Another War of Jenkins' Ear

Resist The Pointless

Guantanamo and the Executive Branch

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Propublica:

When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.

The judges themselves have very little insight into the process and no sway over what is redacted. Government security officials review filings in the habeas litigation and other cases involving classified evidence and remove sensitive information.

In the Uthman case, that clearance process took three weeks. Kennedy’s decision was stamped “Redacted,” by the court’s security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was “secret,” stamped at the top and bottom of each page.

Kennedy’s clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.

In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.

Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Department resisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact material the government wanted to conceal.

This is an excellent report by Pro Publica (not a surprise, they’re the best around at that). But beyond what Pro Publica reports, we as a society can often be in a rush to make everything a political decision, but sometimes it’s just as simple as a bureaucratic error. While the detention involved presidential decisions, the redaction decisions are of a much lower pay grade. One of them got screwed up, with no easy way to make it right. Regardless of whether detention at Guantanamo or elsewhere was done correctly, poorly, or somewhere in the middle, this situation could still exist.

It’s also hard to jump to conclusions about the impact on the judge when the judge will not say what it was:

Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

It is unclear precisely what restrictions or classification requests guided Kennedy’s alterations. Neither the judge nor the Justice Department would say.

Gillers said such editing has an effect on public opinion, even when it doesn’t change the outcome of the case.

There are two competing interests in government redacting: protecting national security and protecting the prosecution. Not surprisingly, both of these institutional interests are alleged:

Officials at other agencies said they had a fairly free hand in removing information supplied for the government’s case. “Whenever a court security officer identifies a document slated for posting on the court’s public docket as potentially containing classified information, the officer refers that document to appropriate agencies for classification review,” Maj. Tanya Bradsher, a spokeswoman for the Pentagon, said.

One government official who spoke on the condition of anonymity acknowledged that the classification process has been plagued with inconsistencies and that no one is coordinating the effort. In most declassified habeas filings, the names of all detainee-witnesses are removed; in others, a name or two slips past the redaction process.

Some government-ordered deletions clearly appear designed to conceal names of confidential informants, associations with foreign intelligence services and the identities of certain federal agents. But the Uthman case shows that many of the deletions go further.

“This censorship has nothing to do with protecting ‘national security’ and everything to do with covering up government mistakes and malfeasance,” said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation. The practice, he said, allows the government to “mislead the American public on issues of profound importance to the country by skewing the perception of who really is at Guantánamo.”

The question is not if both of these interests exist; even if one or both did not, there would at least be a perception of both. The question is how to address them. And the only way to do that is from outside the executive: Congress, the Supreme Court, or ideally both somehow would act in a way to ensure fair procedural safeguards.

The problem is that both institutions have essentially abdicated any responsibilities related to war whatsoever. This has long been the case with the Supreme Court. The laissez-faire attitude peaked in the Korematsu decision that refused to condemn the internment of Japanese-Americans during World War Two. The series of detainment decisions culminating in Boumediene were meaningful but the impacts, as we have seen, have been basically to give far outside limits. And the Congressional action, from the AUMF on, has been absolutely shameful.

My main problem is that for some reason people expect the executive to change this unilaterally. That will never happen. There are four reasons why this won’t happen:

1) No executive is going to be able to completely rid bureaucrats of a desire to protect prosecutors.

2) No president will unilaterally get prosecutors to be more forthcoming on issues of national security, especially when pushing for trust of the national security apparatus is the first thing any new President must do (particularly those with a history of perceived antipathy).

3) Add to this the overwhelming pressure to protect America. No President wants to release the guy who ends up creating the next 9/11 or Cole bombing. Voters would punish that proportionally far more than they would reward a President for releasing someone who the president thinks may just be a mild risk.

4) Presidential leadership on Guantanamo is not the most important variable in change. I thought Jamelle Bouie’s post on this was on the mark:

Yes, Guantanamo closure was a core issue for President Obama, and yes, it was a core issue for his liberal supporters, but it wasn’t a core issue for the Democratic Party, and it needed to be for any chance at success. Given unanimous and vocal Republican opposition to the administration agenda writ large, Guantanamo closure was virtually certain to become a bitter partisan fight. For success, Obama needed a certain level of pro-closure consensus among congressional Democrats. Absent that consensus (and combined with public pressure to the contrary), it was no real surprise to see the White House avoid confrontation: Given limited resources, limited power, and the choice between a hard fight with a small chance of success, and a hard fight with a moderate one, the administration felt best served by investing its resources in the hard fight with moderate chance of success, i.e., health-care reform.

In other words, like Bill Clinton and gays in the military, Guantanamo closure was a high-profile fight that lacked strong support within and outside the party. Obama could have invested further resources in closing the base, but he would have lost ground with health-care reform, stimulus, and other competing priorities. This isn’t to minimize Obama’s failures or the extent to which he has simply embraced large elements of Bush national-security policy, but you can think of an issue like Guantanamo as the price of presidential ambition. When there are many things on the executive plate, some of them have to go by the wayside. This, unfortunately, was one of them.

You can add to this that every electable politician on Guantanamo had the same position as Obama or was much further right (see Romney offering to double Guantanamo). This is why it frustrates me that so many on the left expend all pressure on the matter at Obama, and not on Congress, who is actually 1) pliable and 2) can be changed without massive collateral damage elsewhere.

Obama signed an executive order to close Guantanamo. What happened? The Senate foreclosed any such action by a 90-6 vote. That’s right. Ninety to six.

Until and unless Congress is pushed to engage more on detainee action, the executive will be on an island alone; the Supreme Court will determine the boundaries of that island but little more.

**Edited this post to make clear that the Pro Publica report was -not- politicized.

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Written by John Whitehouse

April 25, 2011 at 9:22 pm

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