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Two Versions of an Opinion Cast a Shadow of Doubt

by Hanna F. Madbak, Esq.

The D.C. District Court's substitution of its decision granting Uthman Abdul Rahim Mohammed Uthman's habeas petition casts a shadow of doubt on the transparency and independence of the District Court's habeas rulings.

Uthman - a Guantánamo detainee of Yemeni descent - has been held without charge for nearly eight years. On March 16, 2010, Judge Henry Kennedy Jr. granted Uthman's habeas petition, finding that the evidence presented by the Government was not sufficient to carry the burden of proving, even by the low standard of a preponderance of the evidence, that Uthman received and executed orders from al-Qaida or that he was a bodyguard for Osama bin Laden. Judge Kennedy held that the evidence against Uthman supported nothing more than a charge of guilt by association. But Judge Kennedy's opinion mysteriously disappeared from the Court's docket the day after it was published and was replaced by a new ruling a few weeks later. Former Washington Post national security reporter, Dafna Linzer, now a senior reporter for ProPublica, discovered and documented that while the second opinion reached the same conclusion, eight pages were removed from the first opinion, including key passages in which Justice Kennedy dismantled the Government's case against Uthman.

For example, the second opinion omitted Judge Kennedy's finding that one of the Government's witnesses against Uthman had been diagnosed by military doctors as "psychotic" with a mental condition that made his allegations against other detainees "unreliable." The second opinion also altered the facts surrounding Uthman's capture: the first opinion stated that Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities, but the second opinion stated that Uthman admitted being captured "in late 2001 in the general vicinity of Tora Bora," the cave complex where Osama Bin Laden was thought to be hiding at that time. In Another important change, the first opinion found that some evidence came from a detainee who committed suicide at Guantánamo three years ago after months of hunger strikes, but the second opinion concealed the detainee's name, making any scrutiny of that testimony impossible.

According to some reports, publication of the first opinion was due to a Justice Department oversight that resulted in the opinion being accidentally cleared for public release before Government agencies had the opportunity to redact it.

While Judge Kennedy may have had some national security concerns (even though nothing in the record rationally supports such concerns), legal ethics scholars, such as Stephen Gillers at New York University School of Law, criticized Judge Kennedy for creating "false impressions." "Reconstituting and replacing a judicial opinion without public notice is active deception," said Steven Aftergood, a classification expert with the Federation of American Scientists in Washington. Aftergood continued "There is a role for classification and there are things that need to be redacted, but there is never a justification for deception in the judicial process and that's what this is," "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 Guantánamo 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."

In her ProPublica article, Linzer documented how Government lawyers instructed defense attorneys to destroy their electronic copies of the first opinion, and how Westlaw was asked to remove it from its archives. The D.C. District Court was also complicit in the secrecy by altering its docket entry for March 16. Even if national security concerns may have warranted the redaction of Judge Kennedy's first opinion (which is not the case here), the manner in which it was done raises questions about the independence of the Judicial Branch. This is especially true since nothing that was redacted from the first opinion warrants casting a shadow of doubt on the legitimacy, transparency and independence of our legal system.

Judge Kennedy's decision granting Uthman habeas relief is currently on appeal with the D.C. Circuit. It remains to be seen if and how the substitution of the decision affects the appeal's disposition. Uthman, one of the 48 detainees deemed by the Administration too dangerous for release but not feasible for prosecution, remains detained at Guantánamo.

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This page contains a single entry from the blog posted on February 4, 2011 6:21 PM.

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