“When this opinion came out, we didn’t know much about it. It came out, we started to read it, we looked through it – it looked different. If you’ve read dozens of other opinions, you can tell that this one was very lightly redacted and also seemed to give away quite a bit of information that wasn’t in other opinions. Then, startlingly, it vanished. I remember calling Westlaw, the legal database….and Westlaw let us know right away that the Justice Department, in fact, had asked them to remove it – that it had been resealed. When we heard that, we were already off to the races. Then suddenly five weeks later, a new opinion appears in its place. If you’re not following the habeas docket, if you’re not reading this – you missed it.”
That’s Senior Reporter Dafna Linzer discussing what led her to begin reporting about the two Gitmo decisions and the efforts of the Justice Department to conceal the original opinion from the public. Linzer continues on to explain how Guantanamo detention issues caught the Obama Administration by surprise and why they have not been able to develop a coherent strategy around these cases.
Listen to the complete podcast here and/or read the transcript below.
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Mike Webb: [0:00] Webb: Hi, I'm Mike Webb, and this is the ProPublica Podcast. This week, we're going to talk about the very unusual circumstances that led a federal judge to issue two separate rulings about the same case. [0:13] Senior reporter Dafna Linzer investigated this extraordinary situation, and she's going to join us to discuss it. Linzer was a national security reporter for the "Washington Post," where she covered intelligence and nuclear issues. Before joining the "Post," she was a foreign correspondent for the Associated Press.
[0:29] She's an award winning journalist, and this year she was a finalist along with Chisun Lee and Sheri Fink for the American Bar Association's Silver Gavel Award for reporting on Guantanamo.
[0:41] Welcome to the program, Dafna.
Dafna Linzer: [0:43] Thanks so much, Mike.
Mike: [0:44] All right. Well, before we get to the story, I want to find out how unusual it is for a federal judge to issue two opinions in the same case.
Dafna: [0:53] I think it's extraordinary. We asked classification experts, we asked legal ethicists, nobody could think of a precedent and nobody certainly could think of a case in which we had two opinions for one case. [1:07] Now remember the ultimate decision, the outcome in the judge's ruling, was still the same, it was unchanged, but many of the facts are different in the two opinions.
Mike: [1:18] So how he got to his decision is what we see, is what stands out.
Dafna: [1:24] Absolutely, and also the perception that the public is left with, with regards to the dangerousness of the detainee, and of course that is really at the heart today of many of the public policy debates about Guantanamo and what should happen to those detainees still there.
Mike: [1:39] Should citizens be concerned that a high‑stakes ruling like this got out?
Dafna: [1:44] I think they should be concerned about many aspects of this. I think there's always a good reason, as many secrecy and classification experts will tell you, for things being redacted. There's national secrets and national security issues that are worthy of protection, names such as FBI interrogators. Even for privacy reasons alone in many cases those would be shielded from public view. [2:10] That's not what happened in this case. In this case the things that were kept from the public view were in fact the weaknesses of the government's own case. Issues that the judge himself had weighed and considered and discarded, those issues are what's removed.
[2:24] So the public is left really with a serious misperception of the evidence the judge weighed, and his own reasoning in how he came to order the release of this detainee, and to determine that he after eight years, really almost nine, is being held improperly.
Mike: [2:41] Well, let's talk a little bit about the case. What was the case? Who was the detainee, and what was the outcome?
Dafna: [2:48] The detainee at the center of this case is a Yemeni. He's 31 years old now. He was about 21 when he was first detained. So he's been in Guantanamo really for almost the last decade. He was one of the very first detainees to arrive there, in fact. Detainees have serial numbers that they are issued upon arrival. He's number 27, so he is really one of the earliest of the men to arrive at Guantanamo. [3:17] It's hard for people to remember how long the story has really been going on. This detainee was arrested in a town in Pakistan, not in Afghanistan, in Parachinar, Pakistan.
Mike: [3:28] And the charges against him said Pakistan.
Dafna: [3:31] They did. In fact, the original opinion ‑‑ and remember, we talk about charges. In this case it is a habeas litigation, not so much a trial, whereas the detainee has won the right, as all detainees did in June 2008, won the right to challenge the legality of their detention in federal court. That’s what happening at the center of this case. This detainee has the opportunity to mount such a challenge in federal court. [3:57] So the government has the opportunity to bring all of the evidence they have against this detainee in order to defend itself, and claim that they are properly holding this person as an enemy combatant.
[4:09] In the initial opinion that was published in the court docket in March 16th of this year, Judge Henry Kennedy examined all of the evidence, including as you said initial questions of who this detainee is, where he was captured and why.
[4:28] For this detainee, he was captured in Pakistan. He was with a group of about 30 men. A lot of people in the Department of Defense who have spent a lot of time talking about detainees, refer to this group as the "Dirty 30."
Mike: [4:42] The Dirty 30.
Dafna: [4:42] Indeed, they do. Many of them were Yemeni and are in Guantanamo. The government has not had a lot of success, honestly, in either defending the detention of these detainees, and none of them have been prosecuted in federal court or a military commission, some of them have been released.
Mike: [5:06] Why is this such a precarious situation for the Obama administration politically?
Dafna: [5:11] Many aspects are at the heart of this case that really challenge what was essentially the first promise of a new president to the country, and that was to close Guantanamo. [5:22] As we remember really within the first few days of the Obama presidency, just hours after his inauguration, he issued executive orders focusing exclusively on the legacy issues of the Bush administration, which he inherited; issues regarding detention, interrogation, Guantanamo, and what would happen next.
[5:43] The President talked both as a candidate and in office of the moral stain that he felt the nation was experiencing as a result of Guantanamo, and he sought to close it. That has not happened.
[5:56] Many of the issues actually that were Bush legacy issues continue to this day. One of the issues they are really grappling with is what to do with these detainees. They have not been able to mount real prosecutions. They have not been able to close Guantanamo.
Mike: [6:13] Is there a fear that the Republicans might use this as a political football?
Dafna: [6:18] One of the central challenges really for the Obama administration in this particular case is that as we discovered from our reporting through our sources, this detainee is among a group of 48 detainees that the administration has secretly slated for indefinite detention. [6:34] Long after they envisioned Guantanamo to be closed, they imagined this detainee and dozens more held indefinitely, much as the Bush administration planned to hold them indefinitely at Guantanamo.
[6:46] The issue now is there is a federal judge who is saying a detainee the Obama administration doesn't want to release is in fact being improperly detained. This poses an enormous challenge for the government, and I think that savvy readers of our stories will notice in fact that the Justice Department wouldn't say what it would do if it lost its appeal in this case, which is extraordinary, because they would obviously be violating a court order to release a detainee.
Mike: [7:12] Do you think they were surprised at how dangerous some of these detainees actually turned out to be?
Dafna: [7:17] Oh, I think officials in the Obama administration were surprised on so many levels, and in so many ways. I think that they had really sort of told themselves that much of the problem with detention and the Bush administration policies was simply in the way they were carried out, that the Bush administration just wasn't able or just didn't understand, or just they had a bad attitude or the wrong attitude. [7:44] I don't think they realized until they came in and starting sifting through files and realizing what an extraordinary mess it was, that there were so many detainees, so little information on them.
[7:56] Some of them certainly seemed to pose enormous risk and didn't fit neatly into much of the President's campaign rhetoric and the idealism that came in with a lot of the people around him about prosecuting, about simply prosecuting and transferring detainees in order to close Guantanamo.
[8:15] It simply was a far greater challenge than they envisioned. There's no question.
Mike: [8:20] Do you get the feeling that some of these trials are for show, because if the Obama administration's already declared him an indefinite detainee, then why bother to go through the court process at all?
Dafna: [8:32] This is a question that is really vexing a lot of people, and I think that it came out in two ways this past week. [8:38] One, in our story, because of the strange nature of the fact that this detainee, who won his habeas case, is on this list, and also in the case of Ghailani, who we wrote about this week, another detainee who is the only detainee who is facing a federal trial, a criminal trial in federal court in New York.
[9:03] The government, the Obama administration, tried to present evidence that was obtained through torture, tried to present a witness whose identity was revealed only through the torture of the detainee.
[9:16] When the judge refused, he issued an order ‑‑ this is Judge Kaplan in the southern district ‑‑ basically issuing an order suggesting the entire trial could be seen as a show trial, when he wrote that “even if this detainee wins his case, wins and is exonerated, then the government still has the authority to detain him indefinitely.”
[9:37] I find it very hard to imagine that this detainee could win his case, and the Obama administration would send him back to Guantanamo. I think it just shows you what an incredibly difficult situation they are in.
Mike: [9:51] Now, you also included a sidebar to the piece that analyzed the evidence the government was using against, was it Uthman?
Dafna: [9:58] Yes, it is.
Mike: [9:59] What did you find? What were some of the holes you found in the evidence there?
Dafna: [10:03] Yes, this was really a very layered and textured story. We went through many different narratives here, because we are telling a story of two opinions, we're telling a story of how one vanished, and we're also telling the story of the fact that the first opinion allows us ‑ us, the public ‑‑ for the first time ever to examine the evidence used. [10:24] And I say used by two administrations to continue holding a detainee indefinitely. And that was really eye opening. We saw that the bulk of the government's case against this particular detainee was based on statements from other detainees, and we learned from our reporting that, in fact, 99% of the cases rely on evidence such as this, really on hearsay evidence from other detainees.
[10:50] In this case, the biographical data of these detainee witnesses was extraordinary. One detainee committed suicide three years ago in Guantanamo after months of hunger strikes. This is a detainee who apparently walked through the doors of Guantanamo weighing about 150 pounds and was 80 pounds at death.
[11:11] This is somebody that they relied on, by the way, whose testimony in the case was itself flawed. And Kennedy examines this in both opinions. It's extraordinary.
[11:23] The detainee apparently was used because he claimed, after having seen a photo of Uthman, that he resembled a detainee who used an alias of Yasser Al‑Madani. That would imply that he's from the city of Medina, Saudia Arabia.
[11:43] So the government, using its own testimony, then tried to claim to the judge that the detainee himself must have been mistaken, and he must have meant Yasser Al‑Adani. Well, for English speakers, that's about equivalent to saying, "He's from Boston. He's from Austin."
Mike: [12:01] That's a huge difference.
Dafna: [12:01] They sound really similar if you don't speak English. They sound really different if you do.
Mike: [12:07] Right. Do you have any other examples?
Dafna: [12:10] Oh, sure. There was a detainee, again, a star witness for the government, who was diagnosed by U.S. military psychiatrists at Guantanamo as psychotic and that he had become psychotic as a result of his interrogations and detentions in U.S. custody.
Mike: [12:30] Can you give us a sense of how you got on to this or how you got the opinion?
Dafna: [12:34] Some of this is a result of the fact that we've just been so committed to covering Guantanamo and the detention dilemma. And because we are, we spend a lot of time reading decisions, reading opinions, learning about the detainees, following the policy makers. We covered it from every angle. [12:51] But that means a commitment to reading every opinion that comes out, so when this opinion came out, we didn't know much about it. It came out. We started to read it.
[13:00] We looked through it – it looked different. If you've read dozens of other opinions, you can tell that this one was very lightly redacted and also seemed to give away quite a bit of information that wasn't in other opinions.
[13:13] Then startlingly, it vanished. I remember calling Westlaw, the legal database, to say to them, "Look, I remember printing this up, but now I'm going back in the database, and I don't see it. Where is it? It seems to have vanished."
Mike: [13:27] It's the DOJ's worst nightmare.
Dafna: [13:29] Right. And Westlaw, the nice spokespeople at Westlaw, let us know right away that the Justice Department, in fact, had asked them to remove it – that it had been resealed. When we heard that, we were already off to the races. Then suddenly, five weeks later, a new opinion...
Mike: [13:50] A new one shows.
Dafna: [13:51] That's right, appears in its place. So if you're not following the habeas docket, if you're not reading this, if you're not...
Mike: [13:55] You miss it.
Dafna: [13:56] Absolutely. So then the story changed again. First it was about a missing opinion, then it was about two opinions, then it was about missing information, then it was about witnesses, and then it ultimately was about the detainee himself being in this list of those to be held indefinitely. So you can see it became very layered over time.
Mike: [14:17] This is a perfect example of watchdog journalism.
Dafna: [14:20] We like to think so.
Mike: [14:21] Why is this a ProPublica story?
Dafna: [14:24] Well, I think a little bit for the reason that I said, which is that this was a president's first promise, and I think we take accountability journalism seriously. This is a legacy issue that has vexed two administrations. [14:38] These are central questions about who we are, what rights we have, how we're moving on these kind of issues, and I think that they're important to people who care about this kind of journalism.
Mike: [14:50] Dafna, thank you so much for joining us.
Dafna: [14:52] Thank you.
Mike: [14:53] That was Dafna Linzer, and you can find her report in "Gitmo Opinion: Two Versions of Reality" at ProPublica dot org slash detention. [15:01] Our crack-deputy editor of news applications, Krista Kjellman Schmidt, also put together a table that shows what was deleted and why it matters. She also shows the full text of both of Judge Kennedy's rulings.
[15:14] And for those of you who are hungry to know how we created these pieces, Krista also wrote a nerd blog post about what it took to put it together. Remember you can check those out at ProPublica dot org slash detention.
[15:26] Thanks for listening. As usual, this podcast was produced by Quadia Muhammad. For ProPublica, I'm Mike Webb. We'll talk to you next week.
Transcription by CastingWords