The “Purported” Detainee Assessments
When I posted on the new guidelines the government has given Gitmo lawyers on how they can use the Gitmo Detainee Assessment Briefs released by WikiLeaks, I had not yet seen the guidelines. Here they are.
What’s most interesting to me about the guidelines is the way the government appears to be trying to undercut how questionable these assessments are. As a threshold matter, the guidelines repeat a rule from the Gitmo Protection Order itself, prohibiting lawyers from telling the public that information in these files contradicts the evidence turned over in discovery.
Counsel may not make any public or private statements revealing personal knowledge from non-public sources regarding the classified or protected status of the information or disclosing that counsel had personal access to classified or protected information confirming, contradicting, or otherwise relating to the information already in the public domain.
Hypothetically, in other words, in the case of Saifullah Paracha, where Khalid Sheikh Mohammed claimed during the month he was waterboarded 183 times that Paracha had been plotting to ship explosives in a shipping container full of children’s clothing, if KSM had subsequently retracted that claim, his lawyer would be unable to tell us that.
More interesting to me, though, is the groundwork the government establishes to pretend the WikiLeak DABs might not be real. Part of this is presumably just a way to suggest that everything in the DABs may be classified.
Although the U.S. Government has confirmed that purported detainee assessments were leaked to WikiLeaks, it has neither confirmed nor denied that individual reports are official government documents. All purported detainee assessments posted on the WikiLeaks website, or on other sites, therefore should be treated as potentially classified information.
But the government uses the word “purported” seven times total in a document just barely longer than two pages.
Perhaps they’re hoping that as it becomes clear the documents are contradicted by public domain works (as Paracha’s is regarding its claims about when the US first took custody of Aafia Siddiqui, for example), they can just claim these are real documents, so never mind.
What’s clear, though, is the government has been lying internally. It’s not classified or unclassified information at risk here–it’s out and out lies in official documents.
But is it really a lie if the court doesn’t care? Is it really perjury if no prosecutor will prosecute?
Boxturtle (And if nobody can use them, do the DA’s really exist?)
Do you mean Detainee Assessments or District Attorneys?
In other words, when the US makes stuff up about whomever it wants to detain indefinitely, it’s rude to point out that what we say isn’t what we say it is. Compared to the US’ claims, Lewis Carroll is easier to understand.
This part of the new guidelines made be chuckle:
How nonsensical is that? Talk about wanting one’s cake and eating it too!
Either the Wikileaks DABs are government property that the government can administer how they are used, or the Wikileaks DABs are not government property and the government has no authority to administer how they might be used.
Word to the wise US government legal beagles: You can choose one or the other, but not both!
I may be legally naive here (hey, IANAL *g*), but why couldn’t the defense attorneys make the case that the US government has no standing to be a party to any proceedings regarding the Wikileaks DABs?
As I see it, if the US government won’t admit the authenticity of the Wikileaks DABs, and that the US government is the owner of said documents, then they have no standing to be a party to any proceedings regarding the Wikileaks DABs.
Why is this standing issue any different for the US government than it is for any other party to a proceeding?
Yeah, I know, because our courts won’t apply the same rules to the US government.
MadDog:
“As I see it, if the US government won’t admit the authenticity of the Wikileaks DABs, and that the US government is the owner of said documents, then they have no standing to be a party to any proceedings regarding the Wikileaks DABs.”
Excellent point, especially since some of the charges against both Manning and the unknown Cambridge wikileaks people are specifically 18 USC 641, ‘Embezzlement and Theft of government property’. How can they prove that someone stole a “record” or “thing of value” from the government if the government won’t even admit that it ever created the “record” or “thing of value” in the first place.
My other question: how can these cables be government property when the only property law that would apply here is copyright law, and most US government publications are automatically uncopyrightable and in the public domain upon publication?
What I want to know is how any lawyer with a tiny smidgeon of conscience acting as counsel for a detaineee can work these guidelines.
As MadDog implies, the Orwellian reasoning is that they won’t say if anything is genuine but expect counsel to assume they can suddenly change their minds and jail counsel for breach of security obligations on the grounds that it is and they knew it all the time. And if counsel becomes totally clear the bastards have been lying, can’t get the system to agree, throws his hands in the air and says “I can’t do this!” he has breached the last guideline.
How did law schools in the Land of the Free come to produce people who can write this crap.