The Guantánamo Files: Detainees’ Lawyers Can’t Click on Leaked Documents

Except, that is, for the lawyers who represent the prisoners.

On Monday, hours after WikiLeaks, The New York Times and other news organizations began publishing the documents online, the Justice Department informed Guantánamo defense lawyers that the documents remained legally classified even after they were made public.

Because the lawyers have security clearances, they are obligated to treat the readily available files “in accordance with all relevant security precautions and safeguards” — handling them, for example, only in secure government facilities, said the notice from the department’s Court Security Office.

It is only the latest absurdist challenge posed by the flood of classified material obtained by WikiLeaks over the past year: field reports from the wars in Afghanistan and Iraq; State Department cables; and now the military’s risk assessments of 700 past or present Guantánamo prisoners.

Joseph Margulies, a Northwestern law professor who represents Abu Zubaydah, the detainee accused of being a terrorist facilitator who was waterboarded by the Central Intelligence Agency, said he could not comment on the newly disclosed assessment of his client, which is posted on The Times Web site.

“Everyone else can talk about it,” Mr. Margulies said. “I can’t talk about it.”

The ballooning category of public-but-classified documents has befuddled officials and led to a series of unusual pronouncements from government agencies and those who work with them.

In December, Columbia University warned international relations students that commenting on the documents disclosed by WikiLeaks online or linking to them might endanger their chances of getting a government job. The same month, the United States Agency for International Development told workers that viewing the documents on an unclassified computer at work or home could violate security rules that govern their employment. In February, an Air Force unit cautioned that employees and even their family members could be prosecuted under the Espionage Act for looking at the WikiLeaks documents at home.

Some of those warnings were quickly modified or withdrawn after attracting public ridicule. But the general principle that the leaked files remain classified remains in effect, with varying consequences.

Some foreigners applying for asylum in the United States have attached diplomatic cables printed from the Internet that describe repression in their native countries — requiring the Department of Homeland Security to store their applications in special safes and to apply cumbersome security rules.

State Department employees have confided that they read leaked cables on newspaper Web sites at home rather than risk trouble by viewing them at work. A Times reporter who appeared with a State Department official on a recent panel was advised not to show leaked cables as slides — the official was prohibited from looking at them.

But the prohibition for Guantánamo lawyers has serious implications, said Mr. Margulies, who wrote a book on Guantánamo and has represented five prisoners there. Decisions about who gets released have been influenced by politics and public pressure as much as by legal standards, he said.

“It’s important to be able to use these documents to shape and inform the discussion in the public square,” he said. If a leaked risk assessment contains clearly disproved accusations about a prisoner, a lawyer should be able to publicly refute it, he said.

On Tuesday, Attorney General Eric H. Holder Jr. told reporters that he considered the dissemination of the classified Guantánamo documents, prepared under the Bush administration, to be “deplorable.” And he said the Obama administration would not make public, even with redactions, its own assessments of the 240 prisoners who were still at Guantánamo when it took office in 2009.

The new files, Mr. Holder said, “involve a whole variety of information gleaned from a wide assortment of sources, some of which are classified.”

“That being the case,” he continued, “I would be concerned about putting out information that was incomplete.”

Meanwhile, Dean Boyd, a Justice Department spokesman, said the department was trying to answer questions posed by lawyers for Guantánamo prisoners about the restrictions on using the leaked documents.

“We’re working through these issues right now,” Mr. Boyd said. “We simply want to ensure that any information released by WikiLeaks is handled properly.”

 

Classified Files Offer New Insights Into Detainees

 

WASHINGTON — A trove of more than 700 classified military documents provides new and detailed accounts of the men who have done time at the Guantánamo Bay prison in Cuba, and offers new insight into the evidence against the 172 men still locked up there.

The American prison at Guantánamo Bay still holds 172 detainees, most rated “high risk.”

These articles are based on a huge trove of secret documents leaked last year to the anti-secrecy organization WikiLeaks and made available to The New York Times by another source on the condition of anonymity.

Editors and reporters who worked on these articles will be answering select questions about the coverage of the material.

In order to view this feature, you must download the latest version of flash player here.  A detainee at the Guantánamo Bay prison prayed outside his cell in 2007, in an area for the most compliant detainees.

Military intelligence officials, in assessments of detainees written between February 2002 and January 2009, evaluated their histories and provided glimpses of the tensions between captors and captives. What began as a jury-rigged experiment after the 2001 terrorist attacks now seems like an enduring American institution, and the leaked files show why, by laying bare the patchwork and contradictory evidence that in many cases would never have stood up in criminal court or a military tribunal.

The documents meticulously record the detainees’ “pocket litter” when they were captured: a bus ticket to Kabul, a fake passport and forged student ID, a restaurant receipt, even a poem. They list the prisoners’ illnesses — hepatitis, gout, tuberculosis, depression. They note their serial interrogations, enumerating — even after six or more years of relentless questioning — remaining “areas of potential exploitation.” They describe inmates’ infractions — punching guards, tearing apart shower shoes, shouting across cellblocks. And, as analysts try to bolster the case for continued incarceration, they record years of detainees’ comments about one another.

The secret documents, made available to The New York Times and several other news organizations, reveal that most of the 172 remaining prisoners have been rated as a “high risk” of posing a threat to the United States and its allies if released without adequate rehabilitation and supervision. But they also show that an even larger number of the prisoners who have left Cuba — about a third of the 600 already transferred to other countries — were also designated “high risk” before they were freed or passed to the custody of other governments.

The documents are largely silent about the use of the harsh interrogation tactics at Guantánamo — including sleep deprivation, shackling in stress positions and prolonged exposure to cold temperatures — that drew global condemnation. Several prisoners, though, are portrayed as making up false stories about being subjected to abuse.

The government’s basic allegations against many detainees have long been public, and have often been challenged by prisoners and their lawyers. But the dossiers, prepared under the Bush administration, provide a deeper look at the frightening, if flawed, intelligence that has persuaded the Obama administration, too, that the prison cannot readily be closed.

Prisoners who especially worried counterterrorism officials included some accused of being assassins for Al Qaeda, operatives for a canceled suicide mission and detainees who vowed to their interrogators that they would wreak revenge against America.

The military analysts’ files provide new details about the most infamous of their prisoners, Khalid Shaikh Mohammed, the planner of the Sept. 11, 2001, attacks. Sometime around March 2002, he ordered a former Baltimore resident to don a suicide bomb vest and carry out a “martyrdom” attack against Pervez Musharraf, then Pakistan’s president, according to the documents. But when the man, Majid Khan, got to the Pakistani mosque that he had been told Mr. Musharraf would visit, the assignment turned out to be just a test of his “willingness to die for the cause.”

The dossiers also show the seat-of-the-pants intelligence gathering in war zones that led to the incarcerations of innocent men for years in cases of mistaken identity or simple misfortune. In May 2003, for example, Afghan forces captured Prisoner 1051, an Afghan named Sharbat, near the scene of a roadside bomb explosion, the documents show. He denied any involvement, saying he was a shepherd. Guantánamo debriefers and analysts agreed, citing his consistent story, his knowledge of herding animals and his ignorance of “simple military and political concepts,” according to his assessment. Yet a military tribunal declared him an “enemy combatant” anyway, and he was not sent home until 2006.

Obama administration officials condemned the publication of the classified documents, which were obtained by the anti-secrecy group WikiLeaks last year but provided to The Times by another source. The officials pointed out that an administration task force set up in January 2009 reviewed the information in the prisoner assessments, and in some cases came to different conclusions. Thus, they said, the documents published by The Times may not represent the government’s current view of detainees at Guantánamo.

Among the findings in the files:

?The 20th hijacker: The best-documented case of an abusive interrogation at Guantánamo was the coercive questioning, in late 2002 and early 2003, of Mohammed Qahtani. A Saudi believed to have been an intended participant in the Sept. 11 attacks, Mr. Qahtani was leashed like a dog, sexually humiliated and forced to urinate on himself. His file says, “Although publicly released records allege detainee was subject to harsh interrogation techniques in the early stages of detention,” his confessions “appear to be true and are corroborated in reporting from other sources.” But claims that he is said to have made about at least 16 other prisoners — mostly in April and May 2003 — are cited in their files without any caveat.

Charlie Savage reported from Washington, and William Glaberson and Andrew W. Lehren from New York. Scott Shane contributed reporting from Washington, and Benjamin Weiser and Andrei Scheinkman from New York.

View the original article here

The Guantánamo Files: Judging Detainees’ Risk, Often With Flawed Evidence

 Relations between guards and detainees at Guantánamo range from cooperative to dangerous.

WASHINGTON — Said Mohammed Alam Shah, a 24-year-old Afghan who had lost a leg as a teenager, told interrogators at the prison at Guantánamo Bay, Cuba, that he had been conscripted by the Taliban as a driver before being detained in 2001. He had been caught, he said, as he tried to “rescue his younger brother from the Taliban.”

These articles are based on a huge trove of secret documents leaked last year to the anti-secrecy organization WikiLeaks and made available to The New York Times by another source on the condition of anonymity.

Editors and reporters who worked on these articles will be answering select questions about the coverage of the material.

In order to view this feature, you must download the latest version of flash player here.

Military analysts believed him. Mr. Shah, who had been outfitted with a prosthetic leg by prison doctors, was “cooperative” and “has not expressed thoughts of violence or made threats toward the U.S. or its allies,” according to a sympathetic 2003 assessment. Its conclusion: “Detainee does not pose a future threat to the U.S. or U.S. interests.”

So in 2004 Mr. Shah was sent back to Afghanistan — where he promptly revealed himself to be Abdullah Mehsud, a Pakistan-born militant, and began plotting mayhem. He recorded jihadist videos, organized a Taliban force to fight American troops, planned an attack on Pakistan’s interior minister that killed 31 people, oversaw the kidnapping of two Chinese engineers, and finally detonated a suicide bomb in 2007 as the Pakistani Army closed in. His martyrdom was hailed in an audio message by none other than Osama bin Laden.

The Guantánamo analysts’ complete misreading of Abdullah Mehsud was included among hundreds of classified assessments of detainees at the prison in Cuba that were obtained by The New York Times. The unredacted assessments give the fullest public picture to date of the prisoners held at Guantánamo over the past nine years. They show that the United States has imprisoned hundreds of men for years without trial based on a difficult and strikingly subjective evaluation of who they were, what they had done in the past and what they might do in the future. The 704 assessment documents use the word “possibly” 387 times, “unknown” 188 times and “deceptive” 85 times.

Viewed with judges’ rulings on legal challenges by detainees, the documents reveal that the analysts sometimes ignored serious flaws in the evidence — for example, that the information came from other detainees whose mental illness made them unreliable. Some assessments quote witnesses who say they saw a detainee at a camp run by Al Qaeda but omit the witnesses’ record of falsehood or misidentification. They include detainees’ admissions without acknowledging other government documents that show the statements were later withdrawn, often attributed to abusive treatment or torture.

A Growing Wariness

Written between 2002 and 2009, the assessments reflect a growing wariness on the part of Guantánamo analysts. Early on, the reports are just a page or two and often sanguine in tone. By 2008, after scorching publicity about released detainees who joined Al Qaeda and the dwindling of the prison population to hard-core detainees, the assessments are decidedly more cautious.

For every case of an Abdullah Mehsud — someone wrongly judged a minimal threat — there are several instances in which prisoners rated “high risk” were released and have not engaged in wrongdoing. Murat Kurnaz, a German resident of Turkish ancestry, was judged in a 2006 assessment to be a member of Al Qaeda who fell into the most dangerous category: “high risk” and “likely to pose a threat to the U.S., its interests and allies.”

Nonetheless, American authorities, under pressure from both Germany and Turkey, overruled the analysts and sent Mr. Kurnaz home to Germany three months later. He did not join the global jihad but instead became a prominent critic of Guantánamo, writing a book and making countless media appearances to denounce the American prison.

Among the most revealing of the leaked documents is a 17-page guide for analysts, evidently prepared by military intelligence trainers, on how to gauge the danger posed by a detainee. It lists major clusters of detainees, including the so-called Dirty 30, who were the bodyguards of Mr. bin Laden, as well as the large group of accused Qaeda operatives captured with Abu Zubaydah, an important terrorist facilitator, at two guesthouses in Faisalabad, Pakistan, in 2002. It lists nine mosques associated with Al Qaeda, in Quebec, Milan, London, Yemen and Pakistan.

The guide shows how analysts seized upon the tiniest details as a potential litmus test for risk. If a prisoner had a Casio F91W watch, it might be an indication he had attended a Qaeda bomb-making course where such watches were handed out — though that model is sold around the world to this day. (Likewise, the assessment of a Yemeni prisoner suggests a dire use for his pocket calculator: “Calculators may be used for indirect fire calculations such as those required for artillery fire.”)

A prisoner caught without travel documents? It might mean he had been trained to discard them to make identification harder, the guide explains. A detainee who claimed to be a simple farmer or a cook, or in the honey business or searching for a wife? Those were common Taliban and Qaeda cover stories, the analysts were told.

And a classic Catch-22: “Refusal to cooperate,” the guide says, is a Qaeda resistance technique.

Yet the guide appears to be the product of years of experience at trying to turn bits of evidence of varying reliability into a conclusion. Notably, it cites as a cautionary tale the early misjudgment about Abdullah Mehsud, the Pakistani suicide bomber, who had claimed he was forced to join the Taliban. He was “an example,” the guide says, “of a detainee who successfully applied the conscription cover story as a means to secure his release from U.S. custody.”

Scott Shane reported from Washington, and Benjamin Weiser from New York. Reporting was contributed by Charlie Savage from Washington, and William Glaberson, Andrew W. Lehren and Andrei Scheinkman from New York.

 

Justices Decline to Hear Appeal From Chinese Detainees

The prisoners, from the largely Muslim Uighur region of western China, were captured in Afghanistan or Pakistan after the Sept. 11 attacks. They have been determined by the government to pose no threat to the United States, and Justice Breyer wrote that all concerned agree that their detention is “without lawful cause.” The prisoners do not want to be returned to China, where they are considered terrorists and fear torture or execution.

The question in the case, Justice Breyer wrote, is whether judges may order the prisoners to be released here over the government’s objection.

The Supreme Court agreed in 2009 to decide that question, but it dismissed the earlier case last year after the government told the court that it had obtained resettlement offers from Palau, an island nation in the Pacific, and an unidentified second country.

In an unsigned decision last year, the Supreme Court returned the case to the lower courts for further proceedings in light of those developments. “No court has yet ruled in this case in light of the new facts,” the decision said, “and we decline to be the first.”

The United States Court of Appeals for the District of Columbia Circuit, which had ruled against the prisoners the first time around, did so again. In a concurring opinion in that decision from which Justice Breyer quoted on Monday, Judge Judith W. Rogers wrote that the prisoners had not contended that they would have been subject to mistreatment had they accepted the resettlement offers, and that the government deemed the solution appropriate.

Justice Breyer also noted that the government remained willing, in its words, once again to “discuss the matter with the government of Palau” and that it “continues to work to find other options for resettlement.”

Given all of that, Justice Breyer wrote, “I see no government-imposed obstacle to petitioners’ timely release and appropriate resettlement.” But he added that the prisoners remained free to return to court “should circumstances materially change.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Breyer’s statement. Justice Elena Kagan was disqualified from the case because she had worked on it as solicitor general.

Her absence made a ruling for the prisoners unlikely had the court agreed to hear the case, Kiyemba v. Obama, No. 10-775, and the more liberal justices may have taken account of that in voting not to hear it.

The justices took no action Monday on Virginia’s unusual request that its challenge to the recent health care law be heard by the Supreme Court before an appeals court has had a chance to weigh in. The case is Virginia v. Sebelius, No. 10-1014.