DOJ Warns Gitmo Defense Attorneys Not to Use Gitmo Files
The defense attorneys representing detainees at Gitmo in habeas proceedings received this email today.
Subject: Information in the public domain 2nd reminder
All:
As many of you have undoubtedly heard or read, government documents that may contain classified information have been released via the news media. As a reminder, information that is marked as classified, or that a person with access to classified information knows to be classified, remains as such despite a potential public disclosure by unauthorized means. Classified National Security Information only becomes declassified when the appropriate original classification authority makes their determination that the information may no longer cause damage to national security and may be declassified. Accordingly, consistent with your Classified Information Nondisclosure Agreements and Memorandum of Understanding that you signed as a participant in the Guantanamo Habeas proceedings, counsel are hereby cautioned that this presumptively classified information must be handled in accordance with all relevant security precautions and safeguards, including but not limited to, use and preparation in the Secure Facility and filing under seal with the Court Security Officer.
Thank you.
Court Security
In other words, in spite of the fact that the entire world now sees the flimsy evidence on which many Gitmo detainees are being held, Gitmo detainees’ lawyers can’t use that now very public information to defend their clients without going through the court security officer first. In fact, they can’t even talk about this information, for example in public appearances to explain their client’s plight, without asking the government for permission first.
And the warning is even more appalling given the protection order proposed for military commissions. As I noted last month, military commission defense attorneys have a couple of additional restrictions on top of all the ones habeas lawyers have; notably, they are not allowed to share classified information with their clients even if it reflects information that came from their client.
Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.
So all these Detainee Assessment Briefs purportedly based on the detainees’ own statements? The Gitmo lawyers can’t ask their clients whether they’re an accurate representation of what the detainee actually said.
And then there’s the timing. The government has presumably known that these files might be released since last May, if not December, when Mark Hosenball said they were imminent.
So when the government wrote the protection order preventing military commission lawyers from sharing with their clients or even talking about classified but widely public information, they knew this trove of useful information would soon be available.
So now the organization that will prosecute detainees is the same organization that can determine that its use in a military commission would “cause damage to national security” and on that basis prevent defense attorneys from using a key tool to defend their clients.
You know–because if detainees got due process it might “cause damage to national security.”
Update: Second-to-last paragraph fixed to hopefully make a bit of sense.
I wonder what the status of Dist. Judge Kennedy’s opinion in the Uthman case is. It wasn’t marked classified, but it was pulled down and replaced. You can still find it on ProPublica’s site.
I’m talking about the original opinion, not the one that resulted after the conflict betweeen Kennedy and the DoD.
It’s probably stored in the same place that the AQ training manuals are stored.
It would be a breach of national security if the government were told what the government did. Also, when the government makes an admission, that admission cannot be used to impeach the government. I’m sure this makes sense in some universe.
Possibly the universe on the other side of the looking-glass. Or the one you get to by falling down a rabbit-hole.
I hope some judge has enough sense to look at that kind of legal instruction and tell the government to put it where the sun will never shine on it – and never, ever again try to tell defense attorneys that they can’t use their own clients’ statements.
It does make it a tad harder to impugn government allegations when defense counsel are prohibited from asking their clients whether what the government claims they said is what they said. “Heads I win, tails I win” is not a valid standard for a criminal justice system.
For Mzchief,
Found this one, the other one seems to have vanished. I remember now that I caught it early this morning on the twitter and it is from the Atlantic.
http://theatlantic.tumblr.com/post/4926929889/3rdofmay-the-art-christoph-buchel-and-gianni
When they say they are renewing the Gitmo lease, I find that faulty because we already had a 99 year lease with Cuba for the space.
by the way, I thought we followed each other on the twitter. What happened to that?
Love those new, improved Military Commissions rules put out by the Obama administration.
You really caught the senseless injustice of the security rules in this case. But of course, I never forget that these are real human beings who will suffer for this (as I know you don’t forget this either), along with their loved ones. The attorneys I know, too, agonize over this terrible restriction.
Oh but it’s only for those “terrorists”, you know.
If only America would wake up and see the jackboots aimed to walk right over their heads.
A question for for folks here knowledgable about government communications:
What is the government communications system that uses the prefix “TD-314“?
As one can see in the latest Wikileaks document dump, the Guantanamo Detainee files all reference footnotes such as this from page 2 of the Abd Al Rahim Hussein Mohammed Al Nashiri JTF-GTMO Detainee Assessment (15 page PDF):
The reason that I think that the prefix “TD-314” is a government communications system is that I’ve found the same prefix “TD-314” in other Wikileaks documents such as this State Department communication cable from the Buenos Aires Embassy.
I just tried googling TD-314…interesting…fwiw
#7:
Oh I’ve googled and googled “TD-314” without finding its definition. Again, lots of government communications that include it, but no definition.
I am so non technical. :-} Good luck!
Ok, I’ve found another source for that Department of the Army Intelligence Informations Services Powerpoint presentation because Scribd always freezes my system (piece of fookin’ junk!).
That other source is over at Cryptome.org and has the Powerpoint presentation in a zip file here.
Anyways, it appears from that page 7 of that Powerpoint presentation, that DAIIS provides “Searchable tearline and message database containing the following data types” and includes “CIA Releasable reports (TD-314)”.
Another prefix that is referenced in these Guantanamo Detainee files is “IIR”. That same page 7 of the Powerpoint presentation describes “IIR” as “Intelligence Information Reports”.
I feel better now that I know what these critters are. *g*
I am pretty sure that TD-314 is a CIA designation for reports they produce to share with other agencies, but I cannot find a reference at the moment.
That DAISS Powerpoint presentation confirms what you say.
What’s also interesting to me about the “CIA Releasable reports (TD-314)” is the “source” of these reports.
Much of the published documentation regarding the interrogation of the Guantanamo detainees implies that their interrogations were “primarily” conducted by DOD folks (i.e. the DIA’s Defense Counterintelligence and HUMINT Center folks).
I wonder now if that really was/is the case.
It would seem to me that the “CIA Releasable reports (TD-314)” implies that the CIA is the source of these documents.
Perhaps the CIA “sourced” them from the transcripts/videos of DIA’s detainee interrogations, but I find it more probable that the “CIA Releasable reports (TD-314)” referenced as footnotes in all these Guantanamo Detainee files are in fact material acquired from the CIA’s own detainee interrogations.
Or perhaps it is a combination of efforts under the rubric of a joint terrorism task force (not to be confused with the FBI’s JTTF) where the CIA has final responsibility for analysis and production of interrogation reports that are used as the sourcing TD-314 footnotes in these Guantanamo Detainee files.
Thanks for hunting this out, as I was wondering about this myself. Though seems there’s some question still about the ultimate provenance of the TD-314’s.
Yeah, I’m torn between the CIA as the underlying source or the CIA as the central intelligence agency compiling stuff from other agency sources.
Oh! Yay!
I read a related bizarre Wikileaks document in reading through Al Nashiri’s JTF-GTMO Detainee Assessment (15 page PDF).
In Al Nashiri’s case, another former detainee by the name of Jamal Ahmad Mohammad Al Badawi evidently testified (is an interrogation “testimony”?) to Al Nashiri’s involvement in the USS Cole bombing.
The bizarre Wikileaks document is an October 2007 State Department cable from our Embassy in Yemen describing a meeting between Frannie Townsend and the President of Yemen.
One of the topics of discussion was “Townsend’s request for USG interrogation of Jamal al-Badawi” who it seems was sort of, maybe, somewhat under Yemeni “house arrest”.
This was after Jamal al-Badawi, who as a Yemeni prisoner, had twice escaped from Yemeni custody.
As the cable relates, Yemeni’s President Salah said:
The really bizarre part of this cable is this part:
This is the very same President Salah of Yemen who has been the “friend” of the US for years, but now the US has decided Salah must go.
o/t to ew re your continuing issue with DoD lax IT security — did you see this?
It’s Harry Shearer’s leadoff story in this week’s Le Show — he is merciless when the Army Corps of Engineers is involved.
Oh hey! Topic of your new Antiwar Radio interview! Just saw:
(Podcasts are my friend :-)
No, I hadn’t. Thanks.
EW, your latest tweet of “A deep dive into role of informants at #Guantanamo: Secret reports show that 8 captives gave evidence against 255 others http://ht.ly/4GP5K” gives me a 404 error at that link.
But to the rescue, that Carol Rosenberg piece can be found here.
Carol Rosenberg’s piece makes a strong case that Mohammed Basardah (13 page PDF), a stoolie for “at least 131 detainees”, has failed the sniff test in a number of detainee judical cases.
In addition, in regard to EW’s earlier post regarding the US government’s primary objective of “exploitation”, I would note this from page 12 of Mohammed Basardah’s own report:
The original EW post w/ the gov’t gobblydegook is an Alice in Wonderland explanation.
Wow! Once the info is in the public domain, to not let defense attys use it can only be comprehensible to Lewis Carroll and John Yoo.
this doj ukase will only hold if it is not challenged by prisoners’ attorneys, en mass; i think that should become their first priority.
the doj has been bluffing defense lawyers and federal judges very successfully for ten whole years; why should they stop now when they never meet effective opposition?
i don’t see how any competent judge could tolerate a situation in which the prosecutor(s) told the defense attorney(s) that she could not use certain documents.
for a judge to allow such a situation to prevail would be to allow one side in a legal “quarrel” to tie the hands of the other side.
clearly, doj is counting on timid defense attorneys and timid judges to get away with this tactic.
but there’s a deeper issue here: how is it that the lawyer-prosecutors of the doj have so little regard for fairness in federal legal proceedings?
the doj represent the gov’t of the u.s.
it is not your run-of-the-mill sue, lye, and steel, p. c., legal corporation.
what are eric holder and his senior staff thinking about when they allow doj prosecutors to behave this way?
it seems to me that keeping his promise to cover up for bush and cheney, et al.,
is limiting the options and destroying the reputation of the obama presidency.
The pathetically-inadequate and ill-informed Guantanamo Files coverage of The New York Times and NPR – whose editors and publishers, like the population of Muslims jailed at Guantanamo who they help scorn and demonize, apparently don’t consider Easter Sunday a significant religious holy day worthy of respect – as well as the sloppy, tabloid coverage of the WikiLeaks-partnering Telegraph, lead me to believe that a few law of armed conflict and Guantanamo basics are needed to augment the inadequate “mainstream” coverage of a story that most American media outlets have been studiously ignoring for more than nine years.
Basics like the fact that every single Guantanamo detainee is claimed by the United States government to be an “enemy combatant” caught participating in an armed conflict against the United States. That armed conflict “enemy combatant” status is, and has been since 2001, the sole justification, under the law of war, for the detention, beyond the reach of our federal courts, of all Guantanamo detainees. This is both an internal Executive Branch justification, and, since our Judicial Branch of government finally got around to requiring it of him, the President’s justification in federal court for his private prison of uncharged Guantanamo detainees (although the only lower federal appellate court with jurisdiction has, since 2008, worked tirelessly to reverse Boumediene‘s belated enforcement of the separation of powers and due process).
Or like the fact that only six of the 779 Guantanamo “enemy combatant” detainees have ever been tried or convicted by military commission. That is, a grand total of six Guantanamo detainee “enemy combatants” have been charged, prosecuted, defended, judged, juried/plea-bargained, and jailed – all by the military, answering to the Executive Branch alone, and without benefit of regular Uniform Code of Military Justice (UCMJ) court-martial process – for committing “war crimes.” [For committing so-called universally-recognized “war crimes” that were concocted by Congress and the President in the Military Commissions Act of 2006, long after the capture of the charged detainees.] And four of those six Commission convictions came by plea bargain (requiring that detainees not appeal their “war crime” convictions to our independent federal judiciary). Furthermore, only one further Commission prosecution is pending, and that is for a detainee (Al Nashiri) whose acts preceded by more than a year the 2001 Congressional AUMF that authorized the United States Armed Forces to engage in an armed conflict abroad against the perpetrators of 9/11/2001 (and thus to capture and hold enemy combatant POWs as part of that conflict).
Or like the fact that, although every single Guantanamo detainee was and is claimed by our government to be an “enemy combatant” in the 9/11 AUMF-authorized armed conflict, and thus detainable by the President without charge or prosecution for the duration of the conflict (though, years after their capture, more than 500 “enemy combatants” have been released without explanation even as the conflict continues), not one of those enemy combatants has ever been assigned Prisoner of War status – despite the treaty law of the land (the Geneva Conventions, aka the law of armed conflict or the law of war) and existing Army regulation mandating default POW status for all armed conflict detainees, unless and until proven otherwise by a “competent tribunal.” [A “competent tribunal” whose minimal due process protections military judges in 2007, and a federal district judge in 2004 in Hamdan, ruled did not exist in the military’s newly-created 2004 Combatant Status Review Tribunals (CRSTs), which thus failed to comply with mandated Third Geneva Convention Article 5 process (which the existing, but ignored, Army Regulation 190-8 would lawfully provide, if obeyed).]
That February, 2002 “presidential determination,” which unlawfully purported to unilaterally rescind the treaty law of armed conflict’s Article 5 process for these “enemy combatants,” remains on the books today, apparently unrevoked and still operating to deny Taliban foot soldiers the basic due process that 400,000 Nazi and Axis POWs, housed in 500 camps in 45 states, were given by the United States in the midst of World War II. As I noted in this detailed comment about that February, 2002 “presidential determination,” the point of Article 5 screenings is to establish in the first place who is and is not a combatant in the armed conflict in question, and thus to accurately identify those who qualify as “Taliban detainees” or “al Qaeda detainees” – a more difficult task in this armed conflict than in others because our opposing “combatants” don’t wear uniforms [which has long been speciously claimed to be a “war crime,” which it is not, and has obviously been exploited by the military to assert that every street clothes-clad captive is an unprivileged, non-POW fighter, just because some such captives turned out to be such fighters]. So how, exactly, was President Bush, in advance, and from a distance, or the military on the scene, able to identify “Taliban” or “al Qaeda” captives (more than two-thirds of whom were not captured by U.S. forces, according to the new McClatchy article linked in this thread), absent that prescribed Article 5 screening process? And if the American military chain of command was so indifferent to the consequences of mistaken identity, while they immediately labeled every single individual detained a member of one or both, or of “associated,” groups, why, exactly, was that the case?
The WikiLeaks “Guantanamo Files” are helping to answer that last question, by at last showing the government’s work product to the world. Flawed work product that the former chief prosecutor of the Guantanamo military commissions, Retired Air Force Colonel Morris Davis – a military lawyer for 25 years, and chief prosecutor from September, 2005 until he resigned in protest in October, 2007 – described from personal experience, when speaking this year on the ninth anniversary of Guantanamo’s opening. Here’s Morris Davis explaining how detainee “intelligence” reports were concocted by the multiple intelligence agencies given free rein at Guantanamo – “intelligence” reports whose untested, unredacted allegations and assertions have mostly escaped, for almost a decade now, public or private adversarial scrutiny in a court of law, or in any form of Article 5 “competent tribunal”:
1:10:55 into the 1/11/11 New America Foundation panel discussion, the moderator asked:
To which, at 1:11:07 of the recording, former Guantanamo Military Commission prosecutor Morris Davis replied:
Just one thing is unclear here, how does respecting Easter have relevance?
That’s a reference to the fact that WikiLeaks and the media outlets and blogger it had released the Guantanamo documents to, under embargo, had not planned to report this story on Easter Sunday, but rather at some other time in the near future. (At some time other than a holiday – it seems obvious that anyone interested in maximum exposure for the story would have worked around such days, rather than choosing to break the news, after months of preparation, on a significant religious holiday.) But someone leaked the Guantanamo documents to the New York Times, which shared them with NPR and The Guardian (and cleared with the government their plans to publish), and collectively they decided to try to scoop the authorized WikiLeaks partners by breaking the story on Easter Sunday.
The Telegraph thwarted the planned scoop, because WikiLeaks suddenly lifted their embargo late Sunday, on two hours notice, when they learned of the plans of the NYT/NPR, and that allowed the Telegraph to get their (lousy) story out first, early Monday U.K.-time. But the demonstrated disrespect of the NYT/NPR/Guardian for the embargo of the WikiLeaks partners, and for the Easter weekend plans of those who’d been carefully researching this large amount of data at the authorized outlets, caused people like Carol Rosenberg and Tom Lasseter to have to scramble to summarize their uncompleted work earlier (and no doubt, less comprehensively) than planned:
This was ugly, unnecessary gamesmanship, on a sober subject that the New York Times and NPR for the most part haven’t lifted a finger to illuminate for the American people in nine years. On a subject that’s all the more in need of dogged, skeptical reporting because of the outrageous government restrictions on what the pro bono attorneys for the incommunicado detainees can say – long-time, presidentially-controlled restrictions that permit only one (government) side of the story to be told, as a rule, in and out of habeas court.
It speaks volumes that it wasn’t until the New York Times and NPR had a chance to undercut some important, deliberate reporting about this document leak and its significance, and to disrupt the plans of WikiLeaks, that they were suddenly motivated to rush to break their versions of this WikiLeaks-sourced Guantanamo news on Easter Sunday.
In not necessarily unrelated news, seems someone wants to make the U.S. passport a luxury good.
Torture/ Murder/ Treason how else could it end ?
The rule of law is in limbo.
powwow@28
excellent, informative comment.
tx
Defense attorney’s are ordered not to discuss their clients own alleged statements with them.
Hick’s book can not be obtained, here.
MSM blankets the airwaves with propaganda coordinated with the government so that people in other countries are better informed about what the USG is doing than its own citizens are.
What kind of country do we live in where we are supposed to pretend that certain information does not exist?!?
Is this a hologram?
/rant
In Nazi Germany in the 1930’s, you could buy foreign newspapers at places like railroad stations. It was legal to listen to foreign radio broadcasts until war broke out in 1939.
But, aside from that, all the media to which the German people had access spouted the government line.
Thanks, all, for a very informative thread.
ProPublica continues to connect their previous Guantanamo reporting with the new WL GTMO documents, in this case, about the DC Courts, habeas and indefinite detention.
Gitmo and the Federal Judiciary: Our Coverage of the Habeas Lawsuits; Susan White; ProPublica; 4/25/11
harpie@34
thanks for the pro publica cite.
they are so good. i’ve got to put them on my short read-list.
OT – Just up over at Politico, Josh Gerstein reports:
Could that be a quid pro quo to the New York Times in return for their playing ball with the government over the WikiLeaks disclosures?
Finally, an explanation for the bizarre order to ignore Wikileaks documents. It’s an offense to justice; but, for a government in denial about the importance of such things, that would appear quite sensible.
Hey! Credit where it’s due! Lewis, Yoo and Kafka, too.
Hmmm. Since when does the DOJ get to decide what evidence is admissible? Isn’t that the judge’s call? What am I missing here?
Bob in AZ