The Miami Herald

Files unlikely to help those jailed on flawed evidence

WASHINGTON — Newly released Wikileaks documents detail how the U.S. government held many Guantánamo detainees based on shaky evidence. Even so, the revelations are unlikely to dramatically change their fates.

Rather, the disclosures highlight the flaws of the current system set up by the U.S. government to detain suspected al Qaeda terrorists, said attorneys involved in the cases.

The more than 750 individual assessments of former and current Guantánamo detainees obtained by McClatchy and a handful of other news organizations show a detention system dependent on prison-camp snitches and alleged al Qaeda turncoats.

Based on the Wikileaks documents, McClatchy reported that the allegations and observations of just eight detainees were used to help build cases against some 255 men at Guantánamo — roughly a third of all who passed through the prison. Yet the veracity of the testimony of many of them was later questioned.

While such details about the shadowy detention system may startle the public, lawyers representing the 172 men who remain in the prison knew much of the information — if not more.

As part of the secretive process set up to handle the prisoners' challenges to their detentions, judges have mulled the strength of the very same evidence in closed-door hearings after reading classified briefs.

Gary Solis, an adjunct professor at the Georgetown University Law Center, said the Wikileaks documents could provide lawyers some tidbits about the interrogation of detainees and give them new avenues of legal attack.

That said, Solis said the revelations don't "give a major advantage to the defense" because it's likely they knew much of the information already.

In some cases, judges have ordered detainees released because of their doubts about the government's case, but those detainees are still being held because the U.S. has not found a country that wants to accept them.

Other detainees continue to be held based on evidence that some district court judges have found to be tenuous and unreliable, but the federal appeals court in Washington has not agreed. So far, the Supreme Court has declined to weigh in.

Meanwhile, President Obama's Justice Department has continued to assert that many detainees are too dangerous to release.

"It still remains wholly within the discretion of the executive branch when it comes to freeing any particular detainee," said David Remes, who has represented 18 Guantánamo detainees. "Whatever good these documents may do in any individual case, the fact is at this point the courts can't compel the government to transfer detainees, so the benefit is somewhat theoretical."

Underscoring this point, Attorney General Eric Holder objected to the release of the documents on national security grounds, but shrugged off any possible legal impact on the actual cases.

Eugene Fidell, who teaches military justice at Yale Law School, said: "Net-net, I don't think this material significantly benefits either the accused in the military commissions or the other detainees who are not being prosecuted."

Many detainees have already been released after years of litigation and an acknowledgment by the government itself that the information that was once used to detain them could not be substantiated.

"There's a lot of debunked information in these documents that the government itself doesn't even hold to anymore," said John Sifton, an attorney and investigator who has worked on several Guantanamo cases. "In some respects what we're seeing is a snapshot of the United States government's beliefs from seven years ago."

But that hasn't stopped Justice Department and military officials from warning the detainees' attorneys against referring to the Wikileaks documents in open court proceedings. Officials said the documents should be treated as if they were classified even though they are now public.

Tracy Schmaler, a Justice Department spokeswoman, said" "We're aware that publication of these materials has prompted questions from habeas attorneys about the unusual position they find themselves in, and we're working through these issues right now."

However, lawyers question how the government will be able to provide timely access to hundreds of thousands of documents already released to the public.

Remes filed an emergency request Wednesday asking a federal judge to grant "full and unfettered" access to the Wikileaks documents.

"Any member of the general public can view these files, download them, print them, circulate them, and comment on them," he wrote in his brief. "Undersigned counsel, however, fears that he will face potential sanctions, legal or otherwise, if he does exactly the same things without express government permission."

Other attorneys have speculated that the warning is intended to avoid classified material from seeping into the official court record. As a practical matter, they said they don't expect the Justice Department to prosecute attorneys for mishandling the documents.

But the end result is an "alternate reality" where those who perhaps have the most to gain from the documents are prevented from referring to them, Sifton said. Partly in jest, one Guantánamo lawyer has instructed his Facebook friends not to post anything about Wikileaks on his virtual wall.

"It's tongue in cheek," Sifton said. "But it does show how absurd this is."

No matter what, the release demonstrates that the U.S. government has gathered reams of information that is of questionable legal value.

"You can handpick out unsubstantiated crap about one detainee that someone will argue justifies torture," Sifton said. "Somebody else can pull out another document to show how torture yielded false intelligence that wasted time and money and led to some poor sap being locked up without good reason. But there's a lot of gray area that gets lost in that kind of reading."

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