Vanishing Ruling Gives Insight Into the Redaction Process

On March 16, 2010, Judge Henry Kennedy, Jr., of the U.S. District Court in Washington, D.C., granted a habeas petition for the release of Uthman Abdul Rahim Mohammed Uthman. He has been in US custody since late 2001, and has been in Guantanamo Bay, Cuba, since 2002. Uthman was the 44th prisoner in Guantanamo to have his habeas petition heard—of those 44, his is the 33rd to have his detention declared illegal.

Judge Kennedy said, in his March 16 ruling, that several of the government witnesses were unreliable because they had been subject to torture. One of the witnesses had been diagnosed as “psychotic,” and had a mental condition that made his testimony “unreliable.” Prior to publication, the March 16 ruling had been cleared for release by the Justice Department, and marked “REDACTED” at the top of each page. On March 17, the opinion was pulled from the court’s electronic docket, to be replaced several weeks later with a highly altered version of the opinion, missing eight pages of information. The altered version did not mention the “unreliable” government witness, and also deleted the circumstances of Uthman’s capture. Nor does it mention that one of the witnesses relied upon by the government committed suicide in Guantanamo three years ago.

Normally, when an opinion is published, and information is redacted, those portions are marked as such. But this opinion has had whole paragraphs and footnotes deleted, and sentences rewritten. This makes one wonder, is such a wholesale rewrite of an opinion for public consumption unusual, or is this the norm? It seems that, in this case, the Justice Department had approved the opinion before doing a thorough review for classified information, and then gave Judge Kennedy a choice: write a new version that did not include classified information, or the whole opinion would be marked as classified. But the second, rewritten version neither refers back to nor acknowledges the presence of the original opinion. Stephen Gillers, legal ethics professor at NYU School of Law, said that there might be legitimate national security issues, “[b]ut that concern then inspired him to participate in the creation of a parallel universe that fools everyone except a small circle of judges. We don’t allow the justice system to create false impressions.”

Read more at The National Law Journal. For a line-by-line comparison between Judge Kennedy’s original and rewritten opinion, see ProPublica.

Militia members charged in police murder plot

The Justice Department indicted a group of self described Christian militants who were allegedly plotting to kill law enforcement officers in hopes of inciting an antigovernment uprising.

The indictment centers on a Michigan couple, David B. Stone Sr. and his wife, Tina, who led a group of nine people arrested. Eight defendants, including the Stones and their two sons, were arrested over the weekend in raids in Michigan, Ohio and Indiana. Another group later surrendered to police.

The court filing said the group, which called itself the Hutaree, planned to kill an unidentified law enforcement officer and use improvised explosive devices (IED) to bomb the funeral route of the officer. The IEDs were based on designs used by insurgents against American troops in Iraq.

A grand jury had secretly returned the indictments against the nine last Tuesday. The indictment says they stockpiled guns, ammunition and explosives. According to the group’s Web site, it is training to do battle with the Antichrist. They view law enforcement as an agent of the federal government, which they perceive as the enemy.

All nine suspects face charges of sedition, attempted use of a weapon of mass destruction, and carrying a firearm during a crime of violence. Stone and one of his sons also face charges of teaching the use of explosive materials.

A federal judge is expected to decide whether the suspected members of the militia will stay in jail until trial.

See more at NPR and the Washington Post.

Former Employees Say Blackwater Defrauded Government

Two former employees of Blackwater Worldwide have accused the private security contractor of defrauding the US government. The false billing allegedly includes charging taxpayers for alcohol, parties, spa trips and a prostitute.

In court records unsealed this week, a husband and wife who worked for Blackwater said they witnessed the company fabricating invoices, double-billing federal agencies and charging the government for personal expenses. They allege that they observed “systematic” fraud in the company’s security contracts with the State Department in Iraq and Afghanistan, and with the Department of Homeland Security and the Federal Emergency Management Agency in Louisiana after Hurricane Katrina. Blackwater is the State Department’s largest security contractor.

The couple filed the lawsuit under the False Claims Act, which allows whistle-blowers to win a portion of any money the government recovers as a result of the information. However, the Justice Department has decided not to join them in their lawsuit.

Blackwater changed its name to Xe Services LLC last year. The company became a major source of anti-American sentiment in Iraq because of repeated deadly shootings involving its guards. Xe spokeswoman Stacy DeLuke said Thursday that the couple’s allegations are false.

In their suit, the couple asserts that Blackwater officials kept a Filipino prostitute on the company payroll for a State Department contract in Afghanistan, and billed the government for her time working for male Blackwater employees in Kabul. They alleged the prostitute’s salary was labeled as part of the company’s “Morale Welfare Recreation” expenses.

The wife, Melan Davis, worked in Blackwater’s finance department. She questioned how the company could bill the government for its employees’ travel expenses to and from Iraq when it lacked the documentation for those trips. She said corporate officers instructed her and co-workers to create many false invoices for travel, so her bosses could overcharge the government.

Melan Davis argues that Blackwater fired her in February 2008 because she questioned fraudulent billing. Her husband, Brad Davis resigned.

See NYTimes for more.

Location of 9/11 Suspect’s Trial Not Settled

Opposition is growing toward plans to hold the civilian trial of alleged 9/11 mastermind, Khalid Sheik Mohammed in Lower Manhattan.

“My hope is that the attorney general and the president decide to change their mind,” New York Mayor Michael R. Bloomberg said earlier this week. He had previously expressed support for the having trial in New York when it was announced by Attorney General Eric Holder last November.

The many politicians opposed to holding the trial in Manhattan include N.Y. Governor David  Paterson and N.Y. Senator Kristen Gillibrand. Like Bloomberg, senior N.Y. Senator Chuck Schumer changed his mind about the venue. On Thursday, he said that he was encouraging the Obama administration “to find suitable alternatives.”

The alternatives have included other boroughs or the counties north of the city. The suggestions come in the wake of the discussions of high security costs. New York City officials have estimated that it would cost $200 million dollars annually in security, and that the trial could last for years.

Two Obama Administration officials have said that the Justice Department is considering moving the location of the trial and creating plans for possible alternate locations.

See NYTimes for more.

AP Reports on Renewal, Expiration of Patriot Act Provisions

Yesterday, the Associated Press reported on three Patriot Act provisions which are set to expire later this year, two of which will be renewed and modified by a House bill (introduced Tuesday). The provision for tracking a “lone wolf” (terror suspect operating independently of any terrorist organization) will be eliminated. Although the Justice Department has requested that the provision remain in effect, the government has not previously used it.

The two provisions that the House bill will renew involve roving wiretaps and court orders for seizure of documents and other tangible objects. Both will be modified to incorporate greater privacy protection. For example – the former provision, used to track terror suspects who switch from phone to phone, will only be applied to single, identifiable suspects.

You can track H.R. 3845 here. The Senate equivalent, which has been introduced to the full Senate, can be found here.