"In Gitmo Opinion, Two Versions of Reality": The Obama DoJ screws up (and I heard about it on public radio)

Ideological hack Juan Williams has no reason to complain about his sacking by NPR. Now he's got his cushy $2 million from the Fox Noise propaganda shop, where he fits right in.

by Ken

Isn't it amazing that the Right-Wing Noise Machine can literally make a federal case of NPR's firing of ideologicay whackjob and nitwit Juan Williams? Now NPR is under fire from the usual suspects, spearheaded as always by Fox Noise, in its never-ending crusade to masquerade unmitigated right-wing propaganda as "fair and balanced." (ThinkProgress's Progress Report did a fine recap today, "Beneath Juan Williams' Reality.")

The real complaint to be made about NPR is how centristically milquetoast-y it tends to be. The thing to remember about Juan Williams is that the network had to force him to relinquish his wildly inappropriate "senior national correspondent" status in favor of "analyst" status, though the newer moniker isn't any more accurate. He doesn't "analyze" anything; he just upchucks his cretinous prejudices. Now, of course, he was able to leap into the $2 million embrace of Fox Noise, where his puke is regarded as fancy eatin'. Meanwhile the political arm of the movement beats up on NPR, and while public radio isn't in immediate jeopardy, don't kid yourself, this will hurt, not just at the national level but, perhaps more ominously, at the local fund-raising level.

Or maybe it will inspire more local listeners who are in favor of actual use of the human brain to rally to their stations' support. For once I can breathe easy, having only recently done my renewal -- after the first notification! -- to my local public radio station, WNYC, New York, just ahead of the fall pledge drive, so for once I haven't had to sweat that either.

I mention this because for a week and a half now I've been pushing back from day to day writing about story I happened to hear one day while I was home with the radio on, and WNYC's Brian Lehrer had ProPublica reporter Dafna Linzer as a guest to talk about her new piece, "In Gitmo Opinion, Two Versions of Reality, describing an apparently unprecedented redaction of a federal District Court judge's decision, under pressure from the Obama Justice Department, without any trace left of the original decision by Judge Harry Kennedy Jr. of the D.C. District, leaving a final version that in significant ways substantially misrepresents the facts -- and without any indication that there was an earlier decision, or any indication (contrary to standard practice) of where redactions for national-security purposes occurred.

Former Washington Post national security reporter Dafna Linzer, now a senior reporter for ProPublica, talks to WNYC's Brian Lehrer on Oct. 8 about two startlingly different versions of a judicial decision that ordered the release of a Gitmo detainee.

The case involved the habeas corpus application of Uthman Abdul Rahim Mohammed Uthman, "a Yemeni held without charges for nearly eight years," "accused by two U.S. administrations of being an al-Qaida fighter and bodyguard for Osama bin Laden." Uthman "is among 48 detainees the Obama administration has deemed too dangerous to release but 'not feasible for prosecution.'"

A day after his March 16 order was filed on the court's electronic docket, Kennedy's opinion vanished. Weeks later, a new ruling appeared in its place. While it reached the same conclusion, eight pages of material had been removed, including key passages in which Kennedy dismantled the government's case against Uthman.

In his first opinion, Kennedy wrote that one government witness against Uthman had been diagnosed by military doctors as "psychotic" with a mental condition that made his allegations against other detainees "unreliable." But the opinion the public sees makes no mention of the man's health and discounts his testimony only because of its inconsistencies.

The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government's case were deleted. Even the date and circumstances of Uthman's arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured "in late 2001 in the general vicinity of Tora Bora," the cave complex where bin Laden was thought to be hiding at that time.

As Linzer subsequently explains, the geographical and chronological blurring seems clearly designed to make it seem as if it's possible that Uthman could have been involved in the Tora Bora fighting, whereas the actual facts make it essentially impossible, meaning that the government never had any kind of case, and knew it essentially from the beginning.

There seems general disagreement that DoJ screwed up the clearance of the original decision, which was submitted by the judge in accordance with normal procedure and held for three weeks, then returned with hardly any redaction. But then, as Linzer points out, "The judges themselves have very little insight into the process and no sway over what is redacted." Once Judge Kennedy's clerk received the processed decision, he added it to the court's electronic file, again in accordance with normal procedure.

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.

Nobody disputes the government's right to withhold information on legitimate national-security grounds, the evidence of careful comparison of the two documents (ProPublica had a copy of the briefly posted but since disappeared first version) as well as the combined evidence of Linzer's sources (four, apparently) seem pretty conclusive that national security had little or nothing to do with what happened in this case. There seems rather to have been a whole lot of butt-covering.

The butts being covered were primarily from the previous administration's bungling, but the legal (or illegal) obfuscation was almost entirely the work of the Obama DoJ, for the simple reason that it wasn't until the Supreme Court's June 2008 ruling that the Gitmo detainees's right to habeas corpus was established. Then-candidate Barack Obama --

issued a statement calling the ruling "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy."

Even the seemingly simple and perhaps justifiable expedient of deleting witness's names can have a seriously falsifying effect.

To justify Uthman's incarceration, the government relied on statements from five current or former detainees who were previously discredited by judges in other cases, questioned by internal Obama administration assessments or found unreliable by military psychiatrists because they were mendacious, mentally ill or subjected to torture.

Kennedy's first opinion reveals that some of the government's evidence came from a detainee who committed suicide at Guantánamo three years ago after months of hunger strikes. In the second opinion, the detainee's name is concealed, making it impossible for the public to know he is dead.

I can't begin to do justice to the ins and outs of the case, which of course at every step is shrouded in a secrecy that Linzer reports is sometimes is applied as randomly as it is obsessively. The judicial experts she consulted seem pretty appalled by the government's behavior. For example:

Classification experts could not recall another case in which a second decision was secretly created.

"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. "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," Aftergood said, after reviewing both versions of Kennedy's ruling in the Uthman case.

It's a nasty story. I heard about it on public radio. I wonder whether Fox Noise has covered it.

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