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Some of those warnings were quickly modified or withdrawn after attracting public ridicule.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.”

 

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.

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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.