Obsidian Wings

A Big Day in Bagram

by publius

Good news on the national security front – a federal district court granted habeas rights yesterday to certain detainees being held at Bagram Airfield in Afghanistan (pdf here).  In doing so, the court applied – and relied on – the Supreme Court’s landmark Boumediene case from last year.  (For those interested, hilzoy has written extensively on the Bagram detainees).

My quick take is that (1) the opinion is actually quite narrow; and (2) the result is correct – indeed, any other result would have essentially overruled Boumediene.

First, although I expect to hear shrieks about activist judges, the opinion was quite narrow – applying to only four of the hundreds of Bagram detainees.  Unlike most of the detainees, these four had been captured in other countries and shipped to Afghanistan for detention.  In this respect, they are essentially identical in status to the Gitmo detainees.

The opinion did NOT grant habeas (or even consider it) for the more traditional prisoners captured on the Afghanistan battlefields.  Like hilzoy, I tend to agree that habeas shouldn’t extend to them – assuming of course that this group is clearly identified as traditional prisoners of war entitled to Geneva Convention rights.  (Notably, this opinion creates incentives to draw these types of clearer lines to avoid habeas litigation). 

But anyway, everyone should keep in mind that the opinion is narrow in scope.

Second, the court’s result is basically compelled by Boumediene.  In a nutshell, Boumediene held that the kangaroo review procedures under the MCA/DTA were an insufficient substitute for traditional habeas protections – and therefore unconstitutional.  The government doesn’t necessarily have to provide habeas to vindicate constitutional rights – but it’s gotta provide somethin’ in its place.  And this didn’t cut it, the Court found.

Boumediene, however, applied only to Gitmo detainees – and there was an open question about whether the case would reach beyond Gitmo to detention facilities in other countries.  Yesterday’s decision said "yes it does" - and that’s what makes it so significant.

And that decision seems clearly correct.  In fact, it’s a no-brainer once you accept Boumediene (as a district court must).  The four detainees in question are identical to the Gitmo detainees (actually, they have a stronger case).  For one, they had not been captured on the Afghanistan battlefields, but had been shipped in from other countries.  In addition, they were provided even less procedural protections than the Gitmo detainees enjoyed - in a facility controlled just as completely by the United States. 

In fact, if the district court had reached the opposite conclusion, it would have effectively overruled Boumediene.  Specifically, it would have allowed the administration to avoid Boumediene's holding by shipping every Gitmo detainee to Bagram.  From a purely policy perspective, this seems absurd given that it would create incentives to build detention centers near active theaters of war simply to avoid legal review and messy constitutional requirements.

Fortunately, the district court did the right thing – though its effect may prove fleeting on appeal.  Indeed, the final result will likely depend on whether Justice Kennedy's Cocoa Puffs tasted funny that morning.

"We Freely Chose To Embrace The Caricature They Had Made Of Us"

by hilzoy

Mark Danner has acquired a copy of the ICRC's interviews with the fourteen "high-value" detainees who were transferred from CIA black sites to Guantanamo, and he has written about it in the NYT and (a longer version; unless noted, quotes are from this piece) in the New York Review of Books. It's horrifying. Danner quotes George W. Bush saying: "The United States does not torture. It's against our laws, and it's against our values. I have not authorized it -- and I will not authorize it." 

And yet, somehow, he did. From a man who had lost a leg, and who was forced to stand for two weeks, "apart [from] two or three times when I was allowed to lie down":

"After some time being held in this position my stump began to hurt so I removed my artificial leg to relieve the pain. Of course my good leg then began to ache and soon started to give way so that I was left hanging with all my weight on my wrists. I shouted for help but at first nobody came. Finally, after about one hour a guard came and my artificial leg was given back to me and I was again placed in the standing position with my hands above my head. After that the interrogators sometimes deliberately removed my artificial leg in order to add extra stress to the position...."

This seems to have been pretty common:

"I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor. Of course during this month I fell asleep on some occasions while still being held in this position. This resulted in all my weight being applied to the handcuffs around my wrist resulting in open and bleeding wounds. [Scars consistent with this allegation were visible on both wrists as well as on both ankles.] Both my feet became very swollen after one month of almost continual standing."

But Donald Rumsfeld stands at his desk for eight hours a day, so I don't know what these people are complaining about.

A number of detainees report some variant on this:

"Also on a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room. It was also placed around my neck when being taken out of my cell for interrogation and was used to lead me along the corridor. It was also used to slam me against the walls of the corridor during such movements."

Or: 

"I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room."

There's lots more, all of it appalling. Danner's conclusion in the NYT piece:

"From everything we know, many or all of these men deserve to be tried and punished -- to be "brought to justice," as President Bush vowed they would be. The fact that judges, military or civilian, throw out cases of prisoners who have been tortured -- and have already done so at Guantanamo -- means it is highly unlikely that they will be brought to justice anytime soon.

For the men who have committed great crimes, this seems to mark perhaps the most important and consequential sense in which "torture doesn’t work." The use of torture deprives the society whose laws have been so egregiously violated of the possibility of rendering justice. Torture destroys justice. Torture in effect relinquishes this sacred right in exchange for speculative benefits whose value is, at the least, much disputed.

As I write, it is impossible to know definitively what benefits -- in intelligence, in national security, in disrupting Al Qaeda -- the president’s approval of use of an "alternative set of procedures" might have brought to the United States. Only a thorough investigation, which we are now promised, much belatedly, by the Senate Intelligence Committee, can determine that.

What we can say with certainty, in the wake of the Red Cross report, is that the United States tortured prisoners and that the Bush administration, including the president himself, explicitly and aggressively denied that fact. We can also say that the decision to torture, in a political war with militant Islam, harmed American interests by destroying the democratic and Constitutional reputation of the United States, undermining its liberal sympathizers in the Muslim world and helping materially in the recruitment of young Muslims to the extremist cause. By deciding to torture, we freely chose to embrace the caricature they had made of us. The consequences of this choice, legal, political and moral, now confront us. Time and elections are not enough to make them go away."

An investigation is essential, if only to answer once and for all the question: how much actionable intelligence did we get from this, and how many wild goose chases did we send people off on? But prosecutions would be much, much better. Because our government should not be able to do this with impunity.

Al-Marri Will Face Trial

by hilzoy

Good news:

"Federal prosecutors are preparing to charge Ali Saleh Kahlah al-Marri with providing material support to al-Qaeda terrorists in a groundbreaking move that would put the alleged sleeper agent under the jurisdiction of the U.S. court system, according to sources familiar with the issue.

Indicting Marri in a federal court marks a significant change from the policies of the Bush administration, which had argued that al-Marri should be tried in a military tribunal proceeding and that he could not use American courts to contest his legal status.

Marri is the last remaining "enemy combatant" in the United States and has spent 5 1/2 years in a military brig in South Carolina. The criminal charges, which sources said also could include conspiracy, will be among the most early and critical signals about the Obama administration's approach to handling alleged terrorism suspects."

One more person moved out of legal limbo and into our normal court system. One less person about whom people could argue that he somehow must be tried under a whole new legal system, those that have served us well for over two centuries being somehow inadequate to his case. And one less blot on our commitment to the rule of law. 

***

UPDATE: Jane Mayer reports that al-Marri has been indicted, and adds:

"An indictment would signal a major shift in legal policy from the Bush years. It would also fulfill President Obama’s campaign pledge to restore traditional American legal practices by treating terror suspects as common criminals, rather than stripping them of standard legal rights and classifying them neither as criminal defendants nor prisoners of war."

Habeas Rights At Bagram

by hilzoy

From last Friday's NYT:

"The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release. (...)

The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.

The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.

The Obama administration's decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration's policy of indefinitely detaining "enemy combatants" without trials."

I am very much of two minds about this. I explain why below the fold.

Free The Uighurs

by hilzoy

Yesterday, a federal appeals court ruled (pdf) that it cannot order the release of the seventeen Uighurs who remain at Guantanamo, and that no court has the power to do so. The case will presumably be appealed to the Supreme Court. But there is absolutely no reason for President Obama to wait on the courts' rulings. 

The Uighurs have been cleared of all charges. Uighur communities in this country are prepared to help them out if they are released. The Uighurs are not, and never were, enemy combatants. Some of them are starting their eighth year of captivity. During much of that time, their families did not know whether they were alive or dead. Some of them have children they have never met.

President Obama does not need the court's permission to order their release. He could do it today, and he should. 

Seven years of wrongful captivity is more than enough.

State Secrets: Updates

by hilzoy

Two bits of welcome news. First, Sens. Leahy, Kennedy, and Specter have reintroduced the State Secrets Protection Act (S. 417). Thomas doesn't have the text yet, but Leahy's press release claims that "the legislation was initially proposed in the 110^th Congress", which sounds as though it is the same bill described here. That bill states that the State Secrets Privilege can normally not be used to dismiss an entire case or claim. Moreover, it states (4054(c)):

"A Federal court shall conduct a hearing, consistent with the requirements of section 4052, to examine the items of evidence that the United States asserts are subject to the state secrets privilege, as well as any affidavit submitted by the United States in support of any assertion of the state secrets privilege, and to determine the validity of any assertion of the state secrets privilege made by the United States."

That means that it would no longer be possible for the government to get a case dismissed, or a piece of evidence suppressed, simply by claiming that national security requires it. A judge would have to look at the evidence and decide that the government was right. This is enormously important. I hope it passes, and soon: the State Secrets privilege in its present form is an invitation to abuse.

Second, from the Washington Post:

"The British government said yesterday that it is dispatching a team of officials, including a police doctor, to Guantanamo Bay to visit a former British resident on a hunger strike to be prepared for his return home to the United Kingdom.

The statement by British Foreign Secretary David Miliband stopped short of saying that the Obama administration has decided to release Binyam Mohammed, a native of Ethiopia whose case has been the subject of high-profile litigation in Washington and London. But the step appears to be a prelude to release, and it is one of the first overt indications that the Obama administration is accelerating the process of freeing some prisoners to meet its goal of closing the U.S. military prison in Cuba."

Binyam Mohamed is one of the five plaintiffs in the case in which the Obama administration invoked the State Secrets privilege last Monday. (He's the one who was identified as a terrorist when he confessed, under torture, to have read a spoof article by Barbara Ehrenreich about how to build an H-bomb, and afterwards had his penis sliced up.) Charges against him were dropped months ago. I hope the reports that he will be released are accurate. (He is the only one of the five plaintiffs in this case who is still in US custody. Here are biographies of the others: 1, 2, 3, 4.)

One of the many things that bothered me about the Obama administration's invocation of the State Secrets privilege in this case was the apparent indifference to justice. It seemed to be all about what was convenient for the government, and not at all about allowing people who allege horrific treatment at our hands to have their day in court. I still hate the invocation of the State Secrets privilege. And I do not for a moment think that releasing Binyam Mohamed constitutes justice in his case, let alone in the cases of the other plaintiffs. But it is something beyond blank indifference. I suppose it says something about how low my expectations are that that matters to me.

***

While I'm on this topic: Mohamed's lawyer has alleged that DoD officials censored a letter that he sent to Barack Obama about what his client had gone through. His evidence seems to be that he (the lawyer) got a redacted copy (pdf) of the letter back. I agree with Ken Gude at CAP that this is implausible:

"Whatever the motivations of the DOD official that blacked out the material attached to Clive’s letter, it was certainly not to prevent President Obama from seeing it. In order for that to be true, we would have to construct a scenario in which a presidential aide brings to Obama this letter asking that specific information be de-classified, but when Obama asked what information, he was handed two completely blacked out pages and that’s the end of the story. Seriously, does that sound plausible?"

More to the point, does it sound plausible that some DoD official could have blacked out these pages in order to keep Obama from seeing them and succeeded? The President can see any classified information he wants. And if I were trying to prevent him from seeing something, handing him a letter with two pages blacked out would not be my method of choice.

Ask Dr. Rendition!

by hilzoy

Since the publication of the LA Times story about rendition yesterday, I've noticed some confusion about the topic. So Dr. Rendition will try to answer your questions.

Q: What is rendition? 

A: Rendition is the act of transferring a person into a different jurisdiction. 

Q: "It occurs to me that this more benign definition of rendition as transferring someone to another criminal justice system, used to be called extradition. Can someone explain the difference to me?"

A: Extradition is one form of rendition, as you can see from Lawyers.com's Glossary of Legal Terms, which defines 'Rendition' as "extradition of a fugitive who has fled to another state." Here's a nice example of the term's normal usage from a hundred-year-old case:

"Among the powers of governors of territories of the United States is the authority to demand the rendition of fugitives from justice under 5278 of the Revised Statutes, and we concur with the courts below in the conclusion that the governor of Porto Rico has precisely the same power as that possessed by the governor of any organized territory to issue a requisition for the return of a fugitive criminal."

That was just the first case I found when I looked. There are lots more.

Q: But extraordinary rendition means sending someone off to be tortured, right?

A: No. Extraordinary rendition is rendition outside normal legal frameworks. (Extradition is a form of "ordinary" rendition.) It includes sending people off to countries where we have reason to think that they will be tortured. But it also includes things like catching Osama bin Laden in another country and bringing him to the United States to stand trial. What makes something a case of extraordinary rendition is the way the person is transferred from one jurisdiction to another, not what happens to that person once s/he arrives.

Q: But don't most people who talk about 'rendition' just mean 'sending people off to other countries to be tortured'? 

A: Probably. That's the kind of rendition that became famous when Bush was in office. But remember: lawyers are not most people. They use all sorts of words in peculiar ways (besides using words like 'estoppal' that normal people don't use at all.) To them, this is a technical term. They use it accordingly.

Q: So when the LA Times quotes the Washington advocacy director for Human Rights Watch as saying that ""Under limited circumstances, there is a legitimate place" for renditions", he might just mean that he has no objection to legal extradition?

A: He might. Offhand, it seems more likely that he's referring to extraordinary rendition in its technical sense, and saying that it might be OK in some cases. Imagine, for instance, a modified version of Glenn Greenwald's hypothetical: Osama bin Laden is living in a country whose intelligence and police forces we know have been seriously infiltrated by al Qaeda. We have a warrant for his arrest, but we believe that if we asked that country to arrest him, the police would tip him off and he would escape. We also believe that he is planning further attacks. Is it OK to capture him in that other country and bring him to the US to stand trial? If you think not, ask yourself whether there is any attack so awful that, if we had convincing evidence that he was planning it, and convincing evidence that the police force of the country he was in had been compromised, we would be justified in capturing him ourselves.

Capturing bin Laden under these circumstances in order to bring him to trial here is extraordinary rendition. When the Israelis snatched Adolf Eichmann and brought him to stand trial in Jerusalem, that was extraordinary rendition. If you think any such cases could ever be justified, then you agree with the Director of Human Rights Watch that ""Under limited circumstances, there is a legitimate place" for renditions".  Obviously, this does not imply that you approve of sending people off to Syria to be tortured. And if you had previously said that the US should "repudiate the use of rendition to torture", saying that it would be OK, under these circumstances, to capture bin Laden and bring him to trial would not constitute a "flip-flop", since this would not be "rendition to torture."

Q: But I thought that the official translation of that Human Rights Watch statement was "all that stuff about the need to end rendition? “Oh, that’s just what we call pillow talk, baby, that’s all.”

A: You were misinformed.

Q: Isn't all this just hairsplitting in a frantic attempt to defend The One from criticism?

A: No. If you think that the difference between extradition and sending someone off to Uzbekistan to be tortured is just semantics, you probably need to work on your reading comprehension skills.

Q: Have you "screeched hysterically over the CIA practice of rendition" "for the last seven years"?

A: No. I can't recall screeching hysterically about rendition even once, let alone for seven whole years.

Q: Do you have "truly disturbing, quasi-sexual “rendition” fantasies" involving Doug Feith?

A: No. *shudders*

Q: Why does Michael Ledeen think you're a guy?

A: No idea. You'll have to ask her.

The LA Times On Rendition

by hilzoy

The LA Times has an article today called "Obama preserves renditions as counter-terrorism tool":

"The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool. 

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street. (...)

"Obviously you need to preserve some tools -- you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."(...)

The decision to preserve the program did not draw major protests, even among human rights groups. Leaders of such organizations attribute that to a sense that nations need certain tools to combat terrorism. 

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."

Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said."

If the LA Times is right to claim that the Obama administration has left open the possibility of extraordinary renditions, that would be a huge problem. However, I don't think it is. Here it helps to have spent some time reading the actual orders. The order called "Ensuring Lawful Interrogations" contains the following passage:

"Sec. 6.  Construction with Other Laws.  Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to:  the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340 2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109 366; the Geneva Conventions; and the Convention Against Torture.  Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties."

Part 1, Article 3 of the Convention Against Torture states:

"1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

Obama orders people to comply with the Convention Against Torture, and that Convention states that we cannot return people to states where there are substantial grounds to believe that they will be tortured. And nothing the Obama administration has done to date suggests to me that they would engage in the kinds of creative reading of legal documents that would allow them, say, to disregard Egypt's long record of torture in making this determination.

Moreover, Obama's Executive Order also establishes a commission one of whose goals is:

"to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control."

So in addition to announcing that the administration will obey the Convention Against Torture, the administration will also study not whether to send detainees off to be tortured, but how to ensure that our policies are not intended to result in their torture, and will not result in their torture. This seems to me like a very clear renunciation of the policy of sending people to third countries to be tortured. His executive order also precludes any kind of secret detention of prisoners, and thus "secret abductions and transfers of prisoners":

"All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies."

Note that this has no exceptions for short-term detainees whom we quickly hand off to someone else.

So what accounts for the LA Times' story? The Times cites "Current and former U.S. intelligence officials" in support of its thesis. I don't take the statements of former administration officials as evidence of anything in this regard, since they would not be privy to the Obama administration's thinking. Moreover, there have been a whole lot of "former administration officials" wandering around saying that once Obama got into office and saw how tough things really were, he would be forced to adopt their policies, only to discover that -- surprise, surprise! -- he doesn't. I don't see much reason to take their opinions as probative this time.

Obama officials, of course, are a different story: they would know, and they have no vested interest in believing that the previous administration's policies are somehow inevitable. The Times quotes only one official, who says: "The legal advisors working on this looked at rendition. (...) if done within certain parameters, it is an acceptable practice." It's important, here, to note that extraordinary rendition is not the same as rendition proper. Rendition is just moving people from one jurisdiction (in the cases at hand, one country) to another; includes all sorts of perfectly normal things, like extradition, which are not problematic legally. Extraordinary rendition is rendition outside these established legal processes: e.g., kidnapping someone abroad so that s/he can be brought to the US to stand trial, or delivering someone to another country to be tortured.

The author of the Times article, however, defines "rendition" as "secret abductions and transfers of prisoners to countries that cooperate with the United States." [UPDATE: As Gary notes in comments, he uses 'rendition' more broadly elsewhere in the article. That just makes it odder that in when he says what he takes rendition to be, he mischaracterizes it. END UPDATE.] It's not clear whether he knows that rendition includes perfectly normal things like extradition. It's also not clear that he knows that extraordinary rendition includes not just cases in which we transfer a detainee to another country, but cases in which we capture someone abroad and take them to this country to be tried. 

What is clear, however, is that Obama's executive order prohibits sending people off to other countries where there are substantial grounds to think that they will be tortured, and commits his administration not just to hoping that this will not happen, but to trying to figure out how to keep it from happening. I will continue to watch what the Obama administration does. If they backtrack on their commitment not to engage in extraordinary rendition, I will call them on it. But I don't think that this article provides evidence that they will.

There Are No Files, Part 2

by hilzoy

This morning, I read this declaration in a GTMO case (pdf). It's very much worth reading: the author, LTC Darrel Vandeveld, is a member of the Reserve JAG Corps who has served in Iraq and Afghanistan. He was the lead prosecutor against a detainee, Mohammed Jawad, until he resigned last September. After spending over a year on the case, he became convinced that the government had no good case against Jawad, that Jawad had been badly mistreated and was suffering serious psychological harm, and that continuing to hold him was "something beyond a travesty." (p. 1) That's why he wrote the declaration in question, in support of Jawad's habeas petition.

Jawad was between fifteen and seventeen when we took him into custody. That was more than six years ago.

I wasn't reading this because I thought it might have something to do with last night's post on files. Imagine my surprise, then, when I found the following, on p. 3 (note: OMC-P is "Office of Military Commissions -- Prosecutions"; CITF is "Criminal Investigative Task Force"):

"7. It is important to understand that the "case files" compiled at OMC‐P or developed by CITF are nothing like the investigation and case files assembled by civilian police agencies and prosecution offices, which typically follow a standardized format, include initial reports of investigation, subsequent reports compiled by investigators, and the like. Similarly, neither OMC‐P nor CITF maintained any central repository for case files, any method for cataloguing and storing physical evidence, or any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution. While no experienced prosecutor, much less one who had performed his or her duties in the fog of war, would expect that potential war crimes would be presented, at least initially, in "tidy little packages," at the time I inherited the Jawad case, Mr. Jawad had been in U.S. custody for approximately five years. It seemed reasonable to expect at the very least that after such a lengthy period of time, all available evidence would have been collected, catalogued, systemized, and evaluated thoroughly -- particularly since the suspect had been imprisoned throughout the entire time the case should have been undergoing preparation.

8. Instead, to the shock of my professional sensibilities, I discovered that the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases primarily under the control of CITF, or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely‐labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty. The state of disarray was so extensive that I later learned, as described below, that crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten. Although it took me a number of months ‐‐ so extensive was the lack of any discernable organization, and so difficult was it for me to accept that the US military could have failed so miserably in six years of effort ‐‐ I began to entertain my first, developing doubts about the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations."

Its description of the lack of GTMO case files is not even close to being the most important part of this declaration, which is worth reading in its entirety (it's only 14 pages long, and quite well-written.) It just makes me angry when an anonymous "former senior official" can say that when the Obama administration claims that there are no case files, it is just "'backpedaling and trying to buy time' by blaming its predecessor." That "former senior official" is counting on the fact that most people have no idea whether there are case files on GTMO detainees, and thus no idea who is telling the truth. So s/he thinks that s/he can say anything, and who's to say that s/he's wrong? 

That makes me angry. Not nearly as angry a lot of other things about this case, some of which I've put below the fold, but it's the only one I can do something about.

There Are No Files

by hilzoy

From the Washington Post:

"President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials -- barred until the inauguration from examining classified material on the detainees -- discovered that there were no comprehensive case files on many of them.

Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration's focus on detention and interrogation made preparation of viable prosecutions a far lower priority.

But other former officials took issue with the criticism and suggested that the new team has begun to appreciate the complexity and dangers of the issue and is looking for excuses.

After promising quick solutions, one former senior official said, the Obama administration is now "backpedaling and trying to buy time" by blaming its predecessor. Unless political appointees decide to overrule the recommendations of the career bureaucrats handling the issue under both administrations, he predicted, the new review will reach the same conclusion as the last: that most of the detainees can be neither released nor easily tried in this country.

"All but about 60 who have been approved for release," assuming countries can be found to accept them, "are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people," said the former official who, like others, insisted on anonymity because they were not authorized to talk to reporters about such matters. He acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself."

Hmm. Incoming officials say there are no files. Some Bush administration ex-officials agree, but others say that there are files, and that the Obama administration is just making excuses. Who is right?

As it happens, a couple of weeks ago, I wrote that deciding what to do with individual detainees at Guantanamo "will require going through all their files and evaluating the evidence against them". About an hour later, CharleyCarp, who is in a position to know, and who is, in my experience, absolutely trustworthy, replied: 

"There aren't files. No one believes this at first, and it takes a long time to accept it, but really, that's it: no files. There are databases that can be searched . . ."

It takes, well, a special kind of administration to detain people for years on end without bothering to assemble case files on them. I'm just glad they're finally gone.