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Government Could Destroy Records in Hundreds of Guantanamo Cases

Chisun Lee

A stockpile of documents about hundreds of Guantanamo Bay detainees,
some authored by the prisoners themselves, could be destroyed under a
little-known provision of a federal court order the Bush administration
obtained in 2004.

For four years records in the prisoners' habeas corpus lawsuits
challenging the legality of their detentions have been piling up in a
secure federal facility in the Crystal City neighborhood of Arlington,
Va. Because much of the information is classified, the 750 or so
attorneys representing the detainees are required to do and store all
their work on-site.

The provision is part of a broad order [1]
(PDF) issued at the very outset of the habeas cases -- at the last
official count in January, 220 cases remained -- that set rules for how
sensitive documents and attorney access should be handled. It calls for
the government to destroy all classified records given to, prepared by
or kept by detainees' counsel -- including originals and copies of
writings, photographs, videotapes, computer files and voice recordings
-- when the cases end.

Case files already fill 40 to 50 locked file cabinets, and restricted
computer drives hold still more. Documents include captives' letters,
drawings and poems [2],
their attorneys' notes from meetings with them, and reports of their
interrogations, according to several lawyers who routinely access the
files. In some cases they describe the capture, transfer and
investigation of detainees, the identities of their accusers, and the
government's reasons for holding individuals. The lawyers estimate that
a quarter to a third of the records have been marked classified.

Although the lawyers are forbidden from revealing classified details, they could include detainees' personal accounts of abuses [3] and interrogation procedures [4] that have recently been described in secondhand reports. These voices have been missing, the New York Times noted [5] today, because the government refuses to disclose detainees' statements and their lawyers operate under a gag order.

The destruction provision does not appear to threaten court papers and government records, according to a September 2007 letter [6]
(PDF) from the then-chief archivist of the United States, Allen
Weinstein, to concerned open-government advocates. The government is
required to save those records. But letters and notes between detainees
and their lawyers containing classified information will be destroyed,
he wrote, because letting the government keep them would endanger the
detainees' attorney-client confidentiality, while letting detainees'
lawyers keep them would risk disclosure of sensitive information.

The concern that records might be destroyed seemed academic until
recently. The Bush administration had for years fought the captives'
right to bring habeas lawsuits, and the end of the cases seemed nowhere
in sight. But last July the Supreme Court said the cases could proceed.
The litigations, which had sputtered along since 2004, gained steam.
More lawyers began booking hotel rooms near the Crystal City
stronghold, and for the first time they're having to line up to use the
20 or so government computers there.

When the Obama administration vowed to shut the Cuban prison by
January 2010, the lawyers' sense of urgency increased. Attorneys think
that could mean a quick end to some cases, because detainees may waive
their rights to litigate further in exchange for release or transfer.
More than two dozen cases have already wrapped up at the trial-court

Dean Boyd, a Justice Department spokesman, told ProPublica, "We are not
going to destroy any documents pursuant to [the provision] at this
time, nor have we destroyed any." He refused to say whether a set of
the detainees' records would be preserved or whether the administration
would oppose detainees' lawyers, who say they will soon ask the court
to change the order.

David Remes, who represents 20 detainees, said that "volumes of notes"
taken by attorneys could be shredded if the court order is enforced. He
and a group of colleagues have spent 80 to 100 hours meeting with each
of 18 Yemeni clients they represent. He has also spent 30 to 40 hours
with two other detainees. He estimated that 25 percent of the notes of
these meetings include classified information.

He and several other attorneys complained that the government is
over-classifying information and that records posing no threat to
national security could be erased.

Classified status, which is meant to protect national security, is
decided by executive-branch agencies including the military and
intelligence offices. The current standards are set out in a 2003 executive order [7] -- said by open-government advocates [8] and the media [9]
to have significantly expanded government secrecy -- issued by former
President George W. Bush and so far unaltered by his successor.

"There is no way that most of the stuff I'm reading is classified,"
said Marc Falkoff, an assistant professor at Northern Illinois
University College of Law who began representing Guantanamo detainees
in 2004. "I would love to hand you a three-ring binder of all the
documents the government has submitted as justification for keeping one
of my clients in Guantanamo, and you decide for yourself whether the
quality of this information is something you think justifies seven and
a half years in prison."

The government treats any material originating from the detainees as
"presumptively classified," said Gitanjali Gutierrez, an attorney with
the Center for Constitutional Rights who represents Mohammed al Qahtani
-- the alleged 20th hijacker whose military commission charges were
dismissed after a top government official concluded he'd been tortured [10] -- in his habeas suit.

The Justice Department's Boyd confirmed that communications between
detainees and their lawyers are presumed classified, but said that the
court has approved that approach and that there's a procedure for
reviewing whether something is properly classified.

Even if some of the records legitimately need to be classified,
Gutierrez said, they should be preserved to enable a future evaluation
of this time. "Historians are going to go berserk when they find this

It's not unusual for classified court records to be shredded, said
Meredith Fuchs, general counsel of the National Security Archive, a
nongovernmental organization that collects and publishes declassified
documents. But she said these cases have unusual historical importance,
and she's especially concerned that the court order requires
destruction of originals and all copies of certain records.

When the terms of the 2004 order were first being debated, the
detainees' lawyers were struggling just to meet with their clients and
learn the basic details of what they were suspected of doing. The
survival of case records seemed a distant problem, said Remes, who as a
partner at the law firm, Covington & Burling, led negotiations over
litigation rules on behalf of the detainees.

"At the time, we didn't know what we didn't know" about detainee
treatment, said Remes, who left Covington in July to found a human
rights firm. "Document destruction didn't really emerge as a problem
until December 2007, when it emerged that [CIA] tapes of waterboarding
had been destroyed [11]."

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