Court Dockets Are Becoming the 21st Century Memory Hole

/in /by

Dafna Linzer has two important pieces on the habeas petition of Abdul Rahim Mohammed Uthman which should both be read in full. This one describes how the government’s case against Uthman, which alleges that he was one of Osama bin Laden’s guards, relies on the following testimony:

  • A statement from Hakim Abd Al Karim Amin Bukhari describing him as a member of OBL’s security detail. In his opinion on the case, Judge Henry Kennedy Jr treated that statement with skepticism because he believed it may have come second-hand from information Bukhari learned at Gitmo, and because Bukhari had become psychotic while at Gitmo, which rendered his statements about other detainees–according to a military psychologist–unreliable.
  • A witness statement from Abdul Rahman Ma’ath Thafir al Amri, based on a photograph, identifying Uthman as “Yasser Al-Madani.” As Linzer points out, calling him “al-Madani” would label him as a Saudi, not as the Yemeni he is. Al Amri killed himself three years ago after a hunger strike at Gitmo.
  • A statement from Salim Hamdan identifying Uthman as “Hudayfah al-Adani,” which is one of the few things Kennedy accepted as credible.
  • A statement from Yemeni detainee Sharqawi Abdul Ali al Hajj identifying Uthman as an OBL bodyguard. Before making that statement at Gitmo, Hajj was tortured in Jordan over a period of 19 months in Jordan. Kennedy ruled that Hajj’s statement was too closely tied to the torture he experienced in Jordan to be considered reliable.
  • A statement from Yemeni detainee Sanad Yislam al Kazimi saying a photo of Uthman looked like Hadayfah al-Yemeni, whom Kazimi claims to have seen in Kabul several months before Uthman arrived in Afghanistan. Kazimi claims to have been severely tortured in Dubai and Kabul in 2003. As a result, Kennedy deemed his statement, like Hajj’s, to be too closely tied to torture to be treated as credible.

Go read Linzer’s piece for much more on the thin case against Uthman. And note, Uthman is one of the 48 men the government claims it has reason to hold indefinitely.

The other piece provides background on how Linzer was able to piece together all those details from Kennedy’s opinion. As she describes, DOJ accidentally submitted Kennedy’s opinion without redacting it. Only after she pulled a copy of it did DOJ remove it from PACER entirely and–a day later–replace the opinion with a significantly altered version.

A day after his March 16 order was filed on the court’s electronic docket, Kennedy’s opinion vanished. Weeks later, a new ruling appeared in its place. While it reached the same conclusion, eight pages of material had been removed, including key passages in which Kennedy dismantled the government’s case against Uthman.

[snip]

The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government’s case were deleted. Even the date and circumstances of Uthman’s arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured “in late 2001 in the general vicinity of Tora Bora,” the cave complex where bin Laden was thought to be hiding at that time.

Linzer’s story provides a detailed background of what happened with this opinion: how DOJ tried to reclaim all the copies of it, how Kennedy had to insist on an opinion being published at all, how they forced Kennedy to write another version, how DOJ has since released the government’s appeal of Kennedy’s order with information redacted in his opinion left unredacted in their appeal.

Particularly troubling is Linzer’s description of how the completely altered opinion falsely suggests Uthman was present at Tora Bora with Osama bin Laden, even while it hides evidence that he was turned over by Pakistanis implicated in turning over Arabs for bounty.

Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

Now all of this is disturbing enough. But I’m particularly interested in the way DOJ tried to hide the fact that the opinion had been altered.

Even the court docket was altered. When the opinion was originally posted on March 16, the docket noted Kennedy’s grant of the writ of habeas corpus to the petitioner. Today, the entry for March 16 simply reads: “Document Entered In Error Erroneously.”

That is, the government is using classification to conduct legal spin, and then it is hiding all evidence they have done so. This is the same DOJ, of course, that is disappearing all evidence of the proceedings against high level Colombian terrorists extradited for drug-related infractions (but not terrorism), and in the process, removing them from Colombia’s reconciliation process. While it’s not clear whether the government is doing the latter just to protect an ongoing investigation or doing it to protect the members of the Colombian government with ties to these right wing terrorists, the way in which the government has turned the court docket into a memory hole seems to be playing a central role in completely arbitrary designations of who is and who is not a terrorist.

The war on terror has become capricious enough. But as the docket increasing gets treated like Orwell’s memory hole, it plays a key role in the government’s ability to sustain its arbitrary claims about what makes a person a terrorist.

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  1. harpie says:

    Wow. I’m only half way through and it’s taking my breath away. The second piece by Linzer could have been titled: Obstruction of Justice.

  3. bmaz says:

    1) Didn’t one of us write something on this bogus case a while back??

    2) Hey, I wonder what the deal was with that “no longer operative” crap DOJ noticed up suspiciously on some classified filings – I think declarations – in al-Haramain???

  5. Mary says:

    It also makes me remember the Higazy case.

    Coerced confession from the guy – luckily he wasn’t shipped off to GITMO or else the rest of the story would never have emerged. The 2nd Cir Opinion that went up in his lawsuit, then came down, but by then had been circulated – court trying to call back copies. Bc the first opinion had unredacted the info that the FBI interrogator knew that Egypt torture people (and among other things, Higazy was threatened with what the Egyptians would do,if the Americans asked them to, to his family if he didn’t “tell the truth”).

    https://antipolygraph.org/cgi-bin/forums/YaBB.pl?num=1039761920

    Anyone interested might want to scroll down to the link to the report done by Comey to the courts on the Higazy interrogation (clue – DOJ is finewonderfulspiffy)

    Obamaco settled the case pretty quickly

    http://news.bbc.co.uk/2/hi/middle_east/8274909.stm

  6. hcgorman says:

    It was not all that long ago when the Government released for public filing an original habeas petition that I filed for one of my two gitmo clients. I sent it to alot of people and some filed in on their websites. Lo and behold-5 days later- the government realized it cleared it “by mistake” and it should be taken off the supreme courts docket and everywhere else. I of course casually mentioned that it was on various websites on the internet. The result was that the judge in the case issued what might be the….or at least one of the, most bizarre orders in the habeas litigation. The judge acknowledged that the petition was on the web and therefore public but he ordered ME not to talk about it as a “habeas lawyer” but that I could discuss it as a “private person.” I think it meant I could talk about it at a cocktail party but not on my blog. Anyway I had to take it off my blog. I don’t know if the order is still in effect as my client is now a free man but just in the off chance someone wants to scoop me up over that one I will just point you to Andy Worthington’s blog for more on that story.

    • Jeff Kaye says:

      Here’s the link to Andy’s story on al-Ghizzawi’s release, and everything he and you, Candace, went through on that, including a lengthy quote and reprint of your your story, “The Muzzle is Off” (otherwise gone from Google cache now). Andy also gives a lengthy quote from your subsequent story, “The Muzzle is Back On” (PDF).

      Just to be ornery, here’s a PDF link to Candace’s original habeas petition. Thanks to The Talking Dog.

      And thanks to you, Candace, and the other habeas attorneys, who have truly done exemplary work. I know that many of these attorneys can get quite frustrated, and the disconnection between what the attorneys know and experience (and what their clients experience) and what the U.S. population knows or seemingly cares can be intense. Please keep up the work.

      And again and again much thanks to EW and crowd for keeping the torch of justice and liberty blazing.

      ~~~ModNote: Attempted but failed repair of second link.~~~

      • Jeff Kaye says:

        Wow! “The Muzzle is Back On” was pulled, too, even from a number of other sites. I thought we would have to make do with what is on Andy’s site. Even a link to a discussion of why the blog posting was pulled by the government was pulled from ScotusBlog! (See this page by The Talking Dog, and try clicking through on the ScotusBlog link.)

        Meanwhile, there’s <a href="http://www.pruningshears.us/pruning-shears/2009/11/26/the-muzzle-is-back-on.html“>one seemingly complete version left on the web. (Maybe two, but I’m not saying where the other one is.) Worth a screen shot, I’d say. A piece of diabolical Americana… not the article, but the attempt to suppress it.

        Note: The last link above replaces the second link in my earlier comment.

        What a ridiculous country we have. What

  7. harpie says:

    Deceit Exposed

    ProPublica:

    Legal scholars and classification experts said the drafting of a second opinion was a deception. All previous opinions in Guantánamo habeas cases have noted when material has been blacked out or removed to protect security.

    Key Deletions in the Uthman Trial Court Opinions; Krista Kjellman Schmidt; ProPublica

    Comparison: Versions of the Uthman Trial Court Opinion; ProPublica

    Here are two deletions not on the chart which I found interesting:

    Deleteion: Examination of government claims that Uthman was financed by a named Yemeni cleric:

    Respondents also allege that Uthman received money for his trip to Afghanistan from Sheik Moqbil Al Wadi, an individual who encouraged jihad. See JE 30 (reporting that Uthman stated Al Wadi gave him one thousand dollars to fund his trip to Afghanistan); JE 21 at 4 (reporting that ISN — stated —- told him that “it was a good thing for Muslims to go fight jihad”). Uthman contests, by pointing to statements by other detainees regarding —- aversion to violence, that —- promoted terrorism. See, e.g., JE 19 at 1 (noting in an FD-302 of ISN — that ISN — found it “unbelievable that —- has ties to Al Qaeda or other extremist groups”).

    Deletion: Entire footnote examining disputes in the government allegations against the named Yemeni cleric; Footnote 26 renumbered to 16

    25 The exception is respondents’ allegation that Al Wadi promoted terrorism. There is conflicting evidence in the record as to this point. Because even if the allegation is true, the Court concludes that Uthman’s detention is not justified, the Court will assume that respondents have met their burden of proof as to this fact rather than attempting to resolve the question.

    The government really wants US to think that Uthman is connected to this Yemeni cleric, Sheik Moqbil Al Wadi.

    I wonder why.

  8. powwow says:

    Does Dafna bury her ledes, or is it just me?

    Before seeing emptywheel’s post above, I read the entire “Troubled Case” article linked by Glenn in his updates today and never realized that Dafna was referring to something more than the routine redactions made to these habeas decisions.

    Then I got halfway through the before/after Table at Propublica before the descriptions of the before and after language started to sound like something other than pre-redaction, post-redaction analysis (aided by the miniature visuals in the right column which didn’t seem to show the blocks of black that redactions create).

    Finally, I started reading Dafna’s “Two Versions of Reality” article (again before reading this post) and was astounded to realize, some paragraphs in, that in fact Judge Kennedy himself rewrote his opinion to ‘redact-by-omission’ his original product, months after he submitted his original opinion to the DOJ in February for redacting… Unreal.

    Here’s the lede that Dafna buried in the middle of the Two Versions article:

    When [Judge Henry] Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.

    Dafna then continues:

    In the Uthman case, that clearance process took three weeks. Kennedy’s decision was stamped “Redacted,” by the court’s security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was “secret,” stamped at the top and bottom of each page.

    Kennedy’s clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.

    In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.

    In preceding paragraphs Dafna had noted what followed this craziness:

    The alterations [by Kennedy] are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government’s case were deleted. Even the date and circumstances of Uthman’s arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured “in late 2001 in the general vicinity of Tora Bora,” the cave complex where bin Laden was thought to be hiding at that time.

    And on and on. Read that disturbing article, everyone.

    The upshot: What was Judge Kennedy thinking?!? The DOJ/DOD shoots itself in the foot, and then Kennedy tries to make up for it by altering the facts and content of his own independent judicial product…?! Inexplicable and very disturbing, given the suffocating (and obviously wholly unnecessary, for the most part) secrecy that already surrounds these cases.

    Great Propublica detective and research work (buried reporting ledes notwithstanding). In addition to the help it should give some of the detainees, it gives us some valuable and important insight into one too-cozy Executive Branch/D.C. District Judge interaction about classified information, involving a judge who seems less likely than others to be compromised by the administration, based on his habeas record.

  9. mzchief says:

    Dear EmptyWheel and team, I really have a lot of respect for your efforts.

    I was a witness in a civil case that finally went to court on the “rocket docket” in the Eastern District Court of Virginia in 2005. For years the plaintiff went through utter hell in rightful pursuit of the case. In order to make this a very short story, I will say that prior to the court date I was openly harassed in my home and while in public but I got on the witness stand anyway (one of the few by that time) because I thought it was the right thing to do. The case was heard by a judge, some magistrates and no jury. When I was allowed to be in the court room while not on the stand, the government’s “expert witnesses” weren’t and were really bad liars. The government lost the case. Shortly afterwards, I found out that the records of the case were closed.

    If the DOJ was willing to do those things on a open-shut civil case that could have been resolved quickly and equitably, why am I am not surprised at the things discovered about the criminal ones?

    Meanwhile, I guess one just can’t get to Kongōkai on roller skates.

    Heja, heja, EmptyWheel et al!

  10. klynn says:

    Another anatomy of deceit…

    Thank you for catching Linzer’s piece and illuminating the depth of concern.

    • harpie says:

      QUESTIONS PRESENTED

      1. Whether the district court erred when it held that the government’s detention authority extends only to individuals who were part of the command structure of al-Qaida.

      2. Whether the district court erred in concluding that petitioner was not part of alQaida where the district court found that “Uthman (1) studied at a school at which other men were recruited to fight for AI Qaeda; (2) received money for his trip to Afghanistan from an individual who supported jihad; (3) traveled to Afghanistan along a route also taken by AI Qaeda recruits; (4) was seen at two AI Qaeda guesthouses in Afghanistan; and (5) was with Al Qaeda members in the vicinity of Tora Bora after the battle that occurred there.” JA 262.

      3. Whether the district court erred by failing to give weight to the fact that petitioner put forward a wholly implausible cover story.

      4. Whether the district court erred when it failed to consider the evidence as a whole.

      5. Whether the district court should be ordered to consider certain additional evidence if the case is remanded.

      [PS: Who can “order” the court to do something?-harpie]

      • Mary says:

        The appellate court.

        @21 – thanks for the work you do. I think the hardest thing on all these cases is untangling the gazillion things that are of note to try to keep to a coherent story that will take a reader who doesn’t follow them full time somewhere, without losing them along the way.

  12. dafna says:

    Thanks to Marcy and her readers for the great discussion of the Gitmo articles. I have nothing to add to Marcy’s excellent dissection of the piece and I encourage you to play with the documents to understand the extent of the changes, omissions and alterations. I want to address a couple points raised in the comments and hope it helps those interested in learning more about this story.

    1. In response to Harpie’s keen eye for the appeal brief: DoJ was told that the deadline for my story was 5pm Thursday. At 4:53pm Thursday, they filed a very lightly redacted appeal brief. It is linked to my story and this sentence is in the main piece:

    As this story was going to publication, the Justice Department released an unclassified version of its appeal brief [9] in the Uthman case. A number of details that were excised from Kennedy’s final opinion appear in the appeals brief.

    2. In response to powwow: The tale of two opinions was indeed the main story, examining how the opinions came to be crafted, what was deleted or changed and what it means. The second story examined the evidence exposed in the original opinion – a first opportunity ever to examine the government’s classified filed against a detainee the Obama administration has designated for indefinite detention. It didn’t occur to me that reading the story in a different order would alter perceptions of the tale but in any case my intention had been to story-tell with the first piece and then flesh out the evidence through the witnesses in the second piece, if that helps.

    3. Thanks again to Harpie for raising a good journalistic question about how better to have told this very layered story since it was about a number of things: How the original opinion was published, then snatched back; how a second opinion came to be written, what was altered and omitted and why and what the evidence is against this detainee.

    4. Feel free to email me directly and I’m always happy to check here for more thoughts and comments. I really appreciate knowing there are readers interested in Guantanamo and detention issues,.

    Best, Dafna

    • powwow says:

      What a gracious comment, Dafna – particularly given my astonishment-generated venting at your expense @ 12.

      Days later, I’m still astonished that Judge Kennedy did what he did… I cannot imagine what prompted him to censor and warp his own work, and thus the truth as he saw it, to please the Executive Branch, which already wielded the power to redact any genuine “sources and methods” or other vital secrets mentioned in his opinion (about a detainee determined to have been unlawfully held, from day one, as an “enemy combatant”) that Americans and the rest of the world couldn’t be allowed to learn. Kennedy did that by making more work for himself, to boot – as though the molasses-in-January pace of these Guantanamo habeas corpus decisions isn’t already slowed enough by the normal, necessary workload of the D.C. District judges.

      I truly hope this issue will get a serious examination in the D.C. District as a result of your very important reporting scoop, Dafna. The extensive additional legwork you did to interview various parties about your discovery and its import before publishing is commendable. I think the amount of research and analysis you did was part of the reason I got lost in the details before I’d realized the true nature of the underlying discovery (I also apparently kept reading “deleted” as “redacted,” rather than as “revised”). You probably collected enough material in those two articles for a week-long newspaper series, even though Judge Kennedy himself isn’t talking. As Mary rightly notes @ 23, trying to coherently present that much material is an unenviable task – made all the more difficult when you’ve been immersed in the subject for some time, but need to write for an audience that knows nothing about it.

      The bottom line, though, is the character and importance of the discovery you made, the proof you preserved and documented, and the careful analysis you subsequently conducted. You’ve made an extremely valuable contribution to good government here, by exposing problems that federal judges are having with (incompetent) secrecy-sword-wielding members of the Department of Justice and government intelligence agencies, and I hope the responsible parties – which obviously should include the House and Senate judiciary committees – take heed. This lamentable development (which to date, by my count, has been followed by at least four subsequent redacted habeas decisions by Judge Kennedy in other cases) should not be allowed to set a dreadful new precedent for the judges of our independent federal judiciary.

  13. harpie says:

    I’m just looking at the Appeals Brief in relation to some of the information provided by Daphna and ProPublica yesterday. [You all probably have this all figured out already, but I’m a little slow.]

    Wrt: Uthman’s capture, this is what the DoJ is claiming in the 10/7/10 Appeals Brief [p.13] [emphasis added]:

    From Kabul [on 11/15/01], Uthman claimed that he traveled with Rahman to Rahman’s family village in Khowst province. JA1074 Uthman claimed he stayed with Rahman until December 7, 2001. see ibid. (stating that he left on the 22nd day of Ramadan). He then left Khowst and traveled towards Pakistan for his safety. Ibid. However, rather than take the road from Khowst into Pakistan, a journey of approximately 20 miles along a primary road, JA 1008, Uthman stated that he traveled with a guide for eight days on foot over difficult terrain in harsh weather. JA 1074. He eventually entered Pakistan on December 15 in the vicinity of Tora Bora. JA 628, 638-9, 1008. Uthman claimed that he met up with other foreigners who were also leaving Afghanistan along this difficult route, including jihadists whom he knew from the Furqan Institute (Majid Majmud, al-Mujahid, and ai-Rabbi), JA 628,630, 712, and other confessed Usama bin Laden bodyguards and Taliban fighters, JA 630; JA 519; JA 1029; JA 668. Uthman arrived in Pakistan on December 15, 2001. JA 1074 (reached Pakistan eight days after the 22nd day of Ramadan, 2001).

    But, according to Kennedy’s [original] Opinion Uthman had already been in custody of Pakistan before he is now meant to have even left Kabul [bolded text was deleted in the rewritten opinion]:

    [Opinion p1]: Uthman Abdul Rahim Mohammed Uthman (ISN 27), a Yemeni citizen, [was seized by Pakistani authorities in October 2001 and] has been held by the United States at the naval base detention facility in Guantanamo Bay, Cuba since January 2002. Uthman contends he is unlawfully detained and has accordingly filed a petition for a writ of Habeas corpus.

    Though I haven’t read it very thoroughly, I don’t think this alternate story is mentioned at all in the Appeals Brief.

    Wrt: routes traveled:

    [Appeals Brief-continuing directly] The government submitted evidence that non-Afghans who entered Pakistan from Tora Bora were not refugees. JA 856. According to evidence submitted [about 36 characters redacted] “few, if any noncombatants would have been in the vicinity during” the battle. Ibid There were other direct routes available to refugees seeking to escape Afghanistan. JA 855. The most likely path out of Afghanistan would have involved travel east from Jalalabad, through the Khyber Pass/Torkham Gate, and into Pakistan toward Peshawar. Ibid. There were also relatively easily traversable routes from Khost into Pakistan. Ibid. In contrast, “the Tora Bora cave complex was in very rugged inaccessible mountainous terrain.” JA855. A map of the region submitted into evidence shows two roads between Khowst and Pakistan: the trek from Khowst to Tora Bora and from there into Pakistan is a much longer journey and involves traversing areas with elevation above 9,000feet. JA1008. Uthman provided no explanation for why he chose to approach Pakistan through this circuitous and difficult route during heavy fighting rather than leave Afghanistan by a primary road taken by escaping refugees. […]

    But an alternative was discussed in the Original Opinion, and to a lesser degree in the Rewritten Opinion:

    From the Rewritten Opinion] [see** for Original]:

    [Opinion p14] Uthman rejoins first that respondents have presented no direct evidence that Uthman was at Tora Bora. Second, he argues that insofar as respondents have identified circumstantial evidence suggesting that he was present at the battle there, the inferences necessary to so conclude assume the truth of the allegation that Uthman was a bodyguard for Usama bin Laden. Third, despite reiterating that the burden is on respondents to prove their case rather than for Uthman to prove anything, he argues that the information from other detainees is consistent with Uthman’s assertion that he was in Khost, Afghanistan, rather than Tora Bora, before [being seized. 12]** On balance, the Court accepts respondents’ evidence, which is largely based on and consistent with Uthman’s own admissions, as true and will consider it in evaluating whether the evidence as a whole supports the continued detention of Uthman.

    This is the corresponding footnote from the Rewritten Opinion:

    According to Uthman, after September 11, he went to the village of the man who was his translator while he was a tutor, located outside the city of Khost, to escape the bombing of Kabul. JE 103 (Decl. of Uthman) @12.

    Text of original Opinion:

    [** ] departing for Pakistan. 18 For example, according to an FD-302, ISN — stated that he followed an Afghan guide to Khost—a city south of the mountains in which the Tora Bora cave complex is located and south of Parachinar, see JE 90—to begin the trip to Pakistan and met other travelers on the way to the border. JE 16 at 1. Another FD-302 reports that ISN — stated that he met a guide outside of Khost to go to Pakistan and met other travelers, including Uthman, there. JE 17 at 3.

    @23 Thanks for the answer, Mary.

    @21 Thank you, for the great work, Daphna.

    • harpie says:

      Department of Justice?

      “While our adversarial system may permit such advocacy by private parties, when the United States appears before us, it is duty-bound to ‘cut square corners’ and seek justice rather than victory. We are distressed that it failed to do so.”-Judge Marjorie O. Rendell

  14. harpie says:

    heh

    Obama DoJ Appeals Brief [P. vii]:

    Other Authorities

    Bradley & J. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005)

    V. Applications to the War on Terrorism [p2107]

    V.A. Who is the Enemy Under the AUMF? [p2107]

    V.B Location of the Battlefield and Length of Detention [p2117]

    V.C Military Commissions [p2127]

    Conclusion

    […]Our framework suggests that the President’s congressionally authorized powers in the war on terrorism are broad, but not unlimited. […] [and any power not covered by the AUMF is inherent in the Constitution. Power to the President!-harpie]

    From Goldsmith’s recent NYT Op-Ed,Don’t Try Terrorists, Lock Them Up; Jack Goldsmith; NYT; 10/8/10; about Judge Kaplan’s recent ruling on Ghailani:

    The government’s reliance on detention as a backstop to trials shows that it is the foundation for incapacitating high-level terrorists in this war. The administration would save money and time, avoid political headaches and better preserve intelligence sources and methods if it simply dropped its attempts to prosecute high-level terrorists and relied exclusively on military detention instead.

  15. harpie says:

    Back to my comment @10…

    Appeals Brief [p11] :

    The district court found that Sheik Al-Wadi had paid for Uthman’s travel. JA262

    Unless I’m mistaken, all mentions of Al-Wadi were in the deleted portions of the Original Opinion. [The Rewritten Opinion does not contain that name.]