STEVE INSKEEP, host:
This week we've been reviewing some secret reports on the prisoners at Guantanamo Bay. Since 2008, they've had the right to challenge their detention by filing what is called a habeas corpus petition. In more than 40 cases so far, the government has had to show a federal court that it has good reason to keep a detainee locked up. The court doesn't always agree. As NPR's Tom Gjelten reports, judges and intelligence agents may look at the same information and come to different conclusions.
TOM GJELTEN: We're going to look at two men here who filed habeas petitions challenging their detention at Guantanamo. According to classified reports, intelligence agents at Guantanamo put both men in a high risk category - likely to pose a threat to the U.S. if released.
First, listen to what was written about a Kuwaiti detainee, Fouad al-Rabia, in 2008.
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Unidentified Man: Detainee is an al-Qaida member who met with Osama bin Laden at least four times. Detainee may have provided training to some of the individuals involved in the 11 September 2001 terrorist attacks. Detainee has associated with numerous Islamic extremists...
GJELTEN: The statements are said to come largely from al-Rabia's own confessions. But a careful review of all his files comes up with another story. Turns out many of the accusations came originally from another detainee whose own credibility was later called into serious question.
Defense attorney Matthew MacLean.
Mr. MATTHEW MACLEAN (Defense Attorney): A new team of interrogators came in. They initiated a very harsh program utilizing a number of techniques that, ultimately, over a period of several months, broke him down to the point where he basically started parroting back to them whatever they said.
GJELTEN: Al-Rabia had been told he could go back to Kuwait if he confessed, but that if he denied the accusations he'd have to stay at Guantanamo. None of this comes out in his detainee assessment. But the judge who considered his habeas petition saw it all. If there exists a basis for al-Rabia's detention, it most certainly has not been presented to this court, she ruled. The government did not even bother to appeal. Al-Rabia was returned to Kuwait.
Another case: Musab al-Mudwani - described in his file as an al-Qaida operative in Karachi, Pakistan who planned to join in terrorist attacks against U.S. forces there. When his habeas petition came before a court, the U.S. government filed 26 statements in support of al-Mudwani's detention. Twenty-three of them were thrown out. Al-Mudwani had previously been subjected to interrogations so coercive that the judge said the information al-Mudwani later offered was unreliable.
The judge did allow three statements, enough to approve al-Mudwani's continued detention. But he was hardly impressed by the government's case. The court fails to see, the judge wrote, how the petitioner poses any greater threat than the dozens of detainees who have been transferred or cleared for transfer.
Two cases where judges and intelligence analysts, looking at the same information, fundamentally disagreed on how a detainee should be assessed.
Benjamin Wittes, a senior fellow and national security blogger at the Brookings Institution, points out that judges and intelligence analysts have very different roles.
Mr. BENJAMIN WITTES (Senior Fellow, National Security Blogger, Brookings Institution): And they're asking different questions, and sometimes one will be shown to have been asking the right question, and sometimes another will be shown to have been asking the right question, you know, and that's why we generally don't put intelligence analysts in charge of the law and why we generally don't put judges in charge of intelligence analysis.
GJELTEN: An intelligence analyst has to worry about getting as much information from a detainee as possible and may therefore have a reason to keep that detainee locked up. At Guantanamo, there was also an enormous volume of material. The analysts had hundreds of detainees to review. Attorney Matthew MacLean notes that those who decided which detainees were dangerous may have not had the time to assess the information on which they had to base their decisions.
Mr. MACLEAN: You can't do it without looking to see what's behind it. We ultimately were able to do that ourselves with the information that the government provided, and the judge was able to see that too. What any other analyst or assessor has seen, I couldn't say.
GJELTEN: Different interests: a judge, focusing on justice, may value rigor in the assessment of a detainee; an intelligence analyst, focusing on security, may worry more that no threat goes unnoticed.
Tom Gjelten, NPR News, Washington.
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