Analysis: The Pentagon’s vast files on detainees
on Jun 1, 2007 at 6:45 pm
The Pentagon, in deciding whether to keep Guantanamo Bay detainees imprisoned, apparently has gathered a vast amount of information about the captives — sometimes from all across the government — but the total file on any detainee is not going to be open for examination by lawyers testing a client’s ongoing detention, and not made available to a reviewing civilian court. That is a situation — not fully clear until now — that appears to lie at the core of the deep controversy between government officials and detainees’ lawyers about how much chance a detainee is gong to have to challenge in court a military decision to prolong the confinement at the military prison camp in Cuba.
The impression of a very wide gap between what detainees’ lawyers are seeking and what the government is willing to let them see emerges from a new filing that the Justice Department made in the D.C. Circuit Court on Friday. It was a 12-page declaration by a high-ranking Pentagon official, heavily involved in detainee policy — retired Rear Admiral James M. McGarrah. It describes how military officials have built up their files about hundreds of detainees previously held or still held at Guantanamo, and what part of those files is submitted to so-called “Combatant Status Review Tribunals” — or CSRTs — that the military has been operating at Guantanamo since 2004.. The CSRTs are the military’s review panels that decide whether an individual held at Guantanamo is an “enemy combatant” and thus cannot be set free. (The government motion seeking to file the McGarrah declaration can be found here.)
Lawyers for detainees have argued for months that the CSRT process is entirely result-oriented, and that both the process itself and especially the information flowing to such panels from the Pentagon and the military is tightly controlled to produce desired outcomes, as well as to severely limit any review by the civilian courts. The Pentagon and Justice Department have responded to those complaints by saying that the tasks assigned the CSRTs are very limited in scope but that very little has been held back from detainees’ lawyers and certainly not anything considered favorable toward a detainee, and that civilian court review was designed by Congress to be a narrow one that makes sure that Pentagon rules were followed, not the equivalent of court review of a criminal conviction in a regular appeals court proceeding..
Sorting out who is right in that controversy is now the task of the D.C. Circuit Court, at least initially, but the dispute is almost certain to wind up eventually in the Supreme Court. The newly released McGarrah declaration seems sure to figure prominently in the ongoing judicial review of detainee policy and procedures.
Under the Detainee Treatment Act of 2005, the D.C. Circuit Court has the assignment of reviewing whether, for any given detainee, a CSRT proceeding operated properly. Now that the Supreme Court has opted, for the time being, not to hear detainees’ claims about the legal adequacy of the CSRT process, the Circuit Court is moving ahead to define the nature of its review — and, in the process, to decide what kinds of government information must be shared with detainees’ lawyers and, ultimately, with the D.C. Circuit as it performs its review task.
The D.C. Circuit Court began publicly exploring its assignment at a hearing on May 15. McGarrah’s declaration was submitted to the Circuit Court to more fully respond to questions that judges on a panel asked at that hearing about the scope of the government’s disclosure duty towards detainees and towards the Circuit Court. The Justice Department told the Circuit Court two days after that hearing that it would follow up with “a declaration to describe” how CSRT records “were compiled and their contents.” Friday’s filing was the result.
While the transcript of the May 15 shows some disconnect between the judges’ understanding and that of government lawyers about how the CSRT process works in practice, it was clear that at least two of the three judges were skeptical that their Court would be able to accomplish its review with only the limited official information the government was willing ot produce.
Government lawyer Douglas Letter told the Court that the information a CSRT would see about a detainee was basically what a government official called a “recorder” selected for it to see. The recorder must offer evidence that would favor the detainee’s claim not to be a combatant, Letter said, but there could be in government files “a massive amount” of evidence that the CSRT would not see.
Chief Judge Douglas H. Ginsburg commented: “I don’t see how there can be any meaningful review [by the Court]. Maybe you can tell me. How we can, any meaningful review of the determination if we don’t know what we don’t know, but you know.” Ginsburg also commented that what Letter was describing was “a wholesale, a complete departure from any kind of adversarial system.” Detainees’ lawyers, he added, “are not necessarily relegated to simply picking apart the reasoning of the tribunal.”
It was exchanges like that, and other references to the nature of the CSRT record, that prompted the Justice Department to offer the McGarrah declaration.
The retired admiral, who headed a Pentagon office that oversaw detainee policy for nearly two years and is now a special assistant to the Pentagon official in charge of detainee affairs, described an information-gathering system that started small and then spread into a multi-function operation with scores of staff members — part of the overall contingent of more than 200 civilian and military personnel working on CSRT matters.. A team was set up with authority to reach across government agencies, and plumb their files for any information about individual detainees — including anything favorable toward a detainee. They would pass the information to the “recorders” that were supplying data to the CSRTs.
Much of the information gathered wound up in a large database at the Pentagon, called the Joint Detainee Information Management System. This, the Pentagon official said, “is an information management tool developed and used primarily to support interrogations” of detainees. It is a large repository, McGarrah said, “but does not and could not hold all information that is in the possession of the United States Government regarding a particular detainee.”
As part of the process of moving “government information” out of various databases and into the hands of the recorder for submission to CSRTs, the government, according to the declaration, drew a sharp distinction between “government information” and “government evidence.” Only the latter was given to the CSRTs.
Under Pentagon rules for the CSRTs, those panels are to gather all information “readily available from the government,” but the operation led by McGarrah put together narrower files of what it considered to be “government evidence,” and that is what the CSRTs were given. The retired admiral said that the files did not necessarily include everything that would qualify as “government information,” but even the more limited “evidence files” were not always supplied in full to CSRTs.
Some was withheld because of its intelligence “sensitivity,” the declaration said. If an intelligence agency objected to use of some information as evidence, “it was deemed ‘not reasonably available,'” McGarrah said. Release of some of that material, he said, might reveal intelligence “sources and methods.”
Some of the evidence files’ contents were held back by the recorder because they were duplicative, and some was not provided to the CSRTs because what had been offered was “sufficient to support the detainee’s classification as an enemy combatant.”
Near the close of his declaration, McGarrah said that, during a change-over from one computer system to another, some of the “evidence” files that had been prepared and that were in electronic form “were corrupted.” This, he said, “has made it difficult to fully recreate the electronic files of government information compiled for each tribunal.” An effort is now being made, he added, to try to retrieve some data from stored archives “to see if it is possible to recreate the files.” As of now, he said, the Pentagon :is uncertain whether this is possible.”
The detainees’ lawyers are expected to file a response to the new filing, and it is predictable there will be considerable objection.
