Guantanamo Case Files in Disarray
Sunday, January 25, 2009
President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials -- barred until the inauguration from examining classified material on the detainees -- discovered that there were no comprehensive case files on many of them.
Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.
Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration's focus on detention and interrogation made preparation of viable prosecutions a far lower priority.
But other former officials took issue with the criticism and suggested that the new team has begun to appreciate the complexity and dangers of the issue and is looking for excuses.
After promising quick solutions, one former senior official said, the Obama administration is now "backpedaling and trying to buy time" by blaming its predecessor. Unless political appointees decide to overrule the recommendations of the career bureaucrats handling the issue under both administrations, he predicted, the new review will reach the same conclusion as the last: that most of the detainees can be neither released nor easily tried in this country.
"All but about 60 who have been approved for release," assuming countries can be found to accept them, "are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people," said the former official who, like others, insisted on anonymity because they were not authorized to talk to reporters about such matters. He acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself.
Obama officials said they want to make their own judgments.
"The consensus among almost everyone is that the current system is not in our national interest and not sustainable," another senior official said. But "it's clear that we can't clear up this issue overnight" partly because the files "are not comprehensive."
Charles D. "Cully" Stimson, who served as deputy assistant defense secretary for detainee affairs in 2006-2007, said he had persistent problems in attempts to assemble all information on individual cases. Threats to recommend the release or transfer of a detainee were often required, he said, to persuade the CIA to "cough up a sentence or two."
A second former Pentagon official said most individual files are heavily summarized dossiers that do not contain the kind of background and investigative work that would be put together by a federal prosecution team. He described "regular food fights" among different parts of the government over information-sharing on the detainees.
A CIA spokesman denied that the agency had not been "forthcoming" with detainee information, saying that such suggestions were "simply wrong" and that "we have worked very closely with other agencies to share what we know" about the prisoners. While denying there had been problems, one intelligence official said the Defense Department was far more likely to be responsible for any information lapses, since it had initially detained and interrogated most of the prisoners and had been in charge of them at the prison.
Pentagon spokesman Geoff Morrell said that the Defense Department would cooperate fully in the review.
"Fundamentally, we believe that the individual files on each detainee are comprehensive and sufficiently organized," Morrell said. He added that "in many cases, there will be thousands of pages of documents . . . which makes a comprehensive assessment a time-consuming endeavor."
"Not all the documents are physically located in one place," Morrell said, but most are available through a database.
"The main point here is that there are lots of records, and we are prepared to make them available to anybody who needs to see them as part of this review."
There have been indications from within and outside the government for some time, however, that evidence and other materials on the Guantanamo prisoners were in disarray, even though most of the detainees have been held for years.
Justice Department lawyers responding in federal courts to defense challenges over the past six months have said repeatedly that the government was overwhelmed by the sudden need to assemble material after Supreme Court rulings giving detainees habeas corpus and other rights.
In one federal filing, the Justice Department said that "the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." In another filing, the department said that "defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis."
Evidence gathered for military commission trials is in disarray, according to some former officials, who said military lawyers lacked the trial experience to prosecute complex international terrorism cases.
In a court filing this month, Darrel Vandeveld, a former military prosecutor at Guantanamo who asked to be relieved of his duties, said evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks."
He said he once accidentally found "crucial physical evidence" that "had been tossed in a locker located at Guantanamo and promptly forgotten."
Staff researcher Julie Tate contributed to this report.