US Delays Handover of Afghan Prison So We Can Not Try Detainees Rather than Afghans

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The WaPo reports the thoroughly unsurprising news that the US is not turning over Parwan prison this year as we begin to withdraw from Afghanistan.

The news is unsurprising because of all the money we’ve dumped into the prison in recent years–as soon as we put that contract out to bid, it was clear we weren’t turning the prison over. (Indeed, it’s fairly clear we’ll expand our detention in Afghanistan.)

But the excuse the WaPo uncritically gives is nothing short of hysterical.

First, the US says the Afghan judiciary system is not yet mature enough to manage the prison.

U.S. officials decided that the Afghan legal system is still too weak to permit the handover of the Parwan Detention Center, even after the United States spent millions attempting to improve the country’s judiciary.

 

That, in spite of the fact that Afghans have managed to hold trials at the prison; whereas the Americans still maintain the legal claim they are unable to (the WaPo somehow forgets this detail).

Then there’s the claim that Afghan judges can’t handle classified information.

The inability of Afghan judges to handle classified intelligence is one of many problems dela

But the example of Pacha Wazir provides a sense of who can and cannot handle classified information.

Afghan prosecutors determinedon June 26, 2008 that coalition forces had no evidence of collaboration with al Qaeda, so Wazir should be freed.

In the documents from coalition forces, it has been mentioned that evidence, physical supporting material and pictures do not exist to prove the accusations, he has not been arrested in a face to face battle, has not performed any terrorism related actions, polygraph tests show that there are no evidence of deception.

Based on the requirements of his job and business he has performed currency exchange activities in all parts and corners of the world legally to earn his livelihood.

Therefore, the commission believe that there are no documents in his file that would support the allegations against this person and he has already spent more than five years in prison. Thus, it is considered appropriate if the suspect is released from prison, introduced to National Independent Commission on Peace and Reconciliation and a report be delivered to the President of Islamic Republic of Afghanistan.

Nevertheless, several weeks after the Afghan determination that coalition forces had no evidence against Wazir, a DOD UECRB determined that he was an unlawful enemy combatant.

Petitioner Wazir is a detainee at BTIF. See id. ¶ 19. Read more →

DOJ: Calling Out Government Lies Would Endanger National Security

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The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Read more →

The “Purported” Detainee Assessments

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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.

The Quiet Death of Habeas Corpus

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Pow Wow left a comment, in response to me and Candace Gorman, on Marcy’s Gitmo Lawyers Information Gulag post that warrants highlighting and further comment. For convenience, here it is in full:

This is what bmaz and hcgorman @ 12 are referencing:

Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

Their lawyer, Richard Murphy, explained in an email,

Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court Read more →

The Gitmo Lawyers’ Information Gulag

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Charlie Savage reports on the new “relaxed” standards that will allow Gitmo defense lawyers to glance at the Gitmo Detainee Assessment Briefs released by WikiLeaks. (h/t fatster)

In guidance to the lawyers — who have security clearances, and so are required to follow government rules for the handling of classified information — the department’s court security officer said Friday that they were now permitted to view the leaked documents on the Internet.

But they are still not allowed to download, save or print the documents because they might contain restricted information.

“While you may access such material from your non-U.S.-government-issued personal and work computers, you are not permitted to download, save, print, disseminate, or otherwise reproduce, maintain, or transport potentially classified information,” the directive said.

I’m not sure how this is all that much better for Gitmo lawyers.

As I explained back in April, the request to allow access to the Gitmo files came from Saifullah Paracha’s lawyer, David Remes. His client’s file contains a number of glaringly problematic details that have now been in the public domain for two months.

Remes goes on to describe how this prevents him from defending his client publicly, specifically because he can’t comment for a big article the NYT did which (IMO) offered a credulous reading of Paracha’s file. While that article contains a quote from ACLU National Security Project Director Hina Shamsi noting that the information in the files is uncorroborated, and while NYT admits much of the evidence derives from KSM whom they note was waterboarded, rather than point out obvious suspect details in Paracha’s file, it simply repeats those details uncritically.

Here’s just one reason why Remes needs to have access to the file to adequately represent his client and refute credulous readings of Paracha’s file:

(S//NF) The plan called for shipping explosives in containers that detainee used to ship women’s and children’s clothing to the US. Detainee agreed to this plan. KU-10024 [Khalid Sheikh Mohammed] claimed in early March 2003, PK-10020 and PK-10018 [Ammar al-Baluchi, KSM’s nephew] were arranging the details with detainee and his son Uzair. KU-10024 stated detainee knew all the details of the plan. Uzair understood PK-10018 and PK-10020 were al-Qaida, but KU-10024 was unsure how much Uzair [Paracha’s son] knew about the actual smuggling plan.8 [my emphasis]

There are, in general, just two kinds of evidence offered by KSM in March 2003: evidence the CIA itself claims was disinformation offered by KSM in his early days of captivity while he was still successfully resisting interrogation, and evidence offered up under torture, potentially one of the 183 waterboarding sessions KSM survived in March 2003.

It’s unclear which category this piece of intelligence falls into, but the use of the verb “claimed” suggests there’s something about the intelligence that may have led even the briefer on Paracha’s file to doubt it.

The intelligence report cited for this detail (and therefore collected in March 2003), TD-314/16519-03, is cited three more times in Paracha’s file, only one of which is corroborated by reports dated 2004 and 2005.

In other words, one of the claims against Paracha can be traced back to a March 2003 interrogation of KSM that no one should consider credible. The entire case against Paracha builds off this early interrogation.

There are a number of other reasons to doubt the “facts” laid out in Paracha’s file. Notably, references to Aafia Siddiqui make no mention of her earlier reported detention by the US in Afghanistan, and instead claims “Siddiqui was detained in Afghanistan in mid-July 2008,” thereby hiding a key detail as to the credibility of any intelligence Siddiqui may have offered (or, just as likely, making no mention of intelligence Siddiqui refuted during years of interrogation in US custody in Afghanistan).

The government just generously granted Remes the opportunity to look at all these glaring problems firsthand.

But if he can’t “disseminate” this information–if he can’t go to reporters and say, “all that damning information against my client comes not just from a detainee who was waterboarded, but it comes from the period when he was being waterboarded,” what good does it do?

Next They’ll Put Gitmo Transfer Prohibitions on USDA Funding

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A number of people have commented on the Obama Administration’s statement of opposition to a ban on Department of Homeland Security funding for Gitmo detainee transfers. Here’s Benjamin Wittes:

The administration just issued a Statement of Administration Policy on a DHS appropriations bill (H.R. 2017), which contains a spending restriction similar to one of the Guantanamo transfer restrictions that provoked the administration’s recent veto threat with respect to the McKeon legislation. Yet oddly, this time, there is no veto threat.

[snip]

I can think of two possible explanations beyond mere clerical error: First, and I certainly hope this is not the explanation, perhaps the administration is backing off the veto threat. Second, perhaps the transfer restrictions with respect to domestic civilian trials are only veto-worth in combination with the other (from the administration’s point of view) objectionable features of the McKeon bill but are on their own merely worthy of opposition.

In any event, it’s a little puzzling.

And here’s Josh Gerstein:

The view that Obama suddenlty toughening his line against Congressional efforts to constrain his authority to prosecute and move detainees gathered steam just last week when the administration threatened a veto of the Department of Defense Authorization bill over detainee-related provisions including one that appears to prevent any war-on-terror detainee placed in U.S. military custody from ever being transferred to the U.S.

However, the details of what precise measures or combination of measures would trigger a veto from Obama was unclear in the statement on the latest DoD bill, perhaps deliberately so. The official administration statement on the Homeland Security bill appears to indicate that a simple re-upping of the restrictions Obama signed with some complaints in December won’t be enough by itself to get a bill vetoed.

Now, I frankly agree with Josh that the Defense Authorization was designed, in part, for maximum ambiguity about what might draw a veto.

But I think there’s an even easier two-part explanation for not issuing a veto threat here.

This is the Department of Homeland Security appropriation. DHS doesn’t exactly have primary jurisdiction over detainee affairs. And all this does is reaffirm the status quo (albeit without time limits).

Now, as Daphne Eviatar has pointed out to me via email, the language purports to apply to the DHS appropriation as well as any other act.

SEC. 537

None of the funds appropriated or otherwise made available in this or any other Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions, including detaining, accepting custody of, or extending immigration benefits to, Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense. [my emphasis]

So I suppose Congress could argue that this language governs all appropriations bills, including DOD and DOJ appropriations that would actually come into play in detainee affairs. And if so, it would eliminate one of the loopholes the ACLU pointed out in the language in the Defense Authorization for this year, which Obama already signed, which only prohibited the use of DOD funds, but not DOJ funds.

SEC. 1032. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act for fiscal year 2011 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

Yet Obama’s opposition to this amendment seems like a repeat of the status quo that already exists, with the White House complaining but not vetoing the restriction.

Read more →

US Charges KSM, 9/11 Plotters, Again

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DOD has announced that prosecutors have recommended charges against KSM and the other alleged 9/11 plotters.

The Department of Defense announced today the office of military commissions prosecutors have sworn charges against five individuals detained at Guantanamo Bay:  Khalid Sheikh Mohammed, Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.

The prosecutors have recommended that the charges against all five of the accused be referred as capital.  Capital charges may only be pursued with the convening authority’s approval.  Under rules governing military commissions, the accused will have the right to counsel learned in applicable law relating to capital cases.

The charges allege that the five accused were responsible for the planning and execution of the attacks on New York, Washington D.C. and Shanksville, Pa. that occurred on September 11, 2001.  Those attacks resulted in the deaths of nearly 3,000 people.

The charges are allegations that the accused committed offenses that are chargeable under the Military Commissions Act of 2009, 10 U.S.C. §§ 948a, et seq. There are eight charges common to all five of the accused: conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.  The accused are presumed innocent and may be convicted only if their guilt is proven beyond a reasonable doubt.

These charges go beyond what is necessary to establish that the 9/11 co-conspirators may be lawfully detained under the 2001 Authorization for Use of Military Force, as informed by the laws of war — an issue that each Guantanamo detainee may challenge in a habeas petition in federal court.

In accordance with the Military Commissions Act of 2009, the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald.  The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission.  If the convening authority decides to refer the case to trial, he will designate commission panel members (jurors).  The chief trial judge of the Military Commissions Trial Judiciary would then assign a military judge to the case.

How many times have we faced this stage already? How many times over could we have prosecuted KSM already if we had just used existing, rather than Kangaroo, courts? How many more years will it take to determine whether KSM can plead guilty so as to martyr himself?

Please Help Support My Next 525 Posts on Torture

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Just over two years ago, right around the time I reported that Khalid Sheikh Mohammed was waterboarded 183 times in a month, many of you chipped into the “Marcy Wheeler fund” to support my work; that generosity paid my way until a short time ago. Here’s what that support made possible.

Between May 1, 2009 and yesterday, by my rough count, I wrote 525 posts on torture. I unpacked the torture memos, the CIA IG Report, the OPR Report, and thousands of documents released through FOIA. I showed the bureaucratic games they used to set up our torture program, early efforts to place limits on things like mock execution, followed by more bureaucratic and legal means to get away with violating even those limits. I showed how they hid documents and altered tapes to hide evidence of their torture. I showed how, after CIA and parts of DOJ tried to put limits on torture in 2004, they again used bureaucratic tricks and ridiculous legal documents to reauthorize it. I’ve tracked DOJ’s kabuki claims to investigate torture (though bmaz gets credit for forcing DOJ to admit John Durham’s torture tape investigation had run out the clock on Statutes of Limitation). And I’ve tracked the Obama Administration’s successful efforts to suppress all evidence of torture. And all the while, I’ve relentlessly pushed back against the torture apologists’ lies.

Of course, while writing about torture is a major part mapping out the decline of the rule of law, it’s not the only part. Since May 2009, I’ve written almost 200 posts on wiretapping, almost as many on our Gitmo show trials, posts about state secrets, drones, fusion centers, the forever war metastisizing around the world. I’ve written about Wikileaks and Bradley Manning’s treatment and the banksters and the auto companies.

Cataloging the decline of the rule of law has been exhausting and infuriating. The work has been challenging.

But most of all, it has been humbling. That’s because you made this happen, as much as I did.

In addition to the absolutely brilliant observations you’ve made in comments, your support, two years ago, made this work possible. I’m profoundly grateful that many of you invested your faith and financial support in my work.

And now I’m asking for your faith and financial support again, to support the next 525 posts on torture. This time that support will come in the form of an ongoing Firedoglake membership. By becoming a member of Firedoglake, you will not only give my work some stability over the long term, but support the superb work of Jane and DDay and Jon Walker, and just as importantly, the work of the people backstage who make this all technically possible. And you will become a closer part of our efforts to push our country in the right direction, to return to the rule of law.

Please join Firedoglake today.

I hope some day soon we’ll begin to make headway against our expanding national security state. I hope some day, I won’t feel the need to write a post on torture five days a week. But until then, I feel compelled to write about what is happening to our country. And I can only continue to do that with your help.

Abu Faraj al-Libi and the Trail to Osama bin Laden

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According to reports, we first started tracking the couriers who would ultimately lead us to Osama bin Laden over four years ago.

The stream of information that led to Sunday’s raid began over four years ago, when U.S. intelligence personnel were alerted about two couriers who were working with al Qaeda and had deep connections to top al Qaeda officials. Prisoners in U.S. custody flagged these two couriers as individuals who might have been helping bin Laden, one official said

“One courier in particular had our constant attention,” the official said. He declined to give that courier’s name but said he was a protégé of Khalid Sheikh Mohammed and a “trusted assistant” of Abu Faraj al-Libbi, a former senior al Qaeda officer who was captured in 2005.

“Detainees also identified this man as one of the few couriers trusted by bin Laden,” the official said. The U.S. intelligence community uncovered the identity of this courier four years ago, and two years ago, the U.S. discovered the area of Pakistan this courier and his brother were working in.

In August 2010, the intelligence agencies found the exact compound where this courier was living, in Abbottabad, Pakistan. The neighborhood is affluent and many retired Pakistani military officials live there.

The reference to Abu Faraj al-Libi is notable in this context for two reasons. He was one of the last High Value Detainees picked up. The Red Cross dates his capture to May 2, 2005 (though he appears to have been held in joint Pakistani-US custody for a time and his Detainee Assessment Brief says he was transferred to US custody on June 6, 2005), and of the HVDs moved to Gitmo in September 2006, he was the last to be picked up.

More interesting, though, are some details from his DAB. In 2003, OBL assigned al-Libi to be “the official messenger” between himself and others in Pakistan. And, apparently at that point, al-Libi moved with his family to Abbottabad, the city where OBL was found.

In July 2003, detainee received a letter from UBL’s designated courier, Maulawi Abd al-Khaliq Jan, requesting detainee take on the responsibility of collecting donations, organizing travel, and distributing funds to families in Pakistan. UBL stated detainee would be the official messenger between UBL and others in Pakistan.12 In mid-2003, detainee moved his family to Abbottabad, PK and worked between Abbottabad and Peshawar.13

His DAB describes al-Libi providing intelligence on al Qaeda’s courier system.

Detainee reported on al-Qaida’s methods for choosing and employing couriers, as well preferred communication means.

And in May 2005 (when the Red Cross says he was captured), al-Libi said he was responsible for facilitating al Qaeda in “settled areas of Pakistan.”

In TD-314/37025-05, detainee stated of early May 2005, he was responsible for facilitation within the settled areas of Pakistan, communication with UBL and external links.

That all sounds suspiciously like the kind of portfolio that might include arranging for a custom-built mansion in Abbottabad for OBL’s family.

None of this means, of course, that al-Libi is the HVD who first IDed the courier who ultimately led to OBL. But it does seem like he was a likely source of that information.

Saifullah Paracha’s Gitmo File Contains Suspect Details, but His Defense Attorney Can’t Point Them Out

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I’m going to be in transit for another half day yet, but I wanted to comment on this motion David Remes, Gitmo detainee Saifullah Paracha’s attorney, filed to request emergency access to the Detainee Assessment Brief on his client released by WikiLeaks on Monday. (h/t Benjamin Wittes)  Remes describes the implications of the protection order he works under, noting specifically the warning DOJ sent out the other day.

For example, because the government considers the documents classified, and counsel holds a “secret” security clearance, he is concerned that if he views the documents online, the government might revoke his clearance. Losing his clearance will disable him from continuing to represent his current or future detainee clients and jeopardize his ability to obtain further clearances. Counsel is concerned that the government may even prosecute him. To avoid any potential sanctions, undersigned counsel errs on the side of extreme caution and refrains from viewing the documents.

The only place undersigned counsel can view these documents and fear no potential sanctions is at a Secure Facility the Justice Department has provided in the Washington area for counsel with “secret” level clearances. To the best of counsel’s knowledge, the Secure Facility contains no secure computer onto which the Wikileaks documents can be downloaded. Moreover, counsel is confident that the Justice Department will not ferry the documents to the Secure Facility for viewing and use by counsel. Even if the leaked documents were made available for viewing and use by counsel at the Secure Facility, counsel located far from the Facility – some thousands of miles away – would have to journey to the Facility to view and use them. [my emphasis]

That is, Remes could view the documents in just one place without risking losing his clearance and his ability to defend his client, or even criminal sanctions–a DOJ Secure Facility. Yet DOJ is not going to make the documents accessible there. So he’s SOL; he can’t see them.

Remes goes on to describe how this prevents him from defending his client publicly, specifically because he can’t comment for a big article the NYT did which (IMO) offered a credulous reading of Paracha’s file. While that article contains a quote from ACLU National Security Project Director Hina Shamsi noting that the information in the files is uncorroborated, and while NYT admits much of the evidence derives from KSM whom they note was waterboarded, rather than point out obvious suspect details in Paracha’s file, it simply repeats those details uncritically.

Here’s just one reason why Remes needs to have access to the file to adequately represent his client and refute credulous readings of Paracha’s file:

(S//NF) The plan called for shipping explosives in containers that detainee used to ship women’s and children’s clothing to the US. Detainee agreed to this plan. KU-10024 [Khalid Sheikh Mohammed] claimed in early March 2003, PK-10020 and PK-10018 [Ammar al-Baluchi, KSM’s nephew] were arranging the details with detainee and his son Uzair. KU-10024 stated detainee knew all the details of the plan. Uzair understood PK-10018 and PK-10020 were al-Qaida, but KU-10024 was unsure how much Uzair [Paracha’s son] knew about the actual smuggling plan.8 [my emphasis]

There are, in general, just two kinds of evidence offered by KSM in March 2003: evidence the CIA itself claims was disinformation offered by KSM in his early days of captivity while he was still successfully resisting interrogation, and evidence offered up under torture, potentially one of the 183 waterboarding sessions KSM survived in March 2003.

It’s unclear which category this piece of intelligence falls into, but the use of the verb “claimed” suggests there’s something about the intelligence that may have led even the briefer on Paracha’s file to doubt it.

The intelligence report cited for this detail (and therefore collected in March 2003), TD-314/16519-03, is cited three more times in Paracha’s file, only one of which is corroborated by reports dated 2004 and 2005.

In other words, one of the claims against Paracha can be traced back to a March 2003 interrogation of KSM that no one should consider credible. The entire case against Paracha builds off this early interrogation.

There are a number of other reasons to doubt the “facts” laid out in Paracha’s file. Notably, references to Aafia Siddiqui make no mention of her earlier reported detention by the US in Afghanistan, and instead claims “Siddiqui was detained in Afghanistan in mid-July 2008,” thereby hiding a key detail as to the credibility of any intelligence Siddiqui may have offered (or, just as likely, making no mention of intelligence Siddiqui refuted during years of interrogation in US custody in Afghanistan).

Parts of Paracha’s file reveal real weaknesses in the government’s case against him. These are all very basic details Remes needs to point out, particularly if NYT reporters aren’t going to read the file critically themselves. But given the way the protection order works, he can’t do that.