Lawyers for a young Canadian being detained at Guantanamo Bay, Cuba, moved on Monday to complain to the Supreme Court that military officials are encouraging interrogation teams to destroy notes about their activities, suggesting that this raises new issues about the adequacy of Pentagon procedures for deciding who is an enemy and must remain in captivity. A key issue now before the Court in the pending cases on detainees’ legal rights, the letter filed Monday said, is whether the prisoners will have a real opportunity to challenge the reasons for their confinement. That is threatened, it added, by the potential loss of interrogators’ documents. The letter, sent to the Court’s Clerk, can be downloaded here.
The Court probably is close to deciding the cases on detainees’ rights — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) — but it will consider the new filing only if permission is granted to put it in the record of those cases. That is what counsel for Omar Ahmed Khadr asked the Court to do. Khadr, a Canadian national, has been a U.S. prisoner since he was captured during a skirmish in Afghanistan when he was 15 years old. He is now 21, and, as are other Guantanamo prisoners, he is attempting to challenge the Pentagon’s reasons for holding him.
Khadr’s lead U.S. military defense lawyer, Lt. Col. William C. Kuebler, told the Court that he had learned just last week about the existence of a manual to guide interrogators of prisoners at Guantanamo. He said he hoped to get a copy of the manual — with secret material taken out — to send to the Court later this week. “The relevant portion” of the manual, the letter told the Court, “provides that once interrogators have created formal notes or an intelligence information report, they may destroy their handwritten notes.” It also says, according to the letter, that interrogators may have to testify in inquiries about their work, “and suggests that minimizing the number of interrogation-related documents may minimize the legal issues that arise.”
The Court should consider these developments, Monday’s letter said, because “one central issue” now being weighed by the Justices is whether the Pentagon’s tribunals for deciding who is an “enemy combatant” adequately protect the legal rights of detainees. Those proceedings — so-called Combatant Status Review Tribunals — are the Pentagon’s preferred method for determining who is an enemy. Detainees and their lawyers, however, would prefer to make challenges to their detention under the broader remedies in federal habeas proceedings in civilian courts. In the pending detainee cases, the Supreme Court is considering whether Congress validly stripped the courts of authority to hear detainees’ habeas challenges.
If notes of interrogations of prisoners at Guantanamo are now lost, or under threat of being lost, that could deny detainees information they could use in challenging the enemy designation, according to the new letter.  “Interrogators,” it added, “were systematically encouraged to destroy the records and documents that could impeach” the use of hearsay evidence in status review proceedcings.
If the defense lawyers for Khadr are unable to get a redacted copy of the manual for interrogators, to share with the Court, the letter said, they will seek to have the Court accept as a substitute a sworn statement by defense counsel Kuebler describing what he had read in a redacted version of the manual. Kuebler has prepared this affidavit outlining what he found.
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