional processes.

Whether SCOTUS grants Latif cert or not is an incredibly important legal question (with the codification of indefinite detention in the NDAA, these are issues that affect all Americans). We know that one of the only documents that claims Latif had ties to the Taliban was some kind of intake report tied to the processing of 195 detainees captured by Pakistan. We know our government had Latif in custody for months before they figured out he was Yemeni, not Bangladeshi, and the document they claim justifies his continued detention probably repeats that mistake. We know that there are “factual errors” in the report, one of which even Janice Rogers Brown considers an “obvious mistake.” We know that Latif offered what Henry Kennedy considered a plausible explanation for why he didn’t have his passport when he was picked up, a detail that the government claims tends to implicate him.

All of these details suggest the government has an incredibly shoddy case against Latif.

But the government has hidden the shoddiness of its case behind great black walls of redaction. And, just as damning for the government, the government has also hidden these details behind arbitrary redaction practices that don’t even remain consistent over the same document, much less from court to court.

SCOTUS may well deny Latif cert, in which case a man the government cleared for release will continue to be held indefinitely, perhaps for another decade. But if they’re going to do so, they owe it to the American people to show just how shoddy the case they’re deciding on really is.

24 replies
  1. Benjamin Franklin says:

    The only way this works is if you trust the good judgement of the principles, who, ostensibly, have seen the puppet show, been to the circus. Absent that, this ” they owe it to the American people to show just how shoddy the case they’re deciding on really is.” isn’t gonna happen.

  2. orionATL says:

    ew writes:

    “…they owe it to the American people to show just how shoddy the case…”

    they owe the american people nothing. and they are well aware of that fact.

    they owe the american people nothing because there is currently no effective accounting process to establish debits and credits for disciplining or altering the behavior of sitting federal judges no matter the seriousness of their deviations from two and a half centuries of american constitutional law and a millennium of english and american common law.

    we are living thru a lawless age in american history in which the law and the courts serve as willing handmaidens to executive branch lawlessness.

  3. jerryy says:

    The Taliban office in Qatar opening is going to make the claim ‘these folks have to be held until hostilities cease’ a tad bit more hollow. How often can the paperwork be changed to show the detainees really are from a shrinking pool of countries or organizations that are hostile?

    Or will that actually be a growing pool of more and more peeved and annoyed countries…

  4. orionATL says:

    ew writes:

    “…But the government has hidden the shoddiness of its case behind great black walls of redaction…”

    it is indeed “the government” that has done these things, but i consider it important to emphasize that it is our president and his chosen subordinates who have engaged in shoddy practices and shoddy, dishonest lawyering,

    specifically the two presidents – bush and obama – and their chosen subordinates.

  5. emptywheel says:

    @bmaz: Fuck, I hope so. Any idea what the vote on cert was for Boumediene? Cause I assume Kagan will recuse again. THey just need 4 to grant cert, right?

  6. William Ockham says:

    I still haven’t ever figured out the variations in redactions in this court case. Unlike other documents (such as the CIA’s inconsistencies) these just can’t all be mistakes. It’s bizarre, but if someone is sending a message, I don’t think anyone is recieving it.

  7. emptywheel says:

    @William Ockham: I am inching toward attributing the difference in degree in Tatel’s opinion and JRB’s either to JRB meddling, or to a desire to have the legal precedent hide the relevant facts.

    That said, even more is hidden in Kennedy’s ruling. And less in the factual return.

    Maybe the whole thing is about hiding how well Kennedy argued, how badly JRB did, and then have Tatel carry the weight of this precedent even if he didn’t win out.

  8. MadDog says:

    I still wish the petitioners had had first gone en banc to the full appeals court. They might have been able to get Janice Rogers Brown’s ruling of pure stupidity overturned there.

    Because if the Supreme’s don’t grant cert, then this turkey is precedent in at least this district which just happens to be the one hearing the Gitmo cases, and it wouldn’t surprise me if there was precedent creep with this in other districts as well.

  9. hcgorman says:

    Well I can answer two of the questions. Yes, the only need 4 votes to grant cert but if Kagan isn’t voting then they will probably not have the five votes to overturn and so cert probably won’t be granted.
    The question as to who redacts these documents is trickier…it seems there is a redaction “team” at the DOJ. I don’t know too much more in specifics but I was able to file something about that “team” in a public document back when I was trying to get the supreme court to take my client al-Ghizzawi’s second attempt at an original habeas…as best as I can recall the DOJ set up some guidelines for the “team”….habeas counsel of course had no say.
    As to whether Latif is being held because of an alleged connection to the “taliban” I leave you with this WTF moment ;
    “Earlier this month, Vice President Joe Biden said in an interview with Newsweek magazine that the Islamist militants did not represent a threat to U.S. interests unless they continued to shelter al-Qaida….

    “Look, the Taliban per se is not our enemy. That’s critical. There is not a single statement that the president has ever made in any of our policy assertions that the Taliban is our enemy because it threatens U.S. interests,” Biden was quoted as saying by Newsweek….

    I guess that statement is true if we don’t count the DOJ definition of enemy combatant as someone who assisted the taliban or organizations associated with the Taliban…..

  10. orionATL says:

    on matters involving so-called “national security” matters,

    many of which “national security” matters involve not real threats to american national security, but rather cover-ups of prior presidential/executive branch illegality, mismanagement, incompetence, or folly,

    the federal courts are acting in their own interest – by carefully avoiding provoking a national security quarrel with the president/executive branch –

    and in the interests of our american right-wing, authoritarian legal conventions.

    the federal courts are not acting in the nation’s interest or in keeping with american constitutional philosophy.

  11. emptywheel says:

    @hcgorman: Would that filing form the al-Ghizzawi case be something I could find? I get so damned lost in those habeas petitions, probably by design. Isn’t that something you blogged?

  12. bmaz says:

    @hcgorman: Yeah, not sure I can disagree with your whip count on Latif cert status. But I want to disagree really bad, because I think it would make a decent vehicle to finally get SCOTUS to reengage again after Boumediene. Since Kagan has recused on any case she has ever even heard of – other than ACA of course – I suppose not.

    Though, I will say this much, the only appellate filing in Latif made during Kagan’s time at the SG Office was a notice of appeal filed one month before her confirmation to SCOTUS and during a time when, according to everything I understand, she was not participating in squat and Katyal was running the whole show. So, I am not sure she has that much of a freaking conflict, at worst. I think there may be a better shot than you think. Also, not positive Roberts couldn’t be peeled off; he may not want his alma mater court to look quite so bad.

  13. orionATL says:



    scalia goes shooting with dunce cheney without any worries?

    and virginia thomas collects bocoodles of money from right-wing clients?

    and dunce thomas attends right-wing haute couture meetings along with scalia?

    while kagan insists on a maintaining a virginal status with respect to any admin legal action she might have been associated with?

    that’s class –

    isn’t it?

    like i said, seems we just don’t have a working accounting system for judicial conduct.

  14. hcgorman says:

    It would be something I filed in al-Ghizzawi’s case…and I probably filed it in the late summer/early fall of 2009. I had a little spat with the DOJ over my original habeas filing in the supreme court…it was cleared for release and after I posted about it the government realized there was something the “team” forgot to redact. I will try to look for it in the morning.

  15. bmaz says:

    @hcgorman: Well, there are cases that were earlier in the time chain that she has not recused on, and, like I said, damn little obvious points for involvement – just the appeal notice at the end of her stint – though there may have been informal involvement. Kagan was not, however, the world’s gift to litigation strategy experience, so I am thinking she was not a huge sounding board in this manner. I think there is a fair shot, and I like the shot a lot better with her than without her.

  16. thatvisionthing says:

    o/t kinda, but amazing — commenters on Craig Murray’s UK blog (Complicity in Torture) are linking to recent news stories about 1988 PanAm Lockerbie (1) suggesting the plane was configured for US military cargo, and that the unreported huge quantity of “sewing machine needles” found in the wreckage and the damage to the victims suggest it was US ordnance that fired accidentally, set off by the plane’s normal radio transmissions:

    The testimony of one eyewitness at the crash site strengthens the claim that PanAm 103 may not have been brought down by a bomb at all, but by accidental misfiring of mainstream weaponry components carried illicitly on the plane.

    and (2) Scottish police secretly bribed witnesses in the Lockerbie trial:

    “The SCCRC discovered that the two principal identification witnesses were secretly paid huge amounts, each receiving $2m for their evidence.

    “The police concealed these payments from the judges and defence.”

    He added: “The Scottish police are trying to hide this fact from public scrutiny.”

    So no terrorist plot, just us being us, with a little help from our friends?

Comments are closed.