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.

Comments

[publius]

worst most incompetent administration ever -- it's really mind-boggling

[Gary Farber]

Gee, funny how in the past week there have been all these news stories appearing about former Guantanamo inmates allegedly returning to fighting. It's almost as if there were someone, or some agency, leaking/using press contacts to spread that that sort of claim....

For instance.

[d'd'd'dave]

OMG. No comprehensive file folders full of paper. There are only "databases that can be searched". The incompetence is monumental.

[d'd'd'dave]

I can't keep up with the smears. Is low tech (like file folders) good or bad. WAPO headline: "Staff Finds White House in Technological Dark Ages". [http://www.washingtonpost.com/wp-dyn/content/article/2009/01/21/AR2009012104249.html]

[Gary Farber]

No actual computer files on individual detainees, d'd'd'dave. Information on many given detainees can't be put together.

Yes, that would seem to be a bit of a problem, if you were actually trying to determine how guilty or innocent anyone was, or put forward evidence at a trial.

[Buster]

I am weighing my emotional and intellectual response options: (1) shocked (only a little); (2) horrified (a good amount); (3) utterly confused as to how this went on for so long (more than I expected). I imagine I will have to continue this process for the next year as the exact contours of how fucked we've been becomes more and more clear every week.

[d'd'd'dave]

What does this mean?

" a Cabinet-level panel named to review each case separately"

I assume there is staff, right? Or is this what the agriculture and HUD secretaries will be working on?

[Bryan Emrys]

Makes you think they never had any real intention of actually trying a lot of the gulag inmates.

[Dan S.]

"OMG. No comprehensive file folders full of paper. There are only "databases that can be searched". The incompetence is monumental."

{Sigh}

Assuming that the various collaborating claims - from incoming officials, some outgoing officials, Gitmo pro bono folks, former military prosecuters, who knows who else - are correct, the issue isn't that there are no specific RL files stuffed full of papers, but that's ok because there are easily accessible (for appropriate people) electronic databases with all the relevant information - since there apparently aren't. Instead, it kinda sounds like a larger-scale equivalent of my desk at work: cryptic post-its, illegible notes, important documents stored in unlabeled folders of assorted papers in random order, little talus-slopes of nameless cds with everything from old pictures to yesterday's backup, urgent paperwork arranged quite carefully into categories according to a system recorded only in my head and not exactly intuitively obvious, files and trade magazines that I've brought home buried under assorted junk mail, genre paperbacks, and empty soda cans . . .

Except worse, and for something presumably of rather more importance.

[Gary Farber]

"I can't keep up with the smears."

It's great that you have a pipeline to Truth, and know that anything that smacks of reflecting badly on the Bush administration must be a "smear."

Your evidence in this case is? Cite? Or are you just pulling your convictions out of... where?

And you're simply inventing this "low tech"/paper files thing out of whole cloth. I'd like to assume you're just having a problem reading, out of sheer prejudice, rather than unable to understand what you read, or deliberately not acknowledging what's written.

Which part of this do you find hard to understand?

[...] 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.

Which part of this?

[...] discovered that there were no comprehensive case files on many of them.

Which part of this?

[...] "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.

Which part of this?

Charles D. "Cully" Stimson, who served as deputy assistant defense secretary for detainee affairs in 2006-2007, said he had persistent problems in attempts to assemble all information on individual cases. Threats to recommend the release or transfer of a detainee were often required, he said, to persuade the CIA to "cough up a sentence or two."

Which part of this?

A second former Pentagon official said most individual files are heavily summarized dossiers that do not contain the kind of background and investigative work that would be put together by a federal prosecution team. He described "regular food fights" among different parts of the government over information-sharing on the detainees.

Which part of this?

In one federal filing, the Justice Department said that "the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." In another filing, the department said that "defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis."

Which part of this? Evidence gathered for military commission trials is in disarray, according to some former officials, who said military lawyers lacked the trial experience to prosecute complex international terrorism cases. Which part of this?

In a court filing this month, Darrel Vandeveld, a former military prosecutor at Guantanamo who asked to be relieved of his duties, said evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks."

Which part of this?

He said he once accidentally found "crucial physical evidence" that "had been tossed in a locker located at Guantanamo and promptly forgotten."

Where do you find the word/distinction "paper" in any of this? Where do you get the notion that the information is all nicely lookable on computers, in contravention to all the reporting?

Other than in your imagination, that is?

But, hey, give us some counter-cites. You know better, after all, and I'm sure you must be basing that on checkable cites.

[d'd'd'dave]

"All but about 60 who have been approved for release,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."

Jounalist: "I'm going to quote a guy who doesn't know much so I can insinuate that the administration doesn't know much. I can get a 'former official' of the forestry department who didn't read the files to tell me what he heard on CNN about the Gitmo prisoners. I don't have to name him so it won't matter."

[d'd'd'dave]

Thank you for clearing that up for me Gary.

[Jay C]

worst most incompetent administration ever -- it's really mind-boggling

Posted by: publius | January 25, 2009 at 12:08 AM

Even though I'm sure d'd'd'dave will get upset at the aspersions being cast on the late Bush Administration over the matter: but why (publius), do you think that the disarray of the Guantanamo files/lack-of-files is a matter of "incompetence", rather than more-or-less deliberate policy?

[Mike Schilling]

You frustrate me, d'd'd'dave, because at times you make sensible observations about arguments with holes in them or conclusions jumped to, and at times you say very silly things, in this case that it's straightforward to collate information scattered across many government databases, not all of them known to be relevant, some of them classified, that organize information in entirely different ways.

[Jay C]

worst most incompetent administration ever -- it's really mind-boggling

Posted by: publius | January 25, 2009 at 12:08 AM

Just out of curiosity, publius: why do you believe the disarray over the Guantanamo files/lack-of-files is due to Bush Administration "incompetence"? Could this not just as well be a result of more-or-less deliberate policy?

[Jesurgislac]

It takes, well, a special kind of administration to detain people for years on end without bothering to assemble case files on them.

Fascist governments do this sort of thing all the time. Of course, governments whose individual members feel they may be subject to prosecution for committing crimes tend to do this kind of thing under the form of law: while relieved that Bush didn't end his administration with pardons all round, am still wondering about prosecutions for all.

I'm just glad they're finally gone.

Oh, gladness isn't the word. As I've seen multiple people say online since Tuesday, it's like living in a dream: the President of the United States, doing things like banning torture and signing orders to shut down secret prisons and ending the global gag rule. Hillary Clinton is Secretary of State. *beams* I'm all mellowed out. Honest.

But it does bring into sharp relief what damage the US's failed electoral system did, in 2000 and 2004, when the candidate who lost the election got to the White House. Doesn't it?

...and I'm really hoping that one of the things we hear in the first hundred days is going to be "electoral reform"... not least, because I'd kind of like Obama's administration to have 8 years in office.

[Mike Schilling]

But it does bring into sharp relief what damage the US's failed electoral system did, in 2000 and 2004, when the candidate who lost the election got to the White House.

The candidate who got to the White House in 2004 got 3 million more votes than his competitor.

[Jesurgislac]

But who cast those votes, Mike? The voters... or the voting machines? cite, cite, cite... how many links can you have in one comment before it gets treated as spam?

It's great that in 2006 enough Democrats won by landslides too great to be overturned by electoral rigging. It's abso-bloody-lutely fantastic that Obama won by such a margin that no vote-rigging could overcome it. But it would be even better if the US had an electoral system that didn't allow electoral rigging...

...and even better if you'd had fair elections eight years ago, or even four years ago.

But hey. I'm mellow. This is my over-the-moon face. *offers doughnuts*

[Warren Terra]

Remember, the people who set up this system are the same people who tried to block American citizen Jose Padilla's first Habeas Appeal on procedural grounds, before they tried to argue that he had no Habeas rights, by pointing out that Padilla hadn't signed the necessary paperwork. Because, of course, they wouldn't let Padilla know that he had a court-appointed lawyer, let alone permit Padilla to see and to sign the paperwork. You might find this 2003 episode of This American Life interesting.

Even scarier is this 2006 This American Life episode. I've transcribed some key passages:

The Administration quickly put together a kind of hearing based in part on the old Geneva Conventions hearing they'd abandoned. They called this hearing a Combatant Status Review Tribunal, or, in the elegant shorthand of the Pentagon, a CSRT. The new hearings have one oddity to them: the tribunal assumes all the evidence against the detainee is correct. If the detainee wants to prove them wrong it'll be difficult because he's not allowed to see the evidence; it's classified. As a result, these hearings make strange reading.
...
Consider the case of Azmy's client, Murat Kurnaz, a Tukish citizen raised in Germany. The Pentagon accidentally declassified the file with all the secret evidence against him, and here's what's in it: nothing.
...
In Kurnaz's case there're five or six statements saying there's no evidence of any connection to Al Qaeda, the Taliban, or threat to the United States.
...
But here's the thing: at the hearing, nobody talks about any of that. His personal representative doesn't bring it up. The tribunal doesn't consider it, and Kurnaz doesn't know about any of it. He's considered an enemy combatant and he's still at Guantanamo today.

You'll pardon me if I completely lack faith in the people who perpetrated these obvious injustices to have carried out any significant diligence towards giving fair hearings to their detainees.

And may I just say that I am heartily sick of reading quotes like d'd'dave's in which it is flatly stated that a huge number of Gitmo detainees are terrorists. Until the detainees or their lawyers gets to zealously contest the evidence in a fair hearing, the detainees aren't terrorists, they're still suspects. We know for a fact of many cases of mistaken identity and of false accusations by people seeking to get bounties or remove rivals.

[Hartmut]

Jes, fascist regimes can be quite well organized about the prisoner paperwork. Nuremberg would have been much more difficult without the detailed files that were not burned in time.

Caveat: there are disputes whether the 3rd Reich qualified as fascist in the strict sense or in need of a category of its own (no, nothing to do with Goldberg. the debate is much older).

[russell]

Hey dave -

I understand that you think everyone's just picking on Bush, but maybe you want to transfer your loyalty to someone who actually deserves it.

It is highly likely that we will have a very hard time knowing what to do with the folks who are still at Guantanamo. If so, it will be because, due to mishandling of intelligence and evidence against them, and/or due to our use of torture to gain that evidence, we will be unable to prosecute them without doing utter violence to our own system of justice, whether military or civilian.

These are the plain facts.

You're a smart and often sensible guy. There must, surely, be something more worthy of your advocacy than Bush's handling of military prisoners at Guantanamo.

[john miller]

"You're a smart and often sensible guy."

I agree with you russell, which is why I can only assume dave was not really being serious in his comments and that he was jsut trying to push some buttons (at which he succeeded).

Any other reading of his comments would put into question his ability to reason effectively.

[Jesurgislac]

Hartmut: Caveat: there are disputes whether the 3rd Reich qualified as fascist in the strict sense or in need of a category of its own

Well, insofar as the Holocaust was concerned, I would say "category of genocidal governments" rather than "category of fascist governments". The two overlap, but are not identical.

[mythago]

I work at a law firm where our files are largely 'paperless'. If I want to get information about a case, I don't get a file folder off the shelf; I look on the computer. It would be silly to say that there "are no files" on any particular case. Yes, we have searchable databases, too. But if my boss said "I need the Smith-Ngawa file in an hour," I wouldn't look at him blankly and say gee, boss, there's no FILE, I can't do that; I'd simply print or email him all the relevant information, and that would be the file.'

Which is to say that d'd'd'dave is full of it, but you knew that.

[DecidedFenceSitter]

Considering for my government mandated job of managing the protection classified information I'm required to keep a hard copies of multiple records in multiple areas, I'm hard pressed to not believe that this was deliberate.

But then again, I'm allowed to control all my records, I'm not having to pull them in from several different agencies, none of whom want to play nice.

I willing to believe incompetence, or rather haphazard ad-hoc planning.

[d'd'd'dave]

Russell

//There must, surely, be something more worthy of your advocacy than Bush's handling of military prisoners at Guantanamo.//

I agree. But there have been few posts lately about the coming stimulus; a program I oppose. I more or less agree with Erics posts on reforming the military. But I have not commented because there is little to add. All I'm left with are these posts on detention and torture. I get bored with them and end up saying something sarcastic.

If you doubt that there is some Bush-derangement-syndrome going on here just look at Jesurgislac's comment suggesting that the last two elections were rigged. The criticism of Bush goes beyond the objective. [Not that there aren't plenty of real things to criticize]. Now we have to mock the filing system.

It seems to me that these folks were put in Gitmo as prisoners of war and not with the object of prosecution. The idea was to hold them until the war is over - a date that probably will never come. Based on that, I wouldn't expect to have extensive files of prosecutorial evidence around. I accept that the observers here do not think the concept is legal. But to wave your arms now and say 'they didn't keep coherent prosecution files' when they weren't really trying to prosecute in the first place seems silly to me.

Okay. They didn't keep files. But what did you expect?

Further, and this goes back to my exchange with Gary, the article suggests that CIA has info on these guys but getting CIA to disgorge it is hard.

I'm not trying to justify Bush.

[d'd'd'dave]

//d'd'd'dave is full of it, but you knew that.//

Perhaps so.

Counterpoint to Jes.

[Nell]

No. It's not incompetence.

The goal was to keep as many of the Guantanamo prisoners locked up forever with no process for as long as possible, and to have splashy convictions in show trials timed to affect the 2008 elections.

It was essential to these goals to maintain the propaganda line that everyone at Guantanamo was 'the worst of the worst'. Evidence, in the form of organized, easily reviewable files, would shatter that lie. Hence such files could not be allowed to exist. This result is easy to achieve when the creation of files worthy of the name would require pulling information out of several agencies, as well as giving advocates for the prisoners the ability to review and add or remove material.

The integrity of at least eight of the military participants in the show-trial process prevented them from going off on schedule. The election of Obama and, we hope, the commitment of his administration to end all but absolutely necessary secrecy should prevent prolonged further detention of all but a handful of prisoners at Guantanamo.

But we're holding 15,000 Iraqis who on average have languished in U.S. military prisons for four years with no charges or due process. The number in Afghanistan is at least double that, and it's not clear to me who, if anyone, has the list of prisoners, locations, and dates that would be the bare minimum necessary to begin to apply any kind of process.

[Mike Schilling]

If you doubt that there is some Bush-derangement-syndrome going on here just look at Jesurgislac's comment suggesting that the last two elections were rigged. The criticism of Bush goes beyond the objective. [Not that there aren't plenty of real things to criticize]. Now we have to mock the filing system.

That is, you're saying that Jes's comment retroactively taints Hilzoy's post. The posting rules prevent me from describing that "logic" as vividly as I'd like to.

[Jesurgislac]

If you doubt that there is some Bush-derangement-syndrome going on here just look at Jesurgislac's comment suggesting that the last two elections were rigged.

Wow. So, my comment made at January 25, 2009 at 03:15 AM, somehow in your mind justifies your comments made at January 25, 2009 at 12:25 AM, 12:32 AM, 12:45 AM, 01:02 AM - all of which were posted as "counterpoint" to my comment over two hours later?

just look at Jesurgislac's comment suggesting that the last two elections were rigged. The criticism of Bush goes beyond the objective.

No, it really doesn't.

It seems to me that these folks were put in Gitmo as prisoners of war and not with the object of prosecution.

No, they weren't. Prisoners of war have a legal status and legal rights - not least, the right to communicate with their families, and for their next of kin to be informed where they are. Prisoners of war may not be held incommunicado. They're also entitled not to be held in isolation from each other. And, if accused of a crime, entitled to the same standards of justice as their detainers would apply to their own soldiers.

The Bush administration argued consistently, from the very beginning, that their prisoners in Guantanamo Bay and Bagram Airbase were not prisoners of war, but civilians who had committed the crime of fighting against American invaders, or terrorists who intended to attack somewhere or other: or at least, as we know with many of them, they had been sold to the US occupation in Iraq for a bounty, on the unchecked claim that they were "al-Qaeda" or "Taliban fighters".

This has all been known and clear for years, d'd'd'dave. Why use my grumblings about your rotten electoral system as a justification for your acting ignorant and stupid about what the Bush administration has done to their kidnap victims?

[CaseyL]

Remember the Bushies pulled the same tactic during the investigation into politicized DoJ hirings and firings? Kyle Sampson, called to testify re how firing decisions were made, referred to himself as an "aggregator" of information - information which also didn't exist in files, but (IIRC) as random post-it notes and stray doodlings stuck into a hanging folder.

[mythago]

Okay. They didn't keep files. But what did you expect?

You would expect them to keep files. Because even if they were merely warehoused indefinitely, you would want to keep information about who they were, what they did and the evidence for those things for intelligence purposes if for no other reason whatsoever. What good is an interrogation of Mr. A if nobody has any way to determine who Mr. A is, what rank he held in al-Qaeda, whether he belonged to any other enemy organizations, who his contacts were and whether or not we have any of Mr. A's other associates detained?

I mean, setting aside that whole rule of law, we don't lock people up forever without trying to find out if there's a reason for it, thing.

[Gary Farber]

"how many links can you have in one comment before it gets treated as spam?"

Four.

[Uncle Kvetch]

It seems to me that these folks were put in Gitmo as prisoners of war and not with the object of prosecution.

They were most emphatically not "put in Gitmo as prisoners of war." Prisoners of war have very clearly delineated rights under international treaties that the US has signed. The entire premise behind Guantanamo was to carve out an entirely new status for these people, one that would put them beyond the reach of both US law and international law, leaving them completely at the mercy of the whim of the President.

So it seems to me that the way it seems to you has no basis in reality, but is simply what you'd like to believe.

[mark]

To the other guy who wrote they were "incompetent".

No, I do not think they were. Besides, it would be just as disastrous that incompetent politicans decide what should happen with taxpayers money.

I think we should call it with the real name:

CORRUPTION

And it is a shame that in the year 2009 such high level corruption can take place.

[D. Goen]

I am as much of an expert as any other "well-placed source." I worked as a secretary for the department of defense for almost 20 years. I can attest to the following: every word processor in every office was a different type, model, and year/place of manufacture. The person who selected said hardware (and yea, software) was a full Colonel who was invited to a products show complete with an open bar and 20 dizzy/dancing demonstrators. Once the data was entered into the myriad array of machines, the regulations for labeling the files were all but unintelligible. The person doing the data entry was a GS-3 who took her instructions from a 30+ year veteran MSgt who had a sixth-grade education and thought reading comprehension was a new drink invented by the NCO club in Pennsylvania. If there was a back-up hard copy file it was probably filed "Incoming Memos," "Outgoing Memos." The disposition on file label stated, "Destroy when superseded, obsolete, or no longer needed for reference." Think I'm kidding? I kid you not. A former filer of all things important - dg.