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Judge: US Used Mentally Ill Witness in Guantanamo Cases

Marisa Taylor

A guard talks to a prisoner inside Camp Delta in Guantanamo Bay. (AFP/File/Paul J. Richards)

WASHINGTON - The Justice Department improperly withheld important
psychiatric records of a government witness who was used in a
"significant" number of Guantanamo cases, a federal judge has

The government censored parts of the records, but enough has been made
public that it's clear that the witness, a fellow detainee, was being
treated weekly for a serious psychological problem and was questioned
about whether he had any suicidal thoughts. The witness provided
information in the government's case for detaining Aymen Saeed Batarfi,
a Yemeni doctor who the government announced last week it would no
longer seek to detain.

a little-noticed ruling last week, Judge Emmet Sullivan found that the
witness's testimony in other cases could be challenged as unreliable.

a hearing last week, Sullivan castigated the government for not turning
over the medical records and ordered department lawyers to explain why
he shouldn't cite them for contempt of court.

"To hide relevant
and exculpatory evidence from counsel and from the court under any
circumstances, particularly here where there is no other means to
discover this information and where the stakes are so very high . . .
is fundamentally unjust, outrageous and will not be tolerated,"
Sullivan said, according to a transcript of the hearing.

"How can
this court have any confidence whatsoever in the United States
government to comply with its obligations and to be truthful to the

He also criticized the government for deciding at the
last minute to drop the case against Batarfi, who's been held at
Guantanamo for seven years, and questioned its motives for doing so. He
suggested that the government's announced plans to seek a country that
would take Batarfi were really just a scheme to continue to detain him
without due process.

"I'm not going to let this case drag on, or
any of the other cases on my calendar, indefinitely while the
government embarks on what it calls its diplomatic process, bcause I
have seen in the past that that diplomatic process can indeed span
months and years, and I have some serious concerns as to whether it's
yet and still another ploy . . . to continue with his deprivation of
his fair day in court."

Sullivan ordered government attorneys to
return in 14 days to report on the progress in freeing Batarfi "and
every 14 days thereafter."

"I'm not going to continue to tolerate
indefinite delay on the part of the United States government," Sullivan
said. "I mean this Guantanamo issue is a travesty . . . a horror story
. . . and I'm not going to buy into an extended indefinite delay of
this man's stay at Guantanamo."

It's unclear what information the
witness, who wasn't named, provided against Batarfi or the other
detainees. Separately, the Justice Department decided last week to
release Batarfi, signaling that it no longer had sufficient evidence
that he was an enemy combatant although he was held for seven years.

ordered the Justice Department to notify other judges of the
psychiatric records so they could assess whether the government's
failure to reveal the extent of the witness's mental problems have
bearing on other detainee cases.

Court records appear to indicate
that the witness had an antisocial personality disorder. In a legal
brief, Batarfi's lawyers point out the diagnosis could mean the person
is prone to lying and lacks regard for the difference between right and

"Given the nature of the medical records about this
particular detainee it is difficult to conceive how the government
might offer him as a credible witness," said Batarfi's lawyer, Bill
Murphy, who said he couldn't reveal information about the witness
because of a court order.

Justice Department lawyers say the
medical records were released inadvertently to Batarfi's lawyers and
argue that they'd already released documents that raised similar
questions about the witness's reliability, as required under evidence
sharing rules.

"Indeed, (the government's) prior disclosure of
information undermining the credibility of the detainee-witness was
much more explicit and likely to be far more helpful to the
petitioner's case than the medical record at issue" said Justice
Department spokesman Dean Boyd in response to questions about the

Sullivan, however, was skeptical of the government's
explanation and warned that "someone's going to pay a price" for not
disclosing the information.

"The sanction is going to be high,"
he said. "I'll tell you quite frankly if I have to start incarcerating
people to get my point across I'm going to start at the top."

Sullivan presided over the corruption trial of former Alaska Republican
Sen. Ted Stevens and was similarly critical of the Justice Department's
handling of evidence in that case. Attorney General Eric Holder
recently asked the judge to dismiss the indictment against Stevens
after concluding prosecutors withheld important evidence from the
defense in the case.

The discovery of the records in Batarfi's
case raises larger questions about the quality of the government's
Guantanamo witnesses and whether the government has fulfilled legal
requirements to provide the detainees' lawyers with evidence that could
clear their clients.

According to court records in a separate
case, an unidentified government witness who was believed to have
psychiatric and substance abuse problems provided information to the
government about 40 other detainees.

And earlier this year, news
reports revealed that the government relied on testimony by detainee
Yasim Muhammed Basardah for evidence in dozens of cases although his
reliability was questioned by military officials. Last week, a federal
judge ordered him released, although the government is unlikely to free
him anytime soon because it says he can't be sent back to his native
country, Yemen.

Batarfi, the doctor, is also unlikely to be
released because of similar problems. There are nearly 100 Yemenis
among the 240 or so Guantanamo captives, in part, because Bush
administration officials never succeeded in negotiating a repatriation
agreement for those who'd been earlier approved for release.

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