Reporter uncovers two versions of Guantanamo opinion

Rosemary Lane | Secret Courts | Feature | October 12, 2010

A federal judge’s original ruling on a Guantanamo Bay detainee’s habeas corpus case disappeared and was replaced weeks later with a new ruling containing major deletions and no notice to the public of a change, a ProPublica reporter found.

On March 16, District Judge Henry Kennedy Jr. granted prisoner Uthman Abdul Rahim Mohammed Uthman’s writ of habeas corpus after he had been held at Guantanamo for seven years. The next day, Kennedy’s 28-page opinion was missing from the court’s electronic docket, ProPublica reporter Dafna Linzer wrote.

A few weeks later, a new 20-page opinion surfaced. While the conclusions were the same, eight pages and original footnotes were missing, sentences were rewritten and information was deleted -- all without redactions notifying the public that the opinion had changed or that an original opinion had been published, according to Linzer's article.

Linzer spent five months researching the case after she noticed the original ruling had vanished.

“It immediately looked unusual to me because the redactions were so minimal when they’re always so heavy, and it disappeared,” Linzer said of the first court opinion.

Uthman was accused by the Bush and Obama administrations of being a member of al-Qaida and a bodyguard for Osama bin Laden. Kennedy granted Uthman’s writ after deciding that testimony against him from Guantanamo Bay prisoners who had been tortured at the time they provided their testimony was unreliable, the court documents said.

The original court ruling stated Uthman was seized "in or near" Parachinar, Pakistan, on Dec. 15, 2001, with a group of about 30 men.

The second opinion excludes details of the exact date Uthman was captured, the circumstances surrounding his arrest and states that he was captured near Tora Bora, Afghanistan. The report also omits information about Uthman’s schooling at the Furquan Institute, a religious high school that other members of al-Qaida had attended.

In addition, while the first report referred to one witness as “psychotic,” rendering his damning testimonial against Uthman unreliable, the second opinion glossed over details and ruled the testimony wasn’t credible, according to the article.

The new opinion was written by Kennedy after the first opinion was accidentally cleared for release before confidential information was redacted, the ProPublica article said. The Justice Department did not want to release the original opinion again with sections redacted, as it would draw too much attention to the information omitted from the second opinion, Linzer wrote.

Victor Hansen, a law professor at New England School of Law in Boston, said the public has limited options in challenging the court's moves. He said this case is unusual and raises questions about how often this happens.

“What made it so more extreme is that they’re trying to create this new history that this first opinion never existed,” Hansen said. “That’s weird, and somewhat troubling.”

Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, said the action casts a shadow of doubt on legal proceedings and remedial action should take place.

“It doesn’t reflect well on the whole process, it makes it look like they are all improvising and making up the rules as they go along,” Aftergood said. “I think there has to be a response either from the judge or from the Judicial Conference to prevent anything like this from happening again.”

According to Linzer’s article, Justice Department officials are appealing Kennedy's ruling.